November 19, 2020 Practice Points

Litigating During Covid-19: Continuances, Continuances, and More Continuances

Continuances are becoming a band-aid solution for courts in quarantine, so attorneys must adjust to avoid over-preparing early and then having to re-start from scratch.

By Stephanie Richards

Amidst the Covid-19 pandemic, the court system has been shaken to the core. As a litigator, staying organized has always been important because this career is shaped around a definitive procedural process. As states face a second round of shut-downs, litigators are faced with continuing deadlines, victims are denied the right to a speedy trial, and standard procedures are thrown out the window. 

Rather than transitioning to virtual hearings and trials, some courts have decided to issue continuances, acknowledging the importance of in-person proceedings. However, these courts are faced with a mile-long back log that will only worsen as the pandemic drags on. Other courts have decided to do some proceedings virtually, taking into account that time is of the essence when dealing with a citizen’s rights. However, not all proceedings can be effectuated virtually without compromising the process.

Whatever the situation might be in your jurisdiction, being prepared is a litigator’s best defense. Here are the top three ways to prepare for the unknown.

1.  Prepare Written Documents to Jump Start Future Preparation

When initially preparing for a court date in pre-Covid-19 times, litigators understood that, while continuances happened, there was at least the potential for the trial or hearing to actually happen as scheduled. In the time of Covid, the phrase “hope for the best but plan for the worst” is apropos: attorneys should continue drafting necessary pre-hearing or pre-trial filings regardless of the high likelihood of a continuance.

When an order for continuance comes down, attorneys should draft short memorandums or “attorney’s notes” for each of the issues to avoid the need for retracing steps weeks or months down the road. This avoids retracing the costly steps like legal research or reviewing discovery. Clients will thank you for saving them money, and future you will thank you for saving time.

2.  Communicate Early and Often

Communication is key, whether it is in relationships or careers. When a continuance is ordered, attorneys should notify associate attorneys, paralegals, clients, and witnesses. Prepare a contact list in advance for each matter to ensure all interested parties are up to date. Communication not only ensures that you are not wasting your own time, but also that you are communicating to the client that you value their time.

3.  Keep a Detailed Calendar:

Most attorneys keep a calendar, but these calendars are typically bare bones. Calendars should have details for each entry and should be updated regularly. Litigators work on a series of deadlines and missing a deadline could be the difference between winning a case and having a case dismissed. Consider using reminder entries for key deadlines at one month, two weeks, and one week. Written discovery goes largely unaffected by the pandemic and, yes, continuances are commonplace, but keeping cases moving is essential to avoid having to further continue trial dates. A client who has waited months to have their day in court is not likely to look kindly on their lawyer who must delay the date again because they didn’t get the work done in the meantime—and neither will the court.

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Stephanie Richards

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Stephanie Richards is an attorney at Goosmann Law Firm in Omaha, Nebraska. 


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