Since December of 2019, COVID-19 has impacted facets of every business. Not one sector hasn’t felt some strain as employees were relocated to work from their homes and social distancing became the public norm.
So, too, have the court systems been impacted by this growing need to contain and slow down the spread of the virus. As a result, this has led to a buildup of cases that by this point in their lifecycles, should have been closed.
“Since the shutdowns began, the courts have closed or significantly slowed down their operations,” explained Meg Sutton, SVP, Casualty, at Helmsman Management Services. “As more people become vaccinated and incidents of diagnoses continue to reduce, we are seeing some courts start to reopen or have soft openings for proceedings.”
It is this backlog of cases that has courtrooms looking for alternatives to tackle the issue while continuing to keep public safety at the forefront. The following are three ways courts have begun to address this issue and the advantages and concerns of each.
1. More cases are being heard over Zoom court.
One of the biggest contenders to combat case backlog has been to conduct court proceedings over Zoom.
“Technology has really been leveraged during this time to keep the wheels of justice rolling,” explained Kristin McMahon, SVP, North America Specialty Claims and Canada, at Helmsman. “Zoom has been an ideal platform for the more administrative pieces of a case, including motion practice.”
The advantages of Zoom don’t stop with motion practices; some courts are even turning to full-on Zoom trials to keep the caseload from piling too high.
Of course, the biggest advantage courtrooms are experiencing with Zoom is the elimination of in-person contact that helps to prevent the virus from spreading. It’s also a time-, cost-, and resource-saver — schedules are easier to accommodate, travel is eliminated, and courts are working at reduced staff in-house, with most employees joining in remotely. Moreover, it keeps cases moving, bringing all parties from lawyers and witnesses to the juries and judges together at the click of a button.
However, despite Zoom’s advantages, challenges remain – especially when it comes to trials.
“Juror distraction can be a big problem,” said Sutton. Even under normal circumstances, where everyone is physically present, keeping jurors engaged can be difficult. With Zoom trials, there are fewer safeguards to ensure that jurors are not on their phones or multitasking in other ways. Jurors may also be tempted to research the case or the parties on the internet during the trial.
“Additionally, the jury pool changes when it’s remote,” Sutton continued. “It’s dependent on technology, which is not necessarily something every household has access to. You could really diminish your juror pool by eliminating people without access to advanced technology and people who aren’t as tech savvy.”
In the long term, both McMahon and Sutton agreed that Zoom as a vehicle for fully remote trials is likely to lessen in popularity as places open back up. “Though,” added McMahon, “from a pretrial motions and depositions standpoint, using virtual appearances instead of in-person has shown effective for a number of reasons.”
2. Mediation and arbitration have found a virtual home, proving more litigation could be moving to this new platform.
When there is a court- ordered mediation, judges require representation from both parties, including legal counsel. Through this process, the goal is to get cases resolved and off the docket in a timely manner. But because of COVID-19, these proceedings, too, have hit a standstill.
Before the pandemic, arbitrations and mediations had already begun moving toward taking advantage of virtual tools. But since COVID-19, courts have experienced fully the benefits of mediation and arbitration done virtually. Much like Zoom court, it keeps backlogged cases moving.
“Additionally, courts have found virtual mediation and arbitration to be less expensive in that travel costs are all but cut. These settings are also bringing about a bigger inclination to settle. As McMahon and Sutton explained, although mediation has always been a preferable avenue to settle a dispute, the prospect of litigation during a pandemic has acted as a motivator to settle during mediation”.
However, much like Zoom court, virtual mediation is only as good as the technology available.
“Also, a really effective lawyer might not be as effective virtually as they are in person,” Sutton added. “There could be elements lost through technology, especially eye contact or being able to read someone’s body language. That can be a disadvantage for both parties.”
“Some would argue that virtual mediations are better or have found a higher rate of resolution, because all parties are able to take a break and return to the matter. Whereas in-person mediation doesn’t have that reflection time,” McMahon said. “Often, in-person means traveling to and from the court in the same day, sometimes across states.”
However, to truly know the long-term benefits, she said more research will have to be done.
3. Courts are resuming activities in a limited capacity.
Even with a greater reliance on virtual court options, some states are opting to reopen courtrooms in accordance with statewide guidance. This has a few advantages: namely, the courts are already designed to hold trials, whereas a Zoom trial requires more setup.
But resuming in-person court requires a lot more thought and logistics planning to be done correctly during the pandemic.
“There are a lot of planning and lengths to which the court has to go in order to create a safe space for resuming in-person litigation,” McMahon said.
There’s a need to keep jurors, plaintiffs, defendants, and all other personnel socially distant from their neighbor to adhere to CDC recommendations. Additionally, jurors and witnesses are wearing masks, which could limit a court member’s ability to read someone’s body language or see facial expressions that could help or hinder a case.
“Restrictions are also inconsistent across states,” said Sutton. “So, for example, a company in one state might be adhering to stricter rules and not allowing employees to travel. But then they might need to litigate a claim in another state that’s requiring an in-person trial. How do they balance that?”
A final concern is comfort levels of all the parties involved, particularly jurors. If a juror is uncomfortable being in a courtroom for fear of contracting the virus, they may spend less time in deliberation and come to a quicker verdict in order to limit their own exposure. This could have adverse effects on cases that could benefit from discussion.
Applying a proactive approach to keep you in the know
At Helmsman, we think it’s important to stay informed as to the changes in the court landscape while courthouses decide what method is best for them, and as the cases and the people behind them await their day in court.
We are continuing to adapt to and monitor these emerging trends, ensuring that you feel prepared and ready for whatever trial or mediation this ever-changing court landscape brings.
“We’re constantly looking at the way the courtrooms are changing and reporting on how our claims professionals have fared during virtual court,” Sutton said. “We’re looking at what’s working, what’s effective. And we’re using that to inform our decisions as we move forward so our customers have the right strategies in place.”
At Helmsman, we don’t settle for yesterday’s solutions. From speeding up the claims process to keeping you in the know about emerging risks in your community, field, or industry, we want you to have the information you need.
To learn more about virtual litigation and how we’re preparing for its impact on you, our valued customer, please contact your Helmsman representative.
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