The coronavirus pandemic is proving to be the rare force that can foster cooperation between attorneys on opposite sides of litigation, according to Kirkland & Ellis LLP partner Sierra Elizabeth. The Los Angeles-based lawyer spoke to Law360 about how attorneys are working together through lockdown and what might come after.
Elizabeth is used to a busy travel schedule and a practice that ranges from winning a trademark infringement trial for Allstate or personal injury trial for Warner Bros. to representing ex-Viacom CEO Sumner Redstone's girlfriend in the sprawling drama over the media mogul's wealth.
With the courts still far from opening back up for jury trials, Elizabeth recently talked to Law360 during a 30-minute interview about the importance of using technology to maintain her connection with her colleagues and how the pandemic is bringing parties to the negotiating table.
This interview has been edited for length and clarity.
How are you handling delays in cases you thought would be going to trial by now?
Although our trials are delayed, I don't feel like I have more time. Every client is reacting differently.
One client now is very interested in reengaging on the mediation front, trying to resolve a case that we've always believed was a resolvable case. We didn't necessarily know if the other side was at a point where they would be reasonable in settlement discussions, and because of COVID-19, attitudes have necessarily changed. So we think there might be a good opportunity to engage on the mediation front.
In another case, we are moving forward on doing some jury research exercises: Do we want to do survey calls with potential jurors in jurisdictions that are similar to the one where we will try the case? Do we want to put together what our jury exercise is going to look like and work on our mock examinations, PowerPoint slides, etc., so that when social distancing lifts we're ready to go?
Other clients have said, "you know, this is a good opportunity to put things on hold for a second," so we've done that in other matters as well.
And others are contemplating things like, "well, we have depositions still left to complete before we were to get to that trial date anyways; are we going to go forward with those, and what does that look like?"
There have been a lot of conversations at my firm and in the legal industry in general about whether remote depositions are favorable, whether they'll be required, what platforms we want to use, what that will do to our cross-examination questions and how the witness responds. Because we're not there, we're looking through a video screen.
Have you done any remote deposition or mediation work yet?
I have in my career, I did it a couple of times probably several years ago. I had some depositions in New York. I'm in California, and it was a case in which we were trying to save some money, so we did a couple of remote depositions in that case.
The technology wasn't new by any means, but I believe it's improved significantly since then.
I wouldn't say I loved the process, but it worked very well. We were able to ask the questions we needed to ask, bring up the documents electronically, the exhibits that we needed to show the witness, and have some control over that.
I do think what might end up changing in the legal industry because of COVID-19 is clients asking for us to take remote depositions more than they have in the past.
It definitely is a cost-saving measure, so that's always a part of the analysis. I haven't had any experience where a client has forced that upon us — they've always left it to our discretion — but that may change after this pandemic.
What would be the downsides of doing remote depositions?
It takes a little bit of what I would call on-the-fly trial and litigation skills away. Obviously we're preparing extensively before any deposition, but there are always things that seem to come up where you need to be a little bit more dynamic.
The other thing, and the biggest concern for us, is when you're staring somebody in the face and asking them a question, I think there's a bit of a difference compared to when you're looking at them on the computer screen.
As a trial lawyer, you always want to get a sense of the surroundings, the environment, the person's demeanor. And you get a lot of those social cues from being in the same room with that person or their lawyer. So I think we're a little bit nervous that you lose that element.
For this reason, it might be more advantageous for the attorney who's defending his client to do a remote deposition than the person who's actually asking questions of the deponent.
What does your daily routine look like right now?
It is somewhat the same and somewhat different. As I mentioned, I was on the road a lot, so I was used to working remotely, with my laptop, on a plane or in a hotel room. So I was already scheduling calls with colleagues that I wasn't in front of in-person and doing things like that.
We've started to utilize Zoom calls, and Webex, things like that, which we've always had access to but didn't really use as much as we are now. We've realized that all of our communications now are via phone and we're not able to see each other. Sometimes it just helps [to see your colleagues], for collaboration and also for morale.
Are the coronavirus court closures leading to an unusually long time between trials for you? What are you doing to keep your skills sharp?
As a big-firm lawyer, I probably go to trial more often than most of my colleagues. I think I average a trial a year, although there have been a couple years where I had no trials, and one year where I had four, so it always ebbs and flows and we're used to that.
One thing that we do as a firm that I think is great and always keeps our trial skills sharp is we have a trial advocacy program that we run internally.
But otherwise, I think collaborating with my colleagues every day and thinking through our cases and doing some strategy is great. And oftentimes we're inheriting cases that are going to trial, in let's say 30 days or so, and so we're scrambling to get up to speed.
This has actually been a nice time to sit back a second and think about bigger-picture strategic issues and how we want to frame certain things. Sometimes when you're under the gun, you don't get to do that as fully as you might now.
Do you think that extra time will show up in the outcome of those cases?
I guess there can be such a thing as too much time. Once you've got it down, you can't second-guess yourself.
But as long as this ends in the near future, I think this extra time will be a great benefit for our clients.
Being able to think through multiple levels of analysis and come up with a collective understanding and strategy is certainly going to benefit the cases, certainly going to help streamline budget issues going forward.
I wish we could have that for every trial. ... Not to say that we're not giving it our best with less time, but I do think we're taking advantage of this time in a way that's only going to benefit our clients.
How have you adjusted to working from home? Any problems setting up the home office?
Well, as I said before, I work remotely all the time so I didn't think it would be a difficult transition for me, but it has been in some respects. I didn't realize how much I enjoyed going into the office when I'm in Los Angeles.
Interestingly, I'm a millennial but I'm on the older end of the scale, and a lot of our younger millennials and Gen Zers, they've always been comfortable being remote. They've lived in the world of the iPhone almost their entire lives, but I actually think an unintended consequence of this thing is they will actually want to come into the office more.
It gives you an appreciation of what you have, that you didn't really notice before.
What are you looking forward to most about when the stay-at-home orders are lifted?
My off-hand answer is a happy hour.
Right before all this happened, in February, we were celebrating Black History Month. I am the Black Affinity Group leader of our Los Angeles group. And so I did do a happy hour and it was open to everyone in the office and we had an amazing turnout. It was really great.
It's funny because you take those things for granted, and it's funny because it was just an excuse to get together for drinks but it really was such an amazing time to bond with your colleagues.
Is there anything I haven't asked about how the pandemic is impacting trial advocacy?
Maybe something you haven't heard from others, I think a lot of time litigation is so adversarial, it's my side versus the other side, and lawyers can fight over things that maybe nonlawyers think are a waste of time.
And in this process, I will say every opposing counsel I've had to deal with has just been really amazing in terms of making sure we're only arguing about things that are really important. And making sure we're giving people ample time to schedule calls and not complaining about it and ignoring the screaming child in the background and not filing unnecessary motions.
That's just a nice thing when you know you represent different sides and there can be moments of disagreement but you're all trying to work together knowing that everybody is going through immense stress at this unprecedented time.