By Alison Adelman
Schwartz Semerdjian Cauley & Evans LLP
It is clear the Covid-19 pandemic has changed the practice of law, at least temporarily. With statewide court closures and an economic recession to boot, the rugs were ripped out from underneath case theories and defenses without warning. The current situation has left lawyers with no choice but to shift strategies.
Pre-covid, trial court judges aimed to set trials about a year out from the filing date, and clients could generally expect the trial would go forward within two (2) years. Now, however, all trials scheduled to take place in March 2020 or later were postponed at least six (6) months. And although the San Diego Superior Court recently issued jury summons for the first time since March for mid-October jury duty, there will be much fewer jurors reporting for service and the priority will be given to criminal cases, then unlawful detainer actions. Civil jury trials will most likely not take place until at least Spring 2021.
A simple and perhaps the only way to move cases onward during this pandemic is to take a step back and view the case through a new lens. With such a delayed and uncertain future, and vastly different circumstances, litigators must re-assess. Instead of focusing on the negatives of the current pandemonium, take the current situation by the reins and use it to your client’s advantage.
One option that is often overlooked is the bench trial. If decisions on questions of fact and law are inevitable, consider trying the case in front of a judge and your case will be heard much, much quicker.
Or, if you and your client are distraught that the jury trial was pushed out nine (9) months, think instead about what you could do with the extra time. You could turn aggressive in terms of discovery. Bring a motion for summary judgment that was otherwise untimely. Or begin informal settlement talks that were previously out of the question:
Imagine a client has been waiting for trial since 2017. The trial set for June of 2020 was continued to December 2020 and unlikely to actually occur until well into 2021. Although previous settlement discussions reached a definite impasse, you decide to reconsider with a different approach. You talk with your client about the fact that the settlement funds previously offered, if received now, would appreciate to be worth much more by the time the case would actually go to trial. If settled, the client could be done with the case immediately, receive the funds quickly, and move on with her life. On the flip side, if litigation continues, attorney’s fees and costs will surely increase significantly over the many months of waiting time. Once trial eventually commences, your client faces the risk of no monetary award at all, a verdict against her, and even an order to pay the other side’s fees. The same settlement offer is much more appealing now than it was when first offered before the pandemic. This juxtaposition may cause the client to seriously reevaluate settlement and facilitate a resolution beneficial to all parties.
Of course, in some cases reaching a settlement will not come as easily. Because of the recession, the defendant may have filed for bankruptcy, closed up shop, or had to lay off key employees and witnesses. While this may stall settlement discussions, don’t write resolution off entirely. Plaintiffs may also be struggling economically, forcing different benchmarks and goals. Take advantage of alternative dispute resolution, which is now more easily accessible. Consider virtual mediation. Our firm has had great success mediating cases over Zoom. While at first we were skeptical that remote ADR would be less efficient, quite the opposite was true. We were able to get to the crux of the case quicker and had more productive discussions with the mediator, all from the safety of our homes and offices.
The San Diego legal community also created RESOLVE Law, a volunteer effort designed to provide assistance to civil litigants faced with the delays and backlog in the civil justice system. The program has been extended through January 31, 2021 and offers the services of very experienced attorneys and well-known mediators who can mediate cases without fees.
Consider setting up a Settlement Conference with a Superior Court Judge, some of whom have light calendars and thus are ready, willing, and able to assist. A judge’s input on the merits of your case could be exactly what is necessary to move a case along in this seemingly-stagnant world.
And even though ADR may be a good idea, don’t use it as a crutch in place of actually working up your case. If you have not done the work to prepare for mediation, it will be a waste. The court backlog is no excuse to let your cases stale, rather it is crucial to keep them moving. Procrastinating is doing a disservice to your client. Although many lawyers are choosing not to do so, in our office we have made a point to push forward with discovery, meet and confer efforts, virtual depositions, motion work, mediations, and the like despite that the trial date is uncertain. Reconsider your litigation strategy and draft up a new discovery plan. The new realities of our legal world are unavoidable, so we must persevere and do the best we can with them.
The only constant in our current world is uncertainty. We do not know what the future holds, so it is time to accept it and shift gears. Looking at cases in a new light might be what it takes to achieve the best outcome under the circumstances. By staying diligent, seeing the good, and prioritizing our clients current best interests, we can dig ourselves out and charge through the adversity.