The COVID-19 Impact: Navigating the Legal Landscape’s New Normal

(June 11, 2020) - While most of the country has been at a standstill since March, you might be wondering, what about my lawsuit or my administrative charge? For the past couple of months, most litigation cases have largely been put on pause in the courts and at administrative agencies. However, as we adjust to what is clearly a new normal in both our lives and the legal landscape as we know it, cases will begin to pick up speed again, albeit with new strategies and challenges to keep in mind.

As courts begin to reopen, judges are emphasizing in many jurisdictions that criminal cases will take priority in an effort to attend to constitutionally required timelines. Nevertheless, it will remain just as important as before the pause button was hit to keep cases moving forward. This ramp up period presents a unique opportunity for clients and attorneys to invest meaningful time into investigating and developing defenses to claims while the court system and related case pace remains slowed.

While many court systems have stayed deadlines for pleadings, discovery, and the like, once litigation ramps back up, it will likely do so at an accelerated pace and on a compressed schedule. Days once devoid of court hearings and depositions will soon be packed with them. For this reason, clients should speak with counsel about some of the following socially-distanced opportunities for moving cases forward:

• Deep-diving into a case’s records to develop initial defenses and assist in the development of case strategy.
   
• Drafting written discovery, such as interrogatories, requests for documents, and requests for admissions.
   
• Scheduling and participating in Zoom depositions, mediations, and arbitrations.
   
• Preparing for a case that will inevitably go to trial by (1) drafting jury instructions, (2) brainstorming and conducting research regarding potential motions in limine, and (3) identifying potential exhibits.
   
• Contacting expert witnesses about potential assignments or working with retained experts to develop and sharpen defenses.
   
• Calling witnesses and conducting phone interviews, and developing comprehensive litigation strategies.

Additionally, plaintiffs (and plaintiffs’ attorneys) may be more willing to discuss settlement or other avenues to resolve a case. Specifically, in cases where plaintiffs and plaintiffs’ attorneys hoped to cash in at now-cancelled mediations and trials, there may be opportunity to resolve cases for short money or in an expedited fashion where the timeline of a case in the court system is now tenuous at best.

With regard to local administrative agencies, many, including the Connecticut Commission on Human Rights and the Massachusetts Commission Against Discrimination, were temporarily closed as a result of the pandemic, and many investigators continue to work from home. Additionally, for the last three months, investigative conferences and conciliations at the Equal Employment Opportunity Commission have largely been cancelled, with the exception of a few telephonic events.

Now that administrative agencies are reopening, they are starting to hold telephonic conferences, but the pace of scheduling for such administrative conferences and the delivering of decisions is much slower than before. For example, whereas one could have expected a preliminary ruling in six months in New England prior to COVID-19, parties are now looking at closer to a full year. In short, many, if not all, administrative agencies will be working to dig out from a backlog of charges.

While we must confront many unknowns as we adjust to the new normal, one thing remains clear – when the legal world turns back on, it will do so at great speed, as courts and attorneys try to make up for lost time. Accordingly, steps should be taken now so that cases and clients are well-prepared for what lies ahead, whatever that may be.

Visit our COVID-19 Response Resource Center for more alerts and information on the many areas of law impacted by the pandemic.

Author:

Amanda Mathieu, Associate