Litigating and Resolving a Case in the Face of a Pandemic

By Ryan Bradway
Drexel University Thomas R. Kline School of Law

Picture this: You just delivered a phenomenal closing speech and are convinced there is no way the jurors will find in favor of opposing counsel. What’s next? Jury deliberations of course, however, not the jury deliberations that the legal profession is accustomed to. No, these jury deliberations are being conducted over Zoom, just as the trial was, with each individual juror tuning in from their own home. Is this the new “norm”? One day it may be, however, for now there are other ways to handle your case rather than having to worry about if ‘Kevin’ is watching the San Diego Padres game during jury deliberations.

COVID-19, the virus that caused this global pandemic, has negatively impacted both individuals and businesses significantly. At its peak in April 2020, unemployment affected roughly 23 million individuals.[1] While that number has dwindled down since, unemployment is still at a level that poses great risk to the livelihood of individuals and threatens the operations of businesses. You might be asking yourself how these statistics relate to the point of this article, which focuses on the litigation and resolution of cases in the face of a pandemic, but these numbers lead directly to one conclusion that benefits all parties involved: settlement.

Recalling back to my law school orientation, a faculty member stated “I’m sure most of you have seen trials on TV, in movies, and maybe even some of you watched OJ’s trial with the infamous glove, however, most of the cases you handle will never make it to trial.” If I remember correctly, somewhere around ninety-five to ninety-eight percent of cases are resolved prior to trial. A global pandemic does not change those numbers, but rather it may be of assistance in pushing parties to reach a settlement. The economic impact stemming from this global pandemic has been monumental. Individuals and businesses are all in the same economic boat, a boat that has been taking on water steadily for the past six months. Settlement is an amicable solution for all parties involved. Plaintiffs are made whole and Defendants rid themselves of the dark cloud of a lawsuit looming over their business. As many individuals continue to stay at home, whether they are working or not, and many businesses have been forced to adapt to the severe circumstances, counsel for both Plaintiffs and Defendants should seek to resolve cases informally through settlement.

In a perfect world, all cases would settle and all parties would happy. Frankly, in a perfect world, we would not have to worry about a global pandemic but here we are. So maybe the Plaintiff you represent refuses to accept any settlement offer even if you may think it’s a good one. Or maybe the Defendant you represent holds firmly that they have no liability and the Plaintiff’s claims are meritless. As I mentioned before, roughly ninety-five (95) to ninety-eight (98) percent of cases result in settlement, however, depending on your client’s position, the type of case you are dealing with, or a handful of other reasons, maybe settlement is not the most appropriate avenue. What’s next? My best advice: enjoy all that the litigation process has to offer.

As a 3L at the Drexel University Thomas R. Kline School of Law in Philadelphia, PA, I have had numerous classes instructing on the litigation process from civil procedure to litigation practice skills. In my four months as a Law Clerk at the Law Offices of Timothy D. Ducar, PLC in Scottsdale, Arizona, I have had the opportunity to engage in the litigation process outside of a classroom setting. After reaching out to multiple attorneys for input in writing this article, their advice corroborated my real-life practice experience to date. The combination of attorneys working from home, large layoffs across firms throughout the US, and billables still needing to be met has rejuvenated the discovery phase. Interrogatories, requests for production, and requests for admissions are much more in-depth, and are actually being sent out on cases where discovery may have been totally overlooked. Deadlines are more strictly adhered to. Often times missed deadlines and extensions delay the litigation process and overcrowd the court docket. With severe limitations placed on in-person court proceedings, attorneys and firms have had more time to pay closer attention to deadlines and devote more time to discovery. As a diehard, and often heart-shattered, Philadelphia Sports fan, my entire life I have been told to “Trust the Process.” I am offering that same advice to you, except slightly altered, “Embrace the Process.”

In my short time in a real-life practice setting, I have thoroughly enjoyed all that the litigation process has to offer, from preparing initial disclosure statements, negotiating with opposing counsel, or sending and responding to discovery. I do not know exactly what the future looks like for litigating and resolving cases, however, in the face of a global pandemic my best advice is to use it to your advantage if possible and embrace all that litigating a case has to offer. I chose to pursue a career in the legal profession because I had numerous mentors who woke up every day and were excited about fighting for their clients. A global pandemic does not change that. As my grandmother always tells me, “It’s a good day to have a great day.” Wake up, be the best advocate for your clients, and I hope you all stay happy and healthy as we continue on this path that COVID-19 has created for us.


[1] https://fred.stlouisfed.org/series/UNEMPLOY