More than a year into the Covid-19 pandemic, lawyers have become pretty comfortable taking and defending virtual depositions, including preparing a witness remotely. Even though remote depositions will become less frequent as the pandemic subsides, remote witness prep may remain commonplace. Here are a few things we’ve learned over the last year that are worth considering even when preparing for in-person depositions.

• Virtual Depositions

As discussed in Samantha Gerencir’s recent post “Making Mental Health Parity a Reality – the Challenge Continues,” patients seeking coverage for mental health conditions continue to face an uphill battle. For many years, the health care system has prioritized coverage for physical ailments over behavioral health issues.

• ERISA
• Parity Act

With a year of pandemic-fueled work-from-home experience under our collective belts, you can now find numerous helpful guides and horror stories to help you prepare for remote hearings and trials. There are some basics everyone should know by now, like making sure your internet is reliable (ethernet > WIFI); knowing the court’s rules for virtual hearings; and wearing pants. But here are some additional lessons from the virtual trial trenches that will help set you up for success:

• Virtual Hearings

It can be tough to wait for a judge to decide your motion. Lawyers and clients generally want a decision quickly, but sometimes that doesn’t happen.  

A little-known law, though, might help you learn a bit more about when your next motion will be decided. Under the Civil Justice Reform Act of 1990, 28 U.S.C § 476, judges must report motions that have been pending for more than six months twice a year: once on March 31 and again on September 30.  Generally, a motion is considered pending 30 days after it is filed.¹

• Civil Justice Reform Act

The Supreme Court’s recent decision in Ford Motor Company v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), is the latest entry in the Court’s rulings on personal jurisdiction, and may force lower courts to reevaluate jurisdictional tests that have required a plaintiff to show that a defendant’s actions in the forum state had a causative link to the plaintiff’s claims.

• Supreme Court

To clarify a long-running, hotly-litigated question regarding when a new drug qualifies for exclusive marketing rights intended to reward innovation, Congress has taken an important step toward amending the Federal Food, Drug, and Cosmetic Act (FDCA).

• Food, Drug, and Cosmetic Act
• Hatch-Waxman Act

Maryland is harsh on lawyers who commit dishonest acts. Since Attorney Grievance Commission v. Vanderlinde, 773 A.2d 463 (Md. 2001), the Court of Appeals has stated many times that the presumptive sanction for dishonest acts is disbarment. To oversimplify, the Court reasons that lawyers who commit dishonest acts are dishonest lawyers and therefore cannot be entrusted with client matters.

• Legal Ethics

On March 22, 2021, the SEC launched a new page on its website to collect agency actions and resources about climate and environmental, social, and governance (ESG) issues in investing. This is the latest in a series of initiatives by the Commission signaling that climate and ESG disclosures—that is, the information asset managers and public companies provide to investors about their ESG-related risks and opportunities—will take center stage as the Commission adapts to the priorities of the Biden administration. Investors increasingly look to a company’s ESG impact or whether a fund follows ESG criteria to inform their investing decisions. Similarly, many younger consumers rely upon ESG factors to guide their purchasing choices. The lack of a standardized ESG framework makes it difficult for investors and other stakeholders to make “apples to apples” evaluations of a company’s or fund’s ESG practices.

• Climate Change
• Environmental, Social, and Governance (ESG)

Now more than ever, we are aware of the close interplay between mental and physical health. Historically, our health care system has too often turned a blind eye to mental health conditions—simply treating and providing coverage for physical ailments and sending patients on their way. Health insurance companies both reflected and exacerbated this problem, providing no or wholly inadequate coverage for mental health services. The 2008 passage of The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act—commonly known as the Parity Act—was a giant leap forward in outlawing discrimination by insurers against mental health services. Under the Parity Act, if a health plan covers both medical/surgical conditions and behavioral health conditions (i.e., mental illnesses or substance use disorders), it must provide benefits for both types of conditions “at parity” – that is, on an equal basis. This means, for example, if a plan covers routine outpatient services in a doctor’s office to treat medical conditions like strep throat, it must also provide comparable coverage for outpatient services in a therapist’s office for treatment of depression or an opioid addiction.

• ERISA
• Parity Act

In October 2019, the Maryland State Bar Association’s Committee on Ethics published an opinion discussing a Maryland attorney’s duty to report the unauthorized practice of law by a non-Maryland attorney. A footnote to the opinion states:

It is worth noting that other jurisdictions have self-reporting requirements for licensed attorneys who are disciplined for violations of rules of professional conduct in other jurisdictions. See, Rule 8.3 of the Virginia Rules of Professional Conduct. Maryland does not impose a similar obligation on its attorneys.

• Legal Ethics