Despite Flaws, Virtual Litigation Training Here To Stay

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Training associates to be litigators has been challenging during COVID-19, but conducting that training virtually does have some advantages, and most firms say they plan to keep at least some litigation training online even after the pandemic.

Fox Rothschild LLP's in-person pretrial motions training for associates was just days away when the pandemic shuttered the firm's offices last March, according to Ronald Williams, co-chair of the firm's construction group who works with its litigation training program.

The firm scrambled to move that training online, having less than a week to create a continuing legal education-accredited virtual program that eventually went on to incorporate PowerPoint presentations, videos and mock trial practices, Williams told Law360 Pulse.

Most firms have had to make a similar transition.

Robins Kaplan LLP turned what was traditionally a weeklong off-site training session into a series of modular webinars focused on openings, jury selection, direct examination and other topics taught over Zoom, according to Matthew Woods, co-chair of the firm's Professional Development Committee.

Goodwin Procter LLP held a virtual mock deposition program for summer associates and a deposition skills workshop via Zoom in partnership with the National Institute for Trial Advocacy, according to Caitlin Vaughn, the firm's director of learning and professional development.

Milbank LLP's litigation training program, Advocacy@Milbank, recently held its trial, deposition skills and evidence workshops and its writing intensive completely remotely, too, according to Dan Perry, the firm's litigation practice leader.

And Kirkland & Ellis LLP, which used to fly associates to a single location for a week to participate in full trials with actors as witnesses and partners as judges, moved its trial advocacy and pretrial practice programs completely online, including training sessions on discovery, experts and motions to dismiss, according to Jim Basile, a partner in charge of litigation training at the firm.

"Training in our litigation program is a really important part of associates' development, and you can't just set it aside," Basile said. "You're an associate, you have a six-year track, and if one-sixth of that you're not doing or learning the things you normally would, it's a meaningful setback."

But while necessary, that transition hasn't always been easy. It means learning to use new technologies, gauging how many hours is optimal for online learning and segmenting programs into smaller chunks, according to Wendy McCormack, executive director of the National Institute for Trial Advocacy, which has been offering some online litigation training since 2010.

"You can't just take a live program that runs eight to nine hours a day, for multiple days in a row, and just put it online," McCormack said.

Distraction, Zoom Fatigue and "A Few Good Men"

Conducting litigation training online has meant overcoming certain challenges, the attorneys managing these programs say.

The biggest of these is battling distraction. It's much easier for associates to be distracted by their phones, their children and other interruptions at home, so it's important to make presentations as interactive as possible, according to instructors.

Kirkland is using polling software that allows instructors to ask associates multiple-choice questions during their presentations, according to Basile.

And Robins Kaplan's training webinars include movie clips, like the famous trial scene from "A Few Good Men," to "provide an entertainment factor," according to Woods.

"We recognize in this environment it's easy to get disconnected, and so it was important for us that we provide some entertainment in this, not just education," Woods said.

Countering "Zoom fatigue" is another hurdle, according to Lisa Wood, co-chair of Foley Hoag LLP's litigation department.

That requires breaking what have traditionally been daylong or even weeklong trainings into smaller, more digestible chunks.

"We've found that shorter, tighter training formats work better," said Vaughn of Goodwin.

The webinars that replaced Robins Kaplan's previously weeklong training session last an hour and a half each, according to Woods. At Fox Rothschild, formerly daylong trainings have been parceled out over multiple days in segments lasting between an hour and an hour and 15 minutes, according to Williams.

But the biggest challenge of virtual litigation training is the lack of face-to-face interaction, these attorneys say.

"There is no substitute for the hands-on training that you can get when you get a bunch of people together physically," said Woods. "The technology is wonderful, but it is limiting."

Those limits include less opportunity for the informal learning that happens by walking down the hall to ask a more experienced colleague a question, according to attorneys. And those shortcomings are felt even more acutely by junior associates who have already received less in-person instruction as they finished law school and did summer associate programs virtually as well.

"When I was a first-year, we'd all go out to lunch together and talk about cases and what we were doing. That's not really happening now," said Milbank's Perry. "And so we have to create those opportunities."

Joining in From Anywhere

But virtual litigation training does have benefits, too, attorneys say.

For starters, conducting virtual litigation training makes it easier to both schedule and participate in the programs.

"It's a lot easier to get people to commit to an hour and a half seminar once a month as opposed to packing them up in an off-site location for a week somewhere," said Woods.

And instructors and students can now participate in training sessions from anywhere, according to Williams. When Fox Rothschild held an online session on arbitration, it was conducted by presenters in different offices and attended by associates throughout the country, he said.

"We have seen greater participation of all lawyers, and in particular, it has been easier to include lawyers from all of our offices," said Wood of Foley Hoag.

Virtual training also means lawyers who may never before have had the time or means to attend multiday in-person programs, like parents with special needs children, can now join in from home, McCormack of the trial advocacy institute pointed out.

That ease of participation doesn't just apply to training sessions, said Perry, who can now bring his entire team from Milbank to a virtual oral argument in Delaware, for instance.

"Those are some of the best opportunities for people," Perry said. "Now I have my full team go to all of our court appearances, and it's great."

Training for a New Reality

Perhaps the most important benefit of virtual litigation training is that it is preparing attorneys who will be increasingly arguing at hearings and trials conducted remotely.

Zoom court proceedings are likely here to stay, Robins Kaplan's Woods said, and they require attorneys to focus on different elements than in a physical courtroom. That means litigators have to learn "to be able to play effectively to the 2-D screen," he added.

Associates now need to learn to take depositions, use exhibits, and deal with opposing counsel and third-party witnesses all online.

And it's not just associates. When Fox Rothschild and Kirkland held virtual trainings, partners joined in as well to see how the technology works, according to attorneys at those firms.

So most firms plan to keep at least some aspects of litigation training online even after the pandemic, using a hybrid approach, "much like what I expect courts will do with litigation proceedings," said Wood of Foley Hoag.

Kirkland formed a task force of partners to put together a training program for remote litigating and offered it to all associates, according to Basile. It also compiled a library of guidance issued by courts around the country for conducting Zoom depositions and hearings.

Robins Kaplan is creating a program to teach attorneys to read a jury or judge over the internet, where they may not be able to gauge clues like body language the same way as in a physical courtroom, according to Woods.

And Fox Rothschild will start training its attorneys in a brand-new skill: deciding when in-person mediations and depositions are justified and when it makes sense to conduct them remotely, Williams said.

Attorneys are also going to need to learn to work with lighting, camera placement and backgrounds in order to litigate online, according to McCormack.

All of the attorneys said they would rather be teaching associates in-person and are ready to get back into the office for live training when that's possible, but they're optimistic that they and their associates can manage and even learn from the transition to virtual training.

"It's no different than a lot of things in our profession. It takes some getting used to. It's a little different," said Perry at Milbank. "In some ways, it's not as good. But in a lot of ways, it's even a little better."

--Editing by Jill Coffey.

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