Member Article

Twenty months in, Covid-19 continues to demand that we exercise flexibility and adaptation as it identifies winners and losers. The pandemic has had a significant impact on the practice of law and businesses that are involved in, or contemplating, litigation.

Those who have been involved in litigation know that it can be expensive in “normal” times. Here are three ways the pandemic has impacted the costs associated with litigation.

1. Time to trial. Jury trials are an intimate affair. As a result, some citizens have refused to participate as jurors during the pandemic due to the risk of exposure to those who may be ill. And even our newest courthouses, such as the one opened by Multnomah County just last year, were not built with social distancing in mind.
   
   Limitations on available physical space has meant that courthouses can hold fewer jury trials. The situation was compounded by a lengthy period in 2020 at the onset of the pandemic—and the shift to working from home — when many courts liberally extended deadlines in cases, oftentimes by many months. This resulted in a sizable backlog of court dockets for hearings, conferences, and trials.
   
   Moreover, because of constitutional speedy trial requirements, criminal defendants receive top priority when such jury trials are available, with civil trials delayed even longer. People and businesses who are parties to civil disputes — all non-criminal cases, including all business disputes — must now wait for the backlog to clear before their case can be heard by a jury. These effects continue to cause cases to be delayed by months or even years, and those delays often drive up legal costs.
   
   
2. Virtual discovery and trials. The increase in legal costs because of delay may be offset by other consequences of the pandemic. The outcome of a case is determined by the judge and jury applying both the facts and the law. The judge decides what the applicable law is for any given case, but it is up to the parties to discover and present the underlying facts to the court.
   
   During the discovery stage of the case, parties may serve subpoenas on witnesses for evidence that may be relevant to the case. A cornerstone of fact discovery is the use of the deposition, where the lawyers typically gather in a conference room to ask questions of a witness and utilize a court reporter to record the sworn testimony of that witness.
   
   Depending on the location of the relevant witnesses, lawyers and/or witnesses may need to travel —even internationally — for these depositions. Covid-19 made it impossible to take depositions in person, so lawyers had to adapt to the use of a virtual platform to keep the discovery process moving forward during lock downs. Taking depositions via Zoom or similar platforms has meant lawyers and witnesses spend far less time traveling for these depositions, which has lowered the cost of conducting depositions.
   
   Additionally, although the final presentation in a case may be a trial, there are often numerous hearings and conferences between the parties and the judge throughout the case, as the judge resolves a variety of issues leading up to trial. Because of the pandemic, many of these hearings also shifted to virtual formats—telephone or video conferencing. This also lowered the cost of litigation, as it reduced travel time for attorneys to make these various in-court appearances.
   
   Some courts have offered, and in some instances imposed, a virtual format for trials.
   
   The shift to virtual depositions and more telephonic conferences and hearings will certainly continue with the pandemic. Many in the legal industry expect some of these changes to last beyond the pandemic, suggesting that it merely accelerated the adoption of these lower-cost, technological solutions.
   
   
3. Uncertainty. Covid-19 has meant the predictability of a case is less certain. When will the matter be heard by a jury? Will the case be decided by an in-person or a virtual jury? Who will be on the jury that decides the case? How will the format of the presentation help or hurt the case in front of a jury? How will masks, distancing, and other pandemic-induced practices affect the presentation of the case to the jury, or the jury’s trust in the attorneys?

Questions like these have made litigation — already somewhat unpredictable — even less predictable. This increased uncertainty often motivates parties to search for alternate paths to resolving disputes. For this reason, the pandemic has, and will probably continue to have, an impact on the prospect of parties reaching out-of-court settlements.

Jeff Eden and Nika Aldrich are both litigation attorneys at Schwabe, Williamson & Wyatt P.C. Eden primarily focuses on defense of product liability cases while Aldrich focuses on intellectual property disputes.

A version of this article was originally published in the Portland Business Journal.