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From “New Normal” To Now Normal: The Pandemic’s Influence On Litigation In Nevada

“The COVID-19 pandemic upended the practice of law in ways that will continue to impact litigation in Nevada for years to come.” Read more from Nevada lawyers Laura Langberg and Maliq Kendricks 👇

The COVID-19 pandemic upended the practice of law in ways that will continue to impact litigation in Nevada for years to come. From initial delays due to court closures and the clumsy transition to work-from-home environments, firms quickly pivoted to meet client needs as businesses modified strategic plans to preserve resources and embrace the unknown amid statewide shutdowns. Out of necessity, we collectively adapted our behaviors and expectations. We began calling it “the new normal”—an apt but now tired term for the hodgepodge of evolving adjustments to life and practice.

Some adjustments have impacted law firm culture across disciplines. Videoconferencing has become an acceptable substitute for in-person meetings. Advances in secure, remote-work technology are empowering people to work from anywhere and take more working vacations. Although expectations vary among firms of different sizes and backgrounds, the Nevada market is adapting. The “great resignation” and other economic factors contributed to a seller’s market where staff and attorneys increasingly expect more flexibility in their schedules. These expectations present their own challenges, including in training and mentoring a new generation of tech-savvy professionals with fresh perspectives on traditional law firm practices.
For litigators, the impact of pandemic-era adjustments remains in flux. Although delays in trial dates and resolution of motions have been a big part of the pandemic story for litigation in Nevada, courts’ backlogged dockets will catch up in time. Perhaps more interesting to track in the long term is Nevada judges’ ongoing receptiveness to remote appearances, which became particularly prevalent in jurisdictions like the Eighth Judicial District where live hearings on motions were the pre-pandemic norm. The ability to appear remotely has been a welcome development for many practitioners given the valuable efficiencies they create for clients and counsel. However, now that courts are open, some judges expect attorneys to appear in person. Others now strictly enforce the Supreme Court of Nevada’s rules governing requests to appear by audiovisual means, which require advance notice.

Nevada’s state and federal judges are also more likely than ever to order parties into remote depositions under NRCP and FRCP 30(b)(4) when presented with scheduling or travel disputes. In addition to the general time and cost savings that likewise make remote court appearances attractive, remote depositions benefit clients who may otherwise elect to forego out-of-state depositions due to prohibitive travel costs. On May 9, 2022, the Eighth Judicial District implicitly recognized the benefits of remote depositions when it issued Administrative Order 22-08 regarding deposition behavior. The order acknowledges that depositions will normally take place in person, but reiterates NRCP 30(b)(4)’s “good cause” standard for requiring depositions by remote means. The order also articulates the rule set forth in Supreme Court of Nevada precedent that “[e]xamining counsel may generally set the deposition for an appropriate location of their choosing subject to the Court’s power to grant a protective order.”

Whether permitted or ordered, all remote procedures come with risks. Even careful practitioners commit gaffes with mute buttons and background noises that can create a lasting impression. After all, 2020’s United States Supreme Court toilet-flushing incident was a national sensation. The risks are not always cosmetic or comedic. Precious and limited deposition time can be burned with video delays and confusion with exhibits. Opportunists may intentionally exaggerate these problems (or worse, attempt to coach a witness), forcing opposing counsel to weigh the costs and benefits of seeking judicial intervention. In remote court appearances, litigators risk losing a judge’s patience when technical issues arise. There also remains an intangible (real or perceived) benefit to arguing motions in person, particularly for higher-stakes hearings.

Time will tell the extent to which the Nevada bench and bar continue to embrace alternative work environments and remote procedures. What is clear is that “the new normal” is no longer new, and at least some practices brought to the forefront by the pandemic have staying power.

About this article: This article was originally published in the Communiqué, the official publication of the Clark County Bar Association, (August 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-august-2022/.

About the author
Laura Langberg

Laura Langberg, Esq., a shareholder with Brownstein, litigates complex commercial matters, bringing a detail-oriented approach and creative solutions to complicated issues. She helps businesses navigate and litigate disagreements among their principals and stakeholders. She also assists individuals and businesses in disagreements with others over contractual obligations, real property issues, intellectual property rights and defamation.

Maliq Kendricks

Maliq Kendricks, Esq., an associate with Brownstein, is a talented legal writer and native Nevadan, Maliq Kendricks focuses his practice on corporate law and commercial litigation. Maliq came to Brownstein from Hutchison & Steffen in Las Vegas, specializing in business and commercial disputes related to partnerships, merchandise sales, licensing, construction and real estate.

© 2022 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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