The role of technology has expanded greatly by COVID-19 guidelines, and is currently the primary weapon trial lawyers have in order to remain aggressive in prosecuting their cases.
One motto in the Marine Corps is “adapt, improvise, and overcome.” This phrase rings just as true in the post-novel coronavirus/COVID-19 world of litigation as it does in Marine Corps ethos.
The pandemic has changed every aspect of American daily life – the way we socialize, the way we shop, and, indeed, the way trial lawyers litigate personal injury cases. Because of the COVID-19 restrictions currently in place, there are no jury trials, making it difficult to conduct in-person depositions and mediations.
Despite these challenges, it is the trial lawyer’s responsibility to adapt to the changing environment to push cases to a just resolution, whether that be by trial or settlement. As it currently stands, the only way trial lawyers are achieving these goals is through expanded use of technology. For most lawyers, this an unusual setting, given that attorneys usually rely heavily on in-person communication. Now that we must use technology more than ever before, we as attorneys are forced to figure out how to adapt to the current state of affairs.
Default Aggressive Strategy
To be clear, trial lawyers should be aggressive in litigation even in times of relative peace and health. An aggressive litigation posture allows the trial lawyer to push their case toward “decision points” – junctures in the case where the insurance company must decide whether to pay fair value in settlement or take the case to trial.
COVID-19 has given insurance companies an excuse to slow down injury claims. Because of social distancing guidelines and “shelter-in-place” orders, many defense lawyers have claimed that depositions and hearings must be postponed indefinitely because they simply are too important to be conducted via telephone or video conference.
Meanwhile, injury lawyers cannot allow these challenges to slow down their cases, and there are a number of ways they are continuing to push their cases to resolution.
For example trial lawyers are, and should be, insisting that defense lawyers participate in video depositions and hearings, and if the defense lawyer resists, should bring the disagreement to the court’s attention immediately for a ruling.
Secondly, trial lawyers should also take this time to carefully review the defendant’s discovery responses to ensure they have received full and truthful answers from the defendant. If the defendant has not provided full responses, then trial lawyers should be engaging in good-faith discovery dispute discussions with the defendant, and if forced, should be filing discovery motions with the court.
Ultimately, the main objective is to apply as much force to the defendant’s “pressure point” as possible despite the current obstacles. Even if it is currently impossible to conduct a jury trial, the threat of a jury trial remains the most powerful “pressure point” for both defense lawyers and insurance companies. Insurance companies fear the unpredictable, and juries are, by their very nature, unpredictable. Trial lawyers must thoroughly prepare their cases for trial despite the current challenges and constantly remind insurance companies that a hard-fought jury trial will be coming, just as soon as COVID-19 restrictions are lifted.
Use of Technology
The role of technology has expanded greatly by COVID-19 guidelines, and is currently the primary weapon trial lawyers have in order to remain aggressive in prosecuting their cases.
Litigation tends to lag behind other professions in the use of technology. There are many “old school” trial lawyers who fear, or openly have contempt for, the use of technology. Because of the social distancing guidelines, the increased and more creative use of technology has become necessary for all lawyers. It is more important than ever for clients to hire lawyers with tech knowledge and the ability to leverage that knowledge to advance their clients’ cases.
One example of the expanded use of technology is video depositions. There are many services today that conduct video depositions, and the development of more sophisticated technology and stronger wireless internet has made video depositions much less of a “risk” for the parties. Trial lawyers should be pushing for video depositions as much as possible during this time.
Another example is the use of virtual mediations. Instead of allowing insurance companies to delay mediation by using social distancing guidelines as an excuse, trial lawyers are increasingly conducting virtual mediations through dispute resolution services, often with great success. If you and your firm are using Skype or Zoom for regularly scheduled conference calls, then these video options can work for your mediations.
In personal injury, as in life, those who either fail to recognize changing conditions or refuse to quickly and aggressively adapt to change, will be left behind. The current global health crisis, while certainly disruptive to the practice of law, is simply forcing a profession that is often stuck in its ways to advance by adapting to restrictions on in-person meetings and overcoming them through the use of their innate intelligence and innovative technology.
Join the conversation!