By Halting Trials, Coronavirus May Push Parties To The Table

Law360 (March 24, 2020, 8:24 PM EDT) -- As the coronavirus pandemic throws a wrench into the gears of courts across the nation, attorneys say freezes on jury trials could push parties to the settlement table and thrust new technologies to the forefront of trial practice.

The spread of COVID-19 has led state and federal courts throughout the country to stop holding jury trials for the time being, with freezes expected to last at least through the end of April in jurisdictions such as the Southern District of New York and Central District of California and even longer in the Western District of Washington.

For some trial attorneys, this unprecedented set of delays could turn the normal expectation that looming trial dates push parties to settlement upside down, said Gregory Katz, managing partner of Lewis Brisbois Bisgaard & Smith LLP’s New York office.

“Now you have a scenario where you don’t know when you’ll get a trial date, and even if you do, all courts have limited resources,” he said. “There are forces on both sides that will take this time to see if cases can be resolved, and maybe on much more favorable terms.”

Katz, the head of Lewis Brisbois’ national trial practice team, said his firm has already seen delays in seven cases that were set to head to trial in recent weeks, and noted that even if courts start holding jury trials again in May or June, they will be balancing already jam-packed trial calendars with the pandemic backlog.

For plaintiff-side attorneys who work on a contingency-fee basis, a trial delay that stretches into multiple months could start to apply financial pressure to find ways to settle cases, Katz said. He added that if the delay lasts long enough, many defendants will also be interested in getting litigation off their books.

“[Plaintiffs attorneys] work on contingency, so how else do they make money besides settling cases?” Katz said. “And insurance companies want cases settled from an economic standpoint that makes sense.”

McGuireWoods LLP partner Greg Evans, who works in the firm’s San Francisco and Los Angeles offices, noted that the pandemic and resulting social distancing measures are taking a severe toll on the country’s economy. In a severe downturn, litigants’ priorities shift away from taking cases all the way to trial, Evans said.

“This should motivate parties to focus on that which is most important: getting back on our feet, getting business running again, and clearing litigation out of the way,” he said.

Evans said the broader societal impacts of the pandemic might also end up pushing litigants to consider a new spirit of cooperation.

“I think there’s a silver lining in that this public health crisis will cause people, advocates and their clients to consider resolving disputes rather than to perpetuate them,” Evans said. “Not just because the resources may not be available, but because we can all appreciate things that are much bigger than business disputes.”

BakerHostetler partner Carole Rendon, a former U.S. attorney for the Northern District of Ohio, had her doubts that the crisis would lead to a wave of settlements. She said that during the uncertainty of the pandemic, companies might not want to cut the checks needed to resolve suits.

That uncertainty is what’s currently plaguing trial attorneys, as the delays aren’t confined to a single region like they were in prior disasters like Hurricane Katrina, Rendon said.

“The problem is this is so extensive and it affects the entire country,” she said.

Geoffrey Drake of King & Spalding LLP echoed this point, saying there’s uncertainty about when trials will be put back on the calendar and how they will be arranged when that time comes.

“Each federal and each state jurisdiction — and sometimes judge by judge — is handling the situation pretty differently,” he said.

Drake said there will surely be “prioritization” of certain cases over others, but that trial lawyers and the expert witnesses and corporate representatives they often call upon are used to having dates moved around.

Katz said that while Lewis Brisbois waits for new trial dates, the firm is going back over the cases that have been delayed, under the assumption that they might need to be tried as soon as courts resume trials.

“We foresee they’re going to put a lot of cases on for trial beyond the normal number,” he said. “Courts won’t want to do adjournments, they will be focused on moving files.”

McGuireWoods’ Evans added that he’s been spending a nonbillable hour every day reviewing his pending case files in the hopes of keeping the evidence fresh for whenever they do come back up for trial.

Rendon of BakerHostetler said that even during the current court freezes, certain cases will still be able to proceed on the path to trial without running afoul of public health guidelines.

“There are things that can be done to continue to move the case forward without endangering anybody, such as document production and answering written discovery,” she said.

In some situations, however, it likely will be better to get a case stayed and wait things out, Rendon said.

“Can you really effectively defend somebody and represent their deposition if you’re not in the same room?” she asked.

Court proceedings, however, won’t likely return exactly how they were before the pandemic, according to Rendon. She said that once courts reopen, there could still be concern among jurors about the possibility of spreading infection, depending on how prevalent testing for the virus is at that point.

“I can see a world in which the first time a juror in the box coughs because they have a tickle in their throat, there’s panic,” she said. “There’s no social distancing in a jury box.”

Drake of King & Spalding noted that this is pushing trial attorneys to look into all of their options for remote proceedings, whether conducting discovery or arguing hearings via telephone or video. Drake said, however, he’s never heard of a trial being conducted remotely in the U.S.

Katz agreed that remote work is pushing into new areas, saying that he has an upcoming mediation where both parties will appear by video, a first for him.

Yar Chaikovsky, co-chair of Paul Hastings LLP’s intellectual property practice, said that attorneys might have to prepare for new levels of remote work at trial. This could include calling witnesses via live video stream or relying solely on a videotaped deposition instead of in-person testimony, he said.

“Each judge is going along and recognizing we’re in a new world, yet the wheels of justice can’t stop,” Chaikovsky said.

Chaikovsky, noting that experts say a vaccine for the virus is likely over a year away, said that courts will have to adapt. If the courts are being asked to try new things, he said, it’s because they have “lots of tools available that the framers of the Constitution never envisioned.”

“I could be wrong, but I don’t believe that America is going to shut down its legal system for 18 months, if this continues for that long of a time,” Chaikovsky said. “People have to learn how to proceed with life. If this becomes the normal for a while, we have to learn how to proceed with the new normal.”

--Editing by Aaron Pelc and Emily Kokoll.

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