The COVID-19 pandemic will have a lasting impact to our legal system. In order to adapt to the sweeping disruptions caused by the novel coronavirus, state and federal courts are forging a new, virtual path. As the world around us changes, perspectives on social and economic issues will change. Depending on a variety of factors - from one's occupation, to now acutely the pandemic impacted their industry or where they live - these shifts in worldview will be quite dramatic. It follows that how jurors evaluate your clients and trial themes will be impacted.
In this article, DRC examines how the legal system has been impacted to date. Further, it outlines proprietary research that DRC will conduct to understand how the pandemic will alter juror decision-making.
Courts around the nation are striving to reach a balance between managing public safety while maintaining essential court functions by embracing virtual alternatives. Courts first explored the potential of virtual conferencing on March 16th, when District Court Judge Alison Nathan (SDNY), stating that the court was under "extraordinary circumstances," allowed a sick juror to FaceTime into deliberations on the final day of United States v Ali Sadr Hashemi Nejad. Starting on March 2nd, New York State courts froze non-emergency actions.[2] On April 13th, New York state judges began virtually reopening their courtrooms to pending lawsuits and criminal cases, using remote video capabilities such as Skype to unfreeze dockets for "nonessential" actions. [3]
Remote proceedings are successfully occurring throughout the country. For example, on April 22nd, Texas state court Judge Beau Miller held a one-day bench trial over Zoom. [4] Judge Miller noted that more than 2.000 viewers had watched portions of the trial throughout the day. highlighting the potential for more public involvement going forward. By Friday, April 24, the Texas Office of Court Administration announced it held approximately 10,000 Zoom meetings - more than 300 a day, since March 24th. [5] While courts are embracing virtual hearings as part of the new normal, many judges and court officials believe that video technology will be an important tool long after the pandemic ends because of its potential to save time and money, as well as its convenience for litigants. [6]
While case activity has slowed. it has not stopped "We have far too many cases to have operations come to a grinding halt," said Clerk of Court Molly Dwyer of the Ninth Circuit Court of Appeals. "Moving to remote video and audio conferencing is the best way to protect judges, employees, litigants, and the public, while also upholding our constitutional responsibilities."[7]
A recent report by LexisNexis' division of legal analytics, Lex Machina, examined the rate at which activity in federal courts has been affected. The study compared federal court proceedings during the month of March and the first two weeks of April for 2018, 2019, and 2020[8]. Their research tracks changes and emerging trends in filings, terminations, and certain case findings logged into PACER across seventeen practice areas (e.g., antitrust, contracts, environmental, insurance, patent, securities, etc.).
According to Lex Machina's comparison of filings by practice area between March 2020 and March 2019, there was a 62% decrease in antitrust case filings, a 52% decrease in environmental cases, and a 2% decrease in contract cases.
However, insurance, securities, and patent cases exhibited a 6%, 15%, and 7% increase, respectively, in the cases filed in March 2019 compared to March 2020. Overall, out of the seventeen practice areas studied, twelve saw a decrease in filings during this timeframe. The data for the first two weeks of April mimics the March results - out of the seventeen practice areas studied, eleven saw a decrease in filings in April 2020 compared to April 2019.
Lex Machina also looked at case terminations as indication that cases are settling at a higher rate due to the Coronavirus crisis. The March data revealed that out of the seventeen practice areas, twelve saw fewer cases terminated in March 2020 than in previous years. which is likely attributed to the decrease of court activity. The April 2020 data shows that in most practice areas, there were fewer cases terminated in April 2020 than in previous years, with the exceptions being antitrust, bankruptcy, environmental, insurance, and product liability. This indicates that there has not been an increase in settlements as a result of the COVID-19 outbreak - at least not yet.
With respect to summary judgment rulings, there was a 29% decrease from March 2020 to March 2019. However, when comparing the first two weeks of April, there was a 10% increase from 2019 to 2020. Despite being preliminary, the overall data shows a substantial slowdown of case activity without completely stopping altogether.
The impact that COVID-19 will have on future litigation and the number of lawsuits that will stem from it is difficult to predict with certainty, but, as the legal landscape shifts, this new reality will inevitably alter juror decision-making