Litigating during the pandemic

By Jeffrey Shinehoft September 16, 2021

There is an old axiom, what does not kill you makes you stronger. Since finding ourselves litigating during a pandemic, I think the axiom should be changed to: what does not kill you makes you weaker for your next battle with the thing that “does not kill you”. There is a compound fatiguing effect that the pandemic has ground upon us.

Prior to the pandemic, our system of litigation was fraught with inequities and delays.

We were routinely surprised by how long an average file took to resolve. The court system was laboured with understaffing, outdated technologies, and massive user demand.

The legislative amendments affecting rules of evidence, procedure, and how trials are conducted did little to streamline the process. This, coupled with the use of juries in civil trials, put a major strain on our community and industry in handling civil disputes.

I was a firm believer that the entire system of compensation for injured people needed a dramatic overhaul.

What we couldn’t see coming, however, was a global pandemic about to make our infect not just people but our court procedures:

  • trial dates set years in the future with no certainty when they will actually proceed;

  • motions and filings more difficult to accomplish;

  • assessment hearings ground to a halt;

  • small claims courts were virtually shut down for a year, particularly impacting lower-income participants from access to justice, and

  • typical jury cases, sometimes tried by a judge alone.

We have seen parties use delays and system restraints to obfuscate their obligations. Without a doubt, COVID’s effect on our already vulnerable legal system has negatively affected injured persons with great significance.

But, with great challenges come great opportunities.

As an industry, we now have the opportunity to work with each other in a direct, honest, and meaningful way.

Lawyers must take their role as Officers of the Court to heart. We owe it to the Law Society, colleagues, the Court, and the profession at large to answer our emails, calls, along with promptly returning requests for scheduling and production of documents, and so on.

While we may have little control over when our matter is assigned a court date, we must give our clients professional and clear communications about the state of their case and the positions of each party. We must empower our clients with knowledge and decision-making opportunities where available.

Mediation is now more important than ever.

The courts, where possible, are looking for parties to resolve their claims without judicial intervention and there is a real community benefit of doing just that.

I have always believed that Mediation can be successful without leading to an immediate resolution. There is power in understanding why an opposing party is taking their position. With respectful, honest, and timely dialogue.

Let’s help ease the burden from the impacts of this pandemic, at least in our industry.