How to Push Lawsuits Toward Resolution during the Pandemic
April 20, 2020
- With Ohio courts on pause, pushing discovery can still help drive settlement negotiations.
- Online video mediation and arbitration are still available and provide an economic way for parties to attempt to find common ground and settle.
- Narrow your causes of action and file any dispositive motion (to dismiss, for summary judgment, etc.) sooner than later to get in line if settlement is truly not an option.
Closed courthouses. Canceled or postponed trials and hearings. Evictions and foreclosures suspended completely. Judges deferring action on all but the direst emergencies.
The COVID-19 pandemic has impacted entire industries and professions, and the legal profession has not been spared. But for businesses looking to expedite their pending litigation in a cost-effective way, there are still a number of things that companies and individuals involved in a lawsuit can do now to make progress and drive the suit toward resolution.
With all courts continuing deadlines for motions, decisions, hearings, trials, and oral arguments, trial lawyers and their clients may feel like most of the normal options to create leverage have disappeared. But the discovery phase of a lawsuit—in which the parties are required to exchange documents and information—has always been designed to proceed without court intervention.
And although courts around the country, including the Ohio Supreme Court, have issued orders that purport to pause filing deadlines and statutes of limitations, most courts are stating that discovery should continue.
So issuing interrogatories, requests for admission, requests for production of documents, or deposition notices may be your best bet for ratcheting up the pressure on the opposing side. In most places throughout the country, video depositions have been common for some time. And with slow dockets, court reporters will be all too happy to help.
Even if proceeding with discovery doesn’t force the other side to the settlement table right away, you’ll obtain useful and valuable information that you can use as the courts slowly reopen and get back to normal.
Consider Alternative Dispute Resolution
For some litigants (and lawyers), mediation and arbitration are anathema—a sort of diet litigation. But the fact is, resolving a case without the aid of a judge may be more common and more important in the coming months and years, as courts struggle with reduced staff, reduced hours, and increasing difficulty adjudicating disputes for the public.
In recent days, several mediators have reached out to me, to confirm that they are both willing and able to conduct mediations online, without sacrificing privacy or quality, and colleagues have reported that online video mediations have functioned more or less the same as in-person mediations. If the parties are willing to give it a shot, ADR may be a far more economic and sensible option than waiting many months to get back before a judge, and who-knows-how-long to get in front of a jury.
Arbitration offers similar benefits, but more finality. Parties to a lawsuit may be reluctant to abandon the courts for a private arbitration, in which one or more arbitrators (lawyers or retired judges) decide the matter once and for all. But for parties wishing a speedier and more conclusive resolution, arbitration may be worth exploring.
Narrow Your Causes of Action
Lawyers often cast a wide net when filing a lawsuit, alleging every cause of action they think might exist under the facts and the law. I have a case in which opposing counsel filed a complaint alleging fourteen different causes of action. As you can imagine, both discovery and motions practice have been a years-long slog. In truth, there are probably two legitimate causes of action in the case. For enterprising counsel and shrewd litigants, now is the time to jettison unnecessary, duplicative, or unsupported causes of action. Make it simple for the court and boil the case down to its essence by voluntary dismissal of certain counts. Fewer counts will make it easier and quicker for the court or a jury to dispose of the case.
File Your Dispositive Motion Now (If Necessary)
Most courts issue decisions based upon the order in which related motions are filed. In other words, if you filed your motion for summary judgment four months ago, and I filed mine last week, the court will look at yours first. So if your case truly cannot be resolved by settlement or alternative dispute resolution, and the court will need to weigh in, file your motion as soon as possible. It may be several months before the court picks up the motion to write an opinion, but at least you’ll be in line sooner than if you wait to file until the courts reopen more completely.