Nathan Deal Judicial Center. (Photo: John Disney/ ALM)

With last week's order extending the statewide judicial emergency for a fourth time, state Supreme Court Chief Justice Harold Melton also partly opened the taps on litigation that's largely been shut down since his first declaration in March.

The most recent order continues the prohibition of jury trials and grand jury proceedings, but it reimposed deadlines effective July 14 on litigants that were previously tolled. The order also reimposes statute of limitations deadlines that were tolled for the 122 days between March 14 and July 14.

Citing the "substantial backlog of pending cases," the order also continued to freeze deadlines on the courts, urging that they "nevertheless work diligently to clear the backlog and to comply with usual deadlines and timetables to the extent safe and practicable."

Litigators told the Lit Daily affiliate the Daily Report in Atlanta they're happy to see their cases start to move again.

Malone Law's Adam Malone represents the Georgia Trial Lawyers Association on the COVID-19 Task Force set up by Melton and the Georgia Judicial Council. Malone said the input he's getting from both sides of the civil bar is supportive.

"At least from the standpoint of my practice, for GTLA and [Georgia Defense Lawyers Association] members, the reimposition of deadlines has helped tremendously to provide some clarity and reimposition of order," Malone said.

A substantial portion of litigation groundwork is already done remotely anyway, Malone said.

"There was really no reason to continue limiting written discovery, for example," he said. "We can sit in our homes or offices and respond to discovery requests, and if it's a large request the rules permit us to say, 'We're in the process, and will supplement it as soon as we can.'"

"A lot of it will be the same way we've always practiced, so it helps tremendously to reduce court backlogs and the piling up of pending or soon-to-be filed cases," he said. "Everybody can calculate the filing deadlines, discovery deadlines, even settlement offer deadlines."

Malone said the task force expects to release detailed guidelines within the next 10 days for lawyers and judges dealing with civil issues.

"We've tried to address everything," he said. "Hopefully, it's going to be organized so that if you're dealing with a civil justice issue you can just dip into the guidelines and find what you need."

The group has paid particular attention to setting out flexible guidelines for deposition requests, he said. Georgia law already allows for electronic and remote depositions, and the guidelines will specify that no party can be compelled to physically attend a deposition. If a witness is concerned about COVID-19, he said, lawyers are instructed to reach a "reasonable accommodation" such as social distancing or videoconferencing.

"Everybody's preference would be to be physically present, but everybody's going to have to give up something," he said. "I've been doing remote depositions for years; sometime they're better, sometimes there are glitches, but both ways are effective and adequate."

Weinberg Wheeler Hudgins Gunn & Dial partner Rick Sager said most of the lawyers and staff at his firm have already been back in their offices for several weeks.

"I think we're prepared for the floodgates to be open," he said. "The concern is that we're going to have a lot going on at the same time, and hopefully everyone will work together and get done what needs to get done."

As to taking depositions in person or via Zoom, he said, "we're going to do it on a  case-by-case basis. I've already done seven depositions in person, wearing masks. Most lawyers want to take depositions in person if possible, especially the important ones. In a document-intensive deposition, you may want to be in the room."

"The Zoom depositions I've had so far are out of state," said Sager. "It may be necessary for lawyers to start traveling a little more."

That's already the reality for Hawkins Parnell & Young partner Warner Fox, who said lifting the deadlines is welcomed and problematic.

"Frankly, I've talked to a lot of lawyers who didn't even realize the tolling had been lifted," said Fox.

"My position is that it's good news in that it's going to put lawyers back to work," he said.

But for a firm like Hawkins Parnell, which defends complex cases around the country, depositions via Zoom are not always suitable.

"Zoom is great for some things," he said. "But when you've got a potential witness and you want to see how he'll play in front of a jury from a remote location, you've got to see for yourself to get the full scope."

"Another problem is that I've got a lot of catastrophic cases where plaintiffs want to take depositions, and sometimes you're dealing with hundreds of documents," he said. "It's almost impossible to prep a witness like that over Zoom; you've got an obligation to prep the witness properly."

Fox said lifting the freeze means he would be back on airplanes, pandemic or not, and noted that he was flying out Thursday afternoon to interview an expert. He also noted that many firms will now be obliged to call employees back into their offices even as COVID-19 rates are climbing again.

"I don't know what our office is going to do," he said. "We've been open on a voluntary basis, but not many people are coming in. Most firms are going to have to make a decision whether it's time to get their staff back into the office."

Malone said he sympathized with Fox's concerns, "but this a goose-gander situation. We can't accomplish anything if everything's frozen."

"If we have experts we have to interview, we have to engage in a risk-benefit analysis of whether the risk of traveling to be physically present outweighs the risk of not doing that," said Malone. "In my personal practice, if I determine that's the only way I can do the job I was hired to do, then I'm going to get on a plane and do whatever it takes to accomplish that job."