Litigation and claims handling evolved over the COVID-19 pandemic, with the most obvious and significant adaptation being the transition to remote client meetings, depositions, expert investigation, mediation, and even trial.
The adoption of remote appearances for discovery, mediation, and trial allowed pre-pandemic claims to creep through to the courts. While certainly not a cure-all, this was a positive development after full court closures, variously interpreted emergency orders extending statutes of limitations, many months of disruption, and the evolution of the legal industry from a largely in-person to a largely remote workforce.
While remote appearances are often now the optimal choice and have even expedited resolution of certain claims, a 30-month backlog of claims that did not e-resolve are now being pushed toward in-person trials. That level of impact—or even the potential shock that level of interpersonal contact may have on a jury—along with the testimonial impact of remote versus in-person witnesses, should be included in routine case development and defense-strategy assessments, and when integrating technology and training budgets.
Litigation Experience and Lifecycle
With COVID-19 testing and treatment advances, and COVID-19 fatigue, the world began reopening in late 2021. This has created new side effects on the litigation experience and certainty on case lifecycles.
Doors re-opened at the top of the courthouse steps and presiding judges are now pushing to clear backlogged dockets, finally refusing motions to reset trial dates. For more recently filed cases, courts are also setting trial dates with certainty; sometimes much sooner than expected. Courts are also receiving motions seeking interpretations of orders tolling or extending statutes of limitations against variously timed filings and motions to dismiss. Indeed, the litigation lifecycle is trending back toward its historic “trial to be set within one year from filing, possibly two for complex matters,” with the impact of below-discussed discovery disputes providing a degree of randomness.
Less certain these days are the interpersonal expectations of the client, defense counsel, opposing counsel, experts, and claims handlers. What are the pros and cons of forcing “in-person” meetings? Do we mask? Do we shake hands? If not “in-person,” then by phone or Zoom? Camera on during large group meetings? Background blurred? Can you see this document? Why can’t those people stop looking at themselves?
From our perspective, the counsel/claims handler relationship has improved, benefiting from the incorporation of online video platforms like Zoom and Teams into a historically largely telephonic relationship. The future will likely be supplemented by in-person meetings for limited major events, not dissimilar from pre-pandemic times. Clients continue to surprise us with their sophistication with technology for initial and subsequent communications, and their resounding requests for an in-person meeting in counsel’s office.
To be sure, the next generation of litigation-handling guidelines, technology, and training budgets will be well served to include updates addressing these new variables to litigation strategy and budgeting.
Over the last two years, both in-person and documentary discovery have changed dramatically—and, with that, motions practice.
The shift to a remote work environment spurred an industrywide transition to a paperless, or at least a less-paper, model. But, with less in-person discovery, some counsel seek additional paper discovery through subpoenas or requests. Responsive documents from short-staffed, backlogged providers, public entities, and understaffed third parties trickle in much more slowly than in pre-pandemic times, leaving defense experts and counsel doing what they can while discovery and litigation may continue with key information missing.
Workarounds to consider: For the adjuster, document a request pre-suit; and, for defense counsel, issuance of requests both to plaintiffs and directly to the providers so that relevant documents are most likely available in advance of in-person discovery or trial.
COVID-19-fearing plaintiffs and telehealth appointments have naturally led to objections to in-person independent medical evaluations (IMEs) and motions to compel them. Certain plaintiffs’ counsel continue to oppose an in-person IME—citing efficiency and economy—raising questions about what they could be hiding. Interestingly, we are not seeing opposition to in-person depositions from counsel on both sides that cite efficiency and economy. These disputes are often layered with not only concern for health, but also issues of legal strategy and counsel’s technological savvy.
Indeed, when considering whether to request or move for in-person medical or site evaluation, counsel must consider the effectiveness of their—and their experts’—ability to evaluate this particular claim, the likelihood it will proceed to trial, and the availability of other evidence. For example, a remote deposition over a gutter installation may be effectively done by online video conferencing with a few paper exhibits and photos. However, we suggest that an in-person deposition of a plaintiff claiming a traumatic brain injury with permanence is a must before proceeding to a jury trial.
For site or product evaluation, a picture says a thousand words, but personal observation says a million, so, in planning, consideration for the nature and value of your claim is appropriate. Please do keep in mind that some cases actually do end up in the courtroom.
Online or In-Person Mediation?
