Coronavirus Q&A: Skadden’s Mass Torts Chief

Coronavirus Q&A: Skadden's Mass Torts Leader

By Emily Field

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Law360 (August 28, 2020, 6:08 PM EDT) —
In this edition of Coronavirus Q&A, Skadden’s mass torts leader John Beisner talked with Law360 about the questions he’s been fielding from clients about the pandemic, his thoughts on remote trials and the time a llama showed up in a Zoom call.

John Beisner

Based in Washington, D.C., Beisner is the leader of Skadden Arps Slate Meagher & Flom LLP’s mass torts and insurance litigation group. He joined the firm in 2009 after some 30 years at O’Melveny & Myers LLP. Last year, he was tapped by Bayer AG to advise the company on litigation over its weedkiller Roundup, which recently announced a $10.9 billion deal to settle the bulk of roughly 125,000 claims that the weedkiller causes cancer.

This interview has been edited for length and clarity.

How has your practice’s work been affected by the pandemic?

It has changed what we are doing to some extent, but I’m happy to say we’re remaining very busy. I think the biggest impact was on trials and trial preparation activity. Of course, for a period trials were canceled and that meant that some things we were doing we were unable to continue. In the trial preparation area, there was also a period where courts were issuing delay indications and whatnot, which caused depositions and other pretrial activity to come off the front burner. But as people are resourceful, we started taking more depositions, and we’ve been doing a lot of that activity. 

In some areas, trials are coming back, so we are getting ready for some of those.

Do you think holding trials over Zoom is feasible? There’s a trial in California court in an asbestos case that has had technical problems with Zoom and jurors not paying attention.

I’ll just put it this way: It’s worrisome. I hesitate to say more than that, not having been through it or observed it closely in real time. But it does make you worry when you think about all the things can go wrong or get off track when you have everybody in the same room for a trial, the odd things that happen with jurors in the courtroom. When you have everyone spread out and joined electronically only, you do worry about that. But I’m not prepared to write it off because I haven’t seen it in action.

One of the things I should note, as the trial aspects slowed down, we have been doing a lot of work that is COVID-related. So we have been thinking about exposure issues, contract arrangements, liability protections, things of that sort. Some of which are contractual, some of which are protective actions by companies. We’re also thinking about legislative issues, so it’s been a fascinating diversion to consider those issues and the evolving science of the pandemic.

What kinds of questions have you been hearing from clients about COVID-19?

Some are concerned about how they get to understand best practices for protecting their employees and customers. Others are concerned about liability risks that may be generated by that. I think there’s been a lot of concern about interruption of contracts and the inability to satisfy contracts of various sorts because of the pandemic. These are all very difficult issues because of the areas of risks, the need for new vigilance arising out of something that none of the clients are really responsible for. It’s something that’s been visited upon all of us, but everyone has to cope with it as best they can.

What kinds of claims have you seen arising from the pandemic?

We’ve seen a number of claims. I’ll start in the contract arena — sales arrangements that companies may have with customers that have been interrupted because of the pandemic because facilities had to be closed, so the ability to deliver has been interrupted and someone can’t be satisfied.

We’re starting to see claims regarding COVID-19 exposure issues, and a lot of those are focused on employee situations and workplace exposure, but we’re also starting to see them coming from other types of exposure as well. I think that will continue, and I think we’ll be surprised by the sorts of claims that get raised, as people are all looking for ways to make themselves whole in light of this very serious interruption of business that has occurred.

On a more lighthearted note, have you had any Zoom hiccups, like someone’s kid wandering into a room?

Yes, I’ve had a few strange things. I’ve been on calls where children have wandered into the conversation. What I’ve noticed more than anything are animals, lots of them on the calls. I think the most interesting one was a call the other day where a llama wandered into the background on a call.

I’m sorry, what?

A llama. I said, What is that in the background, it can’t be a dog. And they turned around and said, Oh, it was the neighbor’s llama that wandered over and was outside. But I’ve also just been fascinated by how naturally cats and dogs have wandered into the frames on calls, so that’s one part of it.

I’ve also been fascinated by the protocols for these calls. I think a lot of people have just started video services, Zoom and others, as a way to communicate, but you don’t always assume you will be on video. So I’ve had a couple calls where I’ve been invited on through one of the web-based links and just assumed it was a video call, and I’ve gotten on in video and then realize that the client and others are not on video. 

I’ve also been amused by dress code considerations. I was on a court call, a videoconference, and it was a rather large group call with many counsel participating. It was the first time we had been on a call with the judge, so we all showed up in suits and ties for this event. The judge came on and said, “I’m so sorry, we should have told you, you don’t need to dress up for this.” She said, “I know you all have nice clothes, but there’s no reason to put them on for this event, and I suspect if you stood up a lot of you are actually wearing shorts under your nice upper-body attire.”

How do you think the pandemic will affect the legal industry in the long term?

I think one of the biggest effects of it will be a lessening of historical personal contact. I think that courts are going to be more comfortable with engaging counsel through video. Particularly for smaller conferences, you can accomplish the same thing much less expensively through the use of devices. Sitting in chambers to discuss sensitive issues, that will not be abandoned, but I do think there will be a greater change to use the communications technologies that have really come to the forefront to rescue us in the current situation.

I’m also going to be very interested as to what law offices look like going forward. I think there is a need for lawyers on a team to have personal interaction. I don’t think we can eliminate offices, but i do think the reliance on them will change. Frankly, I think the design of offices may change to some extent over time as a result of this, because I think we’re going to be less lured to offices.

It seems like this is going to be the end of the open office plan.

Yes, I think it may well be. I think that the biggest challenge going forward is going to be how you bring new attorneys into a team working together. This has all worked because over this period because you have working relationships established already, you know each other and you know what reactions will be.

Frankly, there are personal aspects, as you have a strong sense of family obligations. You’re aware of parents in a practice group having to deal with remote learning situations. Working together, knowing each other and knowing each other’s home and family situations fairly well has contributed to making this work, but that is because they did spend time together in a workplace working face-to-face for a period of time. I think you really need that foundation to make the remote working aspects of this work well.

–Editing by Alanna Weissman.

Check out Law360’s previous installments of Coronavirus Q&A.

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