by, Lexicon Legal
Litigation has never been an easy career path for attorneys. In the age of COVID-19, however, there have been many logistical challenges that have prevented lawyers from litigating their cases at all. It is important for litigators to understand the constitutional issues that might apply to their cases in order to be sure that their clients’ legal rights are being adequately protected. It is also important to be aware of the many resources that are available to help attorneys settle their cases.
As more and more jury trials get delayed due to backlogged court documents, settlement will become a more attractive option for resolving many different types of cases. Litigators will need to address the unique challenges associated with jury trials and find solutions that will lead to successful settlements.
PRACTICAL CHALLENGES
The first challenge many litigators will face is simply getting a trial date. Many court systems shut down entirely at the start of the coronavirus pandemic in early 2020. While most of these shutdowns did not last long, even a short break in court service creates a significant backlog of cases. These backlogs were exacerbated by the fact that most courts limited in-person operations in order to protect judges, staff, attorneys, and litigants from the spread of COVID-19. This only made the backlog worse. Many pretrial matters can be handled via video conferencing, and this has helped many attorneys move their cases along. But when it comes time for trial, there is simply no substitute for an in-person presentation of evidence to the jury.
Practical challenges arise at almost every stage of a jury trial. Simply choosing a jury may be difficult: if jury selection is done via video conferencing, attorneys can be interrupted by poor internet connection or distractions in the prospective juror’s home. If jury selection is being done in person, masks will likely be worn for safety, and attorneys will be unable to see juror’s reactions to various statements. Prospective jurors will also have to be spread apart and brought to the courtroom in smaller groups to allow for appropriate social distancing. All of these challenges increase the time and level of difficulty associated with selecting a jury.
When it does come time to present evidence, masks and social distancing can also create challenges for the finder of fact. Credibility is a primary consideration for jurors who are evaluating witness testimony. If the witness is wearing a mask or seated far from the jury to allow for social distancing, the jurors may not be able to evaluate the credibility of all the witnesses. Masks and social distancing can also make it difficult for the judge to notice if jurors are not paying attention or engaging in other conduct the judge deems inappropriate. All of these practical challenges can make it difficult for litigators to conduct a fair jury trial on behalf of their clients.
CONSTITUTIONAL ISSUES
The Sixth Amendment protects the right of criminal defendants to have a speedy (and public) trial. Many states have protected this right by enacting specific time limits in which criminal trials must be held once charges are filed. Civil cases have a constitutional right to a trial, but not one that is “speedy.” This has caused many civil cases to get pushed back on crowded court dockets and delayed in favor of criminal jury trials. While this is an important protection for criminal defendants who are waiting for trial in crowded jails with high rates of COVID-19 transmission, it does make it difficult for civil litigants to exercise their legal rights. Litigators should prepare their clients early in the case for the court delays that are almost certain to come. Litigators should also prepare their clients to be more open to alternative dispute resolution, which is commonly referred to as ADR. Now, more than ever, it is important for all parties to consider the possibility of resolving their legal disputes without a jury trial.
THE RESOURCES THAT CAN LEAD TO SUCCESSFUL SETTLEMENTS
Experienced litigators know that some cases are just not likely to settle. In many cases, however, an attorney can improve the chances of settlement by accessing the right resources. For example, disclosed documents might not be particularly persuasive to an opposing counsel. But if the opponent actually interviews the witness in a deposition, it could become apparent how persuasive that expert testimony will be to a jury. Combined with a lengthy wait to actually get a trial date, this could be a strong incentive to settle the case.
There are also many different forms of alternative dispute resolution, so it is important to use the right strategy for a given case. Some litigants, for example, might not be willing to submit to binding arbitration. Other lawyers might be unwilling to make any concessions in a mediation session that does not have the legal effect of an arbitration. It is important to explore all available options to find the method of ADR that is best suited to the attorneys, parties, the facts, and the legal issues involved in a particular case. This often means finding the right mediator, arbitrator, or other professionals who can best guide the attorneys and parties involved in a given case.
LITIGATION SUPPORT FOR THE UNIQUE CHALLENGES OF COVID-19
Regardless of the type of case you are litigating, COVID-19 has created many challenges to successfully resolving a case. Guidepoint can connect your firm to the precise expert necessary to answer your legal or medical questions related to the pandemic, trained ADR professionals, and the right expert witness to present a strong case for settlement negotiations – or, if necessary, at trial. Contact us today to learn how we can help you litigate in the era of the coronavirus pandemic.
Please note: This article contains the sole views and opinions of Lexicon Legal Content and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Lexicon Legal Content is prohibited.
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