Litigation in the Age of COVID-19: A Personal Injury Lawyer’s Perspective
The physical distancing measures put into place by the Ontario government have had a dramatic impact across all facets of society. The legal profession has not been exempt from this impact. Many would be surprised to learn that legal services at Lerners continue, even in the face of closed offices, the cancellation of in-person meetings, and the suspension of civil trials and motions.
This blog outlines many of the changes to the practice of law, many of the things that have remained unchanged, and also explores the creative adaptation being shown by Lerners specifically and by the legal profession in general. As the old saying goes, “necessity is the mother of invention”.
Because society’s reckoning with COVID-19 is a fast moving target, be aware that some of the perspective in this article may be time sensitive. Also, by way of full disclosure, I am a plaintiff personal injury lawyer, so my perspective is obviously filtered through my own experiences within this practice area.
THE BIGGEST CHANGES
CLOSURE OF THE COURTS
For a litigation lawyer, the biggest change caused by COVID-19 is the unprecedented shutting down of the courts. To protect the health and safety of all court users, the Superior Court of Justice suspended in-person operations effective Tuesday, March 17, 2020, and until further notice. In London, there was an even more dramatic closure of the entire courthouse for two weeks, after more than one court staff member tested positive for COVID-19.
All criminal matters scheduled for any appearance between March 17, 2020 and June 1, 2020 were adjourned. All civil matters to be heard on or after March 17, 2020 were adjourned, with no fixed date for the matter to return to court. Since March 17, 2020, the Superior Court of Justice has only heard high priority, non-trial proceedings. Neither criminal nor civil jury selection will recommence until September 2020 – at the earliest.
These are big changes which do affect litigants who are unable to resolve their dispute on a negotiated basis and who are waiting for a trial to resolve their case. Fortunately, the actual number of cases that actually proceed to trial represent just a tiny fraction of all civil cases. While the impact on the specific cases awaiting trial does mean that those parties have no choice but to wait until the courts resume regular operations, the reality is that for the vast majority of cases, the inability to secure a trial should do little to slow down the pace of litigation or the resolution of litigation. It isn’t perfect, but it is more manageable than the public would think.
NO FACE TO FACE MEETINGS OR ASSESSMENTS
The last day that I met with clients in my office was Friday, March 13, 2020. Since then, even with new clients who have contacted me, my communication has all been through phone calls, emails, and written letters sent by regular mail. My experience mirrors that of everyone at Lerners. We have taken the need for physical distancing very seriously.
In my practice, whether at my request or at the request of an insurance company, injured clients frequently must attend an assessment with a medical professional. Currently, in-person assessments are being postponed as the assessment of an individual for the purposes of a lawsuit does not constitute an essential service. This has created some hold ups for files and there is not an easy solution to this, until physical distancing restrictions are relaxed.
WHAT HAS CHANGED LESS THAN ONE MIGHT THINK
Hand in hand with the absence of in-person consultations is the fact that all of us at Lerners are now working remotely