A North Carolina appellate court recently ruled that civil litigants need counsel physically present when they are deposed.
This wholesale ban on personal attendance of Defendant’s counsel at
depositions of its own employees and witnesses presented the constitutional issue
Defendant asserts in this appeal and was not supported by existing law, emergency
orders, or evidence. The trial court’s order violated Defendant’s constitutional right
by prohibiting counsel from being physically present at depositions of its own
employees and witnesses. We reverse and remand for further proceedings.
A link to the opinion is here.
Using technology, courts have tried to conduct business as usual during the pandemic but there are some things – like trials – that are difficult to conduct remotely. For the sake of judicial economy and moving cases forward, lawyers and judges have used remote appearances to accommodate one another safely in the pandemic. But there is a point at which remote participation falls short. The North Carolina court reasons that the right to sit with your counsel is one of those points where technology falls short.
Things happen during depositions. They aren’t scripted and it is difficult sometimes to determine when significant issues requiring personal appearance together will arise. Personal and physical contact between counsel and client – particularly during testimony – can be essential and shouldn’t be governed by a blanket order prohibiting all personal appearances together.
On the other hand, having represented and sued many hospitals over the years, I would like to point out that the court should also be clear about not allowing any party or their counsel to use the pandemic to unreasonably delay proceedings. In my experience, this appeal by the hospital lawyers is exactly the kind of thing defendants love to use to obstruct and delay the progress of a case – particularly, a very meritorious one.
