THE POST-COVID WORLD OF LITIGATION – A PERSONAL OBSERVATION
Posted on Jan 13, 2021 |Publications
By Howard J. Kaplan, Esq. | January 2021
Perhaps now is a good time to address our world after the end of Covid. What have we learned over the course of 2020? Can cases be effectively handled without the ready availability of the courts? Does technology work?
We can now see a light at the end of the proverbial “tunnel,” and thankfully it is not an oncoming train, but rather the introduction of effective vaccines by companies like Pfizer and Moderna. Many of our most vulnerable citizens are already being vaccinated and there are more companies ready to introduce their vaccines in the coming months. Does that mean we will simply go back to business as usual? I submit that we will not.
Our world has forever been changed. We have witnessed an advance in remote technology at an unprecedented pace. Web platforms such as Zoom have supplanted the need to get into a car and drive to a courthouse or a brick-and-mortar facility to conduct proceedings. The same is true for depositions. Attorneys, litigants and insurance carriers have embraced the ability to conduct business remotely. It has allowed for cost-effective, timely and more importantly, quality handling of cases. I am in the unique position of being an active litigator and neutral at NAM (National Arbitration and Mediation). I have participated in alternative dispute resolution (ADR) from both sides of the table, and video screen. I am here to say, that we have not lost a beat. I do believe that the future will present a hybrid approach to litigation. Cases will be litigated remotely and in person. Simply stated, a new item has been added to the menu.
While we saw the Covid pandemic paralyze the court system with shutdowns and delays, alternative dispute resolution proceeded without any negative impact. Lawyers and litigants were able to sit in the comfort of their living room, and in some cases their basements or cars, and conduct depositions, arbitrations and mediations. Zoom and other remote platforms opened up a whole new world. This new world absent the Covid crisis, might not have arrived for years, and the acceptance of this way of doing business would likely have met greater resistance without the pandemic. Covid visited human and economic oppression on so many of our fellow citizens, yet even out of terrible tragedy comes some positives.
In the early days of Covid, many of us feared that we could no longer effectively practice law. Our simple desire to make a living and properly represent our clients was threatened. As I noted above, the courts effectively came to a halt, and continue to be at a standstill. The prospects of getting a trial now, and in the foreseeable future, are in great doubt. Trial delays in the downstate courts were challenging prior to the pandemic. How does one tell their client that they have no idea when they will go to trial. However, that is the reality now and going forward.
Looking back at 2020, I was able to move cases along thru the benefits of remote technology. NAM not only embraced this technology but offered its technical staff to instruct me on how to participate as a neutral and advocate. Whenever there was doubt, a staff member would join the proceeding to ensure that it went smoothly. NAM's talented support staff stayed on top of getting agreements executed and proceedings timely scheduled. The NAM neutrals were well trained, and ready to assist the litigants and their counsel with navigating the technology where necessary. Thousands of cases were mediated to a satisfactory resolution through mediation and arbitration.
I wrote several months ago that ADR was not an alternative to litigating within the court system, but rather the only effective means by which to resolve the vast majority of cases. Little did I know how prescient my crystal ball was. Today, as I reflect on the year, alternative dispute resolution, and in particular NAM as an administrator, stepped in to fill the void left by our legal system.
With the close of 2020, so many of us are happy that the challenging year has come to an end, and we move forward into a changed new world. A world that may be different but offers the opportunity to be so much better. While Covid will happily and hopefully be something that is in our rearview mirror, many of us will do business differently than before the pandemic. We will spend more time working from home, there will be more virtual court appearances, and many more virtual mediation and arbitrations. Why not. We have learned that it works, it is more cost- efficient to our clients and principals, and simply gets the job done.
Delays in the court system will continue for the foreseeable future. Jurors will be hesitant to report to courthouses, where they will be in small, confined spaces. ADR affords the opportunity to accomplish the primary goal of all disputes, “to get them resolved”. Time is money. The sooner a case resolves the greater the benefit to the carrier and plaintiff. Insurance companies desire to shrink pend time – the time a case works its way from beginning to end.
The ravages of Covid have brought about changes in the way we think and do business. So many have suffered tragic loss both emotionally and financially. So many businesses have been lost in the wake of Covid. Yet as noted, even in the face of devastation, loss of lives and livelihoods, we see some positives, a silver lining.
We have witnessed corporations partner with the federal government in Operation Warp Speed to develop effective vaccines that will eventually eradicate this terrible disease. Many acts of kindness and charity occur daily. We came to recognize the true heroes, doctors, nurses, firemen and police, and so many others. We have seen so many come together in an effort to overcome the great challenges presented. I am pleased to say that we have succeeded.
As we enter a new world post-Covid, I wish all a healthy, happy and prosperous New Year. Our system of justice and political system is far stronger than any pandemic. We now have alternatives to how we handle legal disputes remotely. We owe our deep gratitude to all of the private sector companies that stepped up to the plate this year and allowed our world to function as they diligently searched for the means to eradicate the disease. NAM is one company that stepped up to the plate. NAM did not allow Covid to stop its mission, to facilitate the effective resolution of disputes in a cost-effective manner, while not sacrificing quality. It is with great pride that I serve as a neutral and advocate at NAM.
Howard J. Kaplan, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and available to arbitrate and mediate cases throughout the United States. In 2019, Mr. Kaplan was voted a Top Ten Arbitrator by the New York Law Journal Best Of Survey for the fifth year in a row. He is a partner at Carman, Callahan & Ingham LLP.
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