When considering a case for mediation in 2022 and beyond, one consideration will likely be whether to hold in-person or online mediation sessions. Choosing the right mediator is one critical element regardless of whether mediation is in-person or online. Some mediators adapted well to the online format—even with complex multi-party cases, they managed break-out rooms, figured out how to check in with the parties regularly, managed expectations, and resolved cases. Others struggled with the technology and the lack of in-person discussion.
Good mediators are committed to following up after the actual day of mediation, and are effective at managing the case calendar as well as the expectations of the parties. They also have a mediation plan and review the party’s pre-mediation summaries prior to the mediation day for the most efficiency during the mediation.
Cases that are likely good candidates for online mediation include those with a limited number of parties, no significant coverage issues, personal injury cases with no permanency claimed, cases under the monetary threshold, and cases where adjusters previously might have attended by being available by phone. Testing the technology and confirming logistics before the mediation is recommended: At this point, we all have experienced the hot mic or background video issues ourselves, had a colleague that did, or saw a video where it occurred.
In-person mediation is likely best for those cases over monetary thresholds or policy limits, where multiple parties are involved, with coverage issues and where coverage counsel may be in attendance, claims for permanency and certain claimed significant injuries in personal injury cases, and cases close to their trial date.
No matter the type of mediation—in-person or online—there should be a pre-mediation plan. Every party at the mediation has a role in the pre-mediation plan. Plaintiffs’ counsel needs to ensure that all current proofs for the claims being made are available for review (prior to the mediation date would be ideal) and that the demands issued outline the parties to whom the demand is made, and what it encompasses.
Defense counsel should follow up on any outstanding downstream tenders, secure a demand from the plaintiff, update their litigation plan and budget, secure and analyze expert reports/opinions, hold a pre-mediation strategy conference with the client and carrier representative, and submit their pre-mediation statement to the mediator within their prescribed preferred time frame.
The claim-file handler will want to follow up on any upstream and downstream tender demands, secure defense counsel’s updated report and budget, conference the case with defense counsel as warranted (including a discussion regarding how side-bar conversations will be handled between you during the mediation, should the need arise), and secure the necessary authority within their organization, including agreeing on who will be negotiating if coverage counsel for the carrier is also involved.
The retained experts for any party should review evidence, provide a liability evaluation and/or evaluate the damages, and issue a written report on their findings, if requested.
In addition to the pre-mediation work of reviewing the pre-mediation statements of the parties and setting up the break-out rooms and securing the conference site on the day of the mediation, the mediator must ensure that the parties agree on the scope of any settlement reached, and the terms. Some considerations: Is it a unilateral or mutual release? Are all parties included (global) or are there carve-outs? Are the terms and settlement amounts from the parties confidential? When will funding be required? How will any liens be addressed?
Should the case not resolve on the day of mediation, the mediator’s work is likely not finished. Issues that came to light during the mediation may require time to be analyzed by the parties; possibly, double-blind demands should be issued; and, possibly, following up with some or all of the parties may result in resolution after the mediation date.
If the case cannot resolve, and a trial will go forward, there are some new considerations post-pandemic. Should there be an online or hybrid trial, it will be important to consider whether there will need to be motions filed and approved for remote attendance by witnesses or parties. Counsel must also consider local court rules related to electronic filings and courtroom technology and security considerations, such as whether your remote witness will be able to screen share when discussing exhibits, or whether poor audio quality may impact jurors.
Additionally, should your case be headed to a jury trial, there are post-pandemic jury pool considerations. We have all read about, and may have even experienced, the cultural shift from “the Great Resignation.” There are numerous studies and articles that outline post-pandemic cultural shifts regarding how we spend our time, such as the option to work fully remote and avoid commuting, and the desire to have meaningful work. Jurors have those same feelings and emotions and may resent being a jury member for a case they deem unworthy of their time and attention.
There is also an erosion of the belief that corporations are neutral or benevolent, or that most have a “for the greater good of society” purpose. The plaintiff bar started to capitalize on this pre-pandemic with “reptile-theory,” and we can expect to see those reptiles magnified into “Jurassic Park dinosaurs” post-pandemic. Nuclear verdicts may be the result.
Anecdotally, we have also heard of a rush of defense, or quite favorable to the defense, verdicts. Perhaps this suggests a trend of verdicts toward the edges of the bell curve as compared to pre-pandemic verdicts trending more homogenously and down the middle.
Although most emergency orders have lifted and courts have reopened, the litigation lifecycle and experience were irrevocably altered by the COVID-19 pandemic. As the world reopens, the savvy litigator or claims handler must continue to evolve and employ a uniquely tailored, hybrid approach to remote and in-person proceedings and trial preparations.