Even during normal times, court delays and long dockets are often routine. But COVID-19-related court closures have created a docket logjam for courts across the country. Being placed as a 12th setting on a trial docket, once almost unheard of, is rapidly becoming the norm.
And these docket delays will only get worse in 2021. Thousands of cases delayed from 2020 will flood court dockets in the next year.
For personal injury attorneys, delays are our enemy. As the court date nears, the defendants’ costs rise, as attorneys invest more time in trial prep and on expert witnesses. Without the threat of a looming court date and those rising costs, defendants and insurance companies often have no incentive to settle a case.
Historically, these increasing expenses and the possibility of an adverse jury ruling provide the leverage the plaintiff’s attorney needs to convince the defendant to settle. Or, a trial date provides final resolution, one way or the other for our clients.
Docket delays are not going away. But there are things you can do to help mitigate their impact on your bottom line. Here are three ways you can manage dockets delays and move cases successfully to resolution.
Separate Cutoffs From Trial Dates
Typically, the trial date establishes the other cutoff dates for a case, such as when discovery is due or when expert witness reports can be filed. The cutoffs work backward from that trial date, so if a trial is set for January 1, for example, the cutoffs would be set at a certain number of months prior to that date.
But what happens when long docket delays mean that trial dates are set a year, or even years, in the future?
One option for trial lawyers is to lobby the court to separate case cutoffs from the actual trial date. By getting a scheduling order put into place that is not tied to the trial date, attorneys have a set amount of time to complete that discovery or exchange expert reports. This can help move the case forward even without an imminent court date.
While this may run counter to how things have traditionally been done, COVID has upended many things about trials, and courts need to adapt the way they deal with pre-trial aspects as well.
Use Trial Structure to Create Leverage
Creating a trial structure even if you know you won’t be able to get a trial date anytime soon means that you can use that structure to create the pressure needed to move your case forward.
With a cutoff date for discovery set, the opposing attorney once again has an incentive to treat the matter seriously and inform his client accordingly. Once the opposing side faces the prospect of having to shell out for expert witnesses or invest hours in the discovery phase, they will have more incentive to take a hard look at the case to determine their client’s exposure.
And once discovery is closed, they know that if and when the case does go to court, they may not have access to critical evidence or information they need, creating an incentive for them to come to the table. In addition, after cutoffs, you would have all the facts and information you need to propose to the defendant they engage in mediation.
As civil attorneys, we’re used to having the pressure to settle cases tied to the trial date, and not having a trial date set or having one too far in the future can throw a wrench in our trial strategy. But these incremental deadlines can help you apply similar pressure on defendants and regain the leverage you need to close the case.
Give Clients Context About Docket Delays
For clients in a civil case, the process is emotionally exhausting. They have experienced injury, pain and loss. They want resolution. They want justice.
Long docket delays exacerbate the pain of trials for them. As their attorney, it’s important to help support them through the long process and help them understand the impact of these delays on their case.
Managing their expectations and communicating effectively is critical. For example, they may have a twelfth setting for a trial date and expect that their case will go forward without the context of what that setting practically means. It’s important to help them understand what their docket setting means for the probability of their case actually being tried. Communicate with them regularly about updates to the trial date and changes to the docket and their odds that their case will proceed.
But navigating these long docket delays with clients can be particularly challenging when it comes to discussing settlement offers. While the offer may be less than their lawyers feel is fair, the client needs to weigh the prospect of getting a higher amount if and when the case does go to trial against the emotional toil the delay will take and the extra incurred costs that long court delays cause.
After all, having to potentially prepare them for testifying at trial multiple times because of docket delays means that they will have to endure painful questioning repeatedly. And needing to pay for expert witnesses to prepare for, and potentially even travel to the trial, more than once means that you could potentially rack up tens of thousands of additional dollars in trial costs. Your client needs to take a hard look at whether it is worth the risk and emotional turmoil to continue on with the case for perhaps another year.
There is no easy answer, but your counsel and support are critical to helping them reach the right decision for them.