Why Early Settlement Should Be Considered During the Pandemic

Does delay really matter? Yes, it actually does. The way things look now, civil jury trials will be tried four to seven years after the case was filed. Some of those disputes involve issues that happened two to three years prior to the case being filed. Not only could there be possible witness recollection issues, but also companies may lose employees who may have been key witnesses. Then there are the normal things that happen with time, people getting older and, in the worst-case scenario, getting ill or dying, resulting in other possible losses of key witnesses. In addition, what is to be said about jury empathy? Will the jury have the same passion for a just decision if the dispute to be decided happened a decade ago rather than a few years ago? These are all considerations for each case and whether it makes sense for that particular case to wait it out or try an early resolution.

This backdrop, or backlog, is why all parties should consider mediation or informal settlement during this pandemic crisis. Resolutions to lawsuits will likely increase, and should increase in the next year, as cases build up in the pipeline of the justice system. There are a number of reasons why parties should consider an exit strategy to litigation during this pandemic era.

Since March 2020, there has been little certainty as to when “things will get back to normal.” In mid-March, most us left of our offices to work remotely for “a few weeks.” Nine months later, many of us still have not gone back to our offices. Many states have reinstituted stay-at-home orders, shuttering numerous businesses for the time being. As of this writing, things are far from “normal.” Consumers don’t know what is going to happen in the economy or with their jobs. Small businesses are feeling the effects of the pandemic in very painful ways, especially the hospitality industry. Big businesses have no idea how the continued spread of COVID-19 will affect their business models. Now is the time that everyone needs some certainty. Mediation and a resulting settlement can provide that certainty, at least as to pending disputes.

Another reason to consider early resolution is a shift in priorities and resources. The pandemic has undoubtedly caused a shift in priorities for businesses and individuals alike. As the virus continues to rage on, companies may want to shift resources from litigation, or from certain pieces of litigation, to other areas. Even the human resources needed for litigation may be prioritized for business issues rather than the pursuit of litigation. Individuals may want to concentrate on other issues in their lives, rather than looming litigation. Settlement allows the parties to shift resources to their new priorities.

Finally, for now, resolution appears to be the only solution to the backlog and to end ongoing litigation. Although parties always want to end litigation, failing to resolve a case early during the pandemic era will result in litigation lasting for years and years. Until vaccines have become widely administered, or a substantial amount of funding provided to add more judges, there will not be a way to resolve this crisis. Settlement of claims is the only option at this time.

Amy L. Drushal is a shareholder at Trenam Law in Tampa, Florida. Amy serves as editor in chief of the ABA Law Practice Division’s Law Practice Today.

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