How Is The Pandemic Affecting Personal Injury Litigation?

The Covid 19 virus pandemic lock down (or “stay in place” at home) has impacted all aspects of life.  This includes the legal system.  Except for essential functions such as criminal proceedings or the need to obtain a protective order from a court, the courts are shutdown to visitors.  That means no civil cases (i.e. personal injury cases) are moving forward in court at this time or for the foreseeable future.  I have not had any state court judges schedule a telephone conference call in substitution for a scheduled in-court appearance.  Federal court judges are conducting telephone conference calls and are encouraging attorneys to continue to engage in pre-trial discovery proceedings, subject to the limitations imposed by the pandemic. 

Pre-trial depositions are going forward in some cases using Zoom video conferencing technology (all participants must have a computer, web camera and an internet connection).  Conducting depositions using video conferencing technology poses challenges.  Normally, when taking live testimony in person, if two people are talking at the same time, the court reporter will be unable to accurately take down what’s said.  That problem is magnified with video depositions where there is a delay in the audio/video feed.  Also, when conducting an in-person live deposition, the questioning attorney can see what is going on in the room.  With video conferencing depositions, the questioning attorney cannot see what is going on beyond the field of view offered by the video camera.  In addition, unless the questioning attorney has a very large computer screen, they will have difficulty seeing nuanced facial expressions displayed by the witness.  In short, video conferencing depositions are not optimal, but they do enable litigation to continue forward towards resolution under challenging circumstances.

How is the pandemic affecting trials?  During a conference call with a federal judge in New York City yesterday, I was advised by the judge that personal injury cases that require a jury trial are not likely to start until January or the Spring of 2021.  One way to move a case to trial quicker is to waive a right to trial with a jury and have the judge decide the issues by him or herself (“bench trial”).  It will be rare that both sides to the litigation will agree to waive a jury trial and opt for a bench trial.  Plaintiff’s generally prefer jury trials, but this is not always the case, especially if the plaintiff’s claim is one where the plaintiff is likely to obtain a better result with a bench trial.  Defense insurance companies look to delay cases as much as possible because that means they will not have to part with corporate insurance money.  For this reason, most insurance companies will not opt for a bench trial that will require the insurance company to pay the claimant sooner rather than later.   Another way to move a case to resolution quicker is if both sides to the litigation agree to use mediation or arbitration.  The federal courts in New York have mediation panels staffed by volunteer mediators (I have been on the U.S. District Court, Southern District of New York mediation panel for twenty years) that can meet with the parties to litigation and try to facilitate settlement of the claim.  There are also private alternate dispute resolution (ADR) companies that the parties can pay for mediation or arbitration services.  The difference between mediation and arbitration is that with mediation, the mediator does not have the authority to force a settlement upon anyone.  In arbitration, the arbitrator is given the authority to decide all issues raised by the pending litigation and the arbitrator’s decision is binding upon the parties to the litigation.

So what do you do if you’ve been injured.  Do you hire a lawyer now or wait until the pandemic lock down is over?  Generally, it is wise to retain a lawyer sooner rather than later so that necessary investigation can take place while evidence is fresh.  Hiring a lawyer sooner than later has the benefit of permitting the lawyer to advise you what you should and should not be doing to protect you from damaging your claim with uninformed decisions.  Although I am not personally meeting with any existing or new clients at this time due to the pandemic, I am “meeting” with new or existing clients using video technology or by telephone alone.  This permits me to provide important information and advice on issues that are time sensitive, such as how to apply for New York No-Fault insurance benefits and what kinds of medical specialists potential clients needs to see based upon their physical complaints or perceived cognitive deficits.  Personal injury lawyers provide free initial consultations.  If you’ve been injured and think you have an injury claim that may be worth pursuing, protect your rights and contact an experienced personal injury lawyer for a free consultation.