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Force Majeure & Impossibility of Performance Resulting from COVID-19
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Almost everyone believes in the law. But when a jury summons shows up in the mail, excuses often take precedence over beliefs.
The COVID-19 pandemic has caused an unprecedented pause in litigation. For the first time in 100 years, the Supreme Court of the United States has postponed oral arguments, California state courts have postponed trials and Pennsylvania state courts are closed. And courts in virtually every state and federal district (at the appellate and trial levels) have extended deadlines, postponed trials or have outright shut down.
These delays have stretched litigation timelines. Cases that might have wrapped up within weeks may now drag on for months. Even legal disputes that didn’t have any upcoming deadlines or trials may take longer to resolve as litigants look to save legal fees or hold off on agreeing to settlements.
This pause in litigation has impacted lawyers and their firms, upending everything from daily tasks to monthly cash flow projections. Still, litigators must find ways to keep some cash flowing in the door.
Here are four ways litigators can be productive while they contend with the Coronavirus-induced slowdown in litigation.
Indefinite delays in court proceedings bring prolonged uncertainty for litigants. Many will find it difficult to engage in any kind of personal or business planning with a legal dispute hanging over their heads.
This uncertainty could lead clients, adversaries and interested third parties (like insurance companies) to change their positions on settlement. To get some certainty from resolving a legal dispute, litigants may be willing to concede more than they were just a few weeks ago.
With litigation paused, attorneys should reach out to those parties. Is a party now willing to make any concessions to reignite settlement discussions? Has a situation changed to alter the previous risk/reward calculation of foregoing settlement and taking a case to trial?
With COVID-19 hindering lawsuits that might have been close to a resolution, litigators should use this pause to examine any other cases that aren’t as far along in the litigation process and try to unlock value in them.
For lawsuits that have already been filed, they should revisit the legal theories they are pursuing and the facts that have been developed to ensure their clients have a strong likelihood of prevailing. And, they should brainstorm additional arguments based on facts that might strengthen cases and lead to more favorable settlements, verdicts and allocations of damages.
For cases that are in the discovery phase, litigators should make sure the information they’re receiving from opposing parties is what they need to prove their clients’ cases. If not, they should create and serve additional discovery requests, and ensure that opposing parties have responded to the requests already served. Litigators should also explore any additional issues raised by discovery responses to determine if they could lead to a settlement based on the issues they cause for a litigant.
For disputes in the pre-litigation phase, litigators should revisit how they previously valued those cases—with respect to a dollar amount and the likelihood of success. A fresh look at a dispute might surface ideas for maximizing a client’s recovery that didn’t present themselves earlier. And, depending on the financial footing of their law firms as a result of COVID-19, litigators may need to reconsider taking cases they might have initially dismissed due to the perceived low value or difficulty in securing a favorable outcome.
When litigators get busy, the first thing pushed to the backburner is usually marketing. But marketing is the lifeblood of any legal practice. Without clients there cannot be a legal practice. So, litigators should devote a fair amount of their newly free time to marketing.
In-person marketing tactics (like lunches and events) obviously have to wait, but many tried-and-true law firm marketing tactics can be implemented from the comfort of a home office.
Litigators can revisit or establish a blog. They can implement or check in with their digital marketing efforts, such as Pay-Per-Click campaigns, search engine optimization and lawyer directories. Perhaps some freshening up of their firms’ websites are in order as well.
Litigators should also stay in contact with current and prospective clients and referral sources (including friends and family) through social media and email marketing. And, with the ease and low cost of video conferencing tools, litigators can still network face-to-face even while COVID-19 forces folks to stay isolated.
The pause in litigation is causing a cash crunch for many litigators. Some may need to find new ways to keep revenue coming. One way to do so is by developing an additional legal practice that’s related to a primary practice, but not as negatively affected by the coronavirus pandemic.
For example, employment discrimination lawyers could provide legal consulting services to businesses and organizations regarding COVID-19-related employment issues. Litigators with estate planning backgrounds might consider helping families and business owners with their estate plans. Lawyers familiar with bankruptcy litigation could assist individuals and organizations with bankruptcy filings. Litigators involved in corporate transactions might want to consider a transactional practice focused on contracts impacted by COVID-19 (although these days, COVID-19 is posing an existential threat to some transactional practices too).
When developing an additional practice, litigators contend with the same issues as new attorneys. They’ll need to provide a level of legal counsel that won’t lead to malpractice claims. They’ll need to market their new practice to current and prospective clients. They’ll need to do these things in a cost-effective manner. And, they’ll need to develop the practice quickly enough to provide quick cash flow.
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