What’s Going To Happen With Your Cases?

Brett Godfrey

Note: the predictions set forth below are merely matters of opinion on the part of Godfrey | Johnson, P.C., based upon extensive research of current court operations and medical research developments. Nothing that follows can be treated as any form of guarantee or binding assurance.

Most state and federal courts are technically still open, in the sense that judges are conducting business by telephone and video conferencing, and motions are being ruled upon. For the first time in the history of America, the U.S. Supreme Court recently convened a conference entirely by telephone rather than meeting physically. Court administrators are working to assist judges in the setup and use of videoconferencing. Most of the immediate changes to the legal system consist of vacating jury trials and in-courtroom hearings.

As the above links show, Colorado courts (like most other courts) have vacated all in-person hearings and jury trials. That does not mean that the cases will not go to trial, but only that trials will be pushed into the future. Once the pandemic has subsided to the degree that it is safe to resume public gatherings, cases will be re-set for trial, and in-person hearings will resume.

Depositions are still taking place, though almost exclusively through video-conferencing. Many court reporting agencies have very high quality video-deposition services, complete with real-time transcripts, and can arrange for the video record of the deposition to be much higher in quality than the video and audio associated with common video-conferencing applications such as Zoom, GoToMeeting and other web-based services.

Most mediators are conducting mediations by video-conference and telephone, so settlement activities remain largely unaffected by the Coronavirus.

Based upon our tracking of the progress of medical research and what we know to date about the exponential spread of the virus, it appears that the development of effective vaccines and treatments will be the needed measure to resume jury trials and all other public meetings in government buildings. More resources have been dedicated to the development of vaccines and treatments for Coronavirus than any other contagious illness in history, and these resources are being increased weekly. Because COVID-19 is similar in many ways to other viral illnesses that have been effectively suppressed with medicines, much of the science needed to tackle this problem is already in place. The federal government is authorizing fast-track human clinical trials to drastically reduce the time it will take to bring effective treatments to market on a national or global scale.

We estimate that jury trials will not be rescheduled for at least six months, and the trials themselves will not resume for several months thereafter, but we believe that it is likely that before the end of this year, medical breakthroughs will make it possible for the courts to predict with relative safety when jury trials may be conducted, so new trial dates are likely to be determined during 2020. Of course, this is merely an estimate that we are offering based upon our own discussions with a variety of medical specialists and research personnel, as well as ongoing tracking of medical news.

The insurance industry, which has a major voice in determining what happens with mediations and settlements, is generally motivated to continue processing cases in order to stabilize cash-flow, comply with state and federal regulations, and set liability reserves with some degree of fiscal year predictability. Plaintiff’s lawyers also seek to preserve cash-flow by continuing to resolve cases. While it is generally believed that corporate defendants prefer to push trials back, many companies remain interested in avoiding the accounting disruptions that cases which remain pending for long periods of time can cause. Individual defendants generally wish to avoid extending the duration of litigation in order to bring the capital outflow associated with monthly legal bills to an end sooner rather than later.

For all of these reasons, we can summarize our predictions as follows: Cases that were set for trial during 2020 will not be tried this year, but many of them will settle. Newly filed cases may be able to proceed on a typical discovery track and culminate in settlement or trial on much the same schedule they would have had the pandemic not arisen.

Brett Godfrey
March 25, 2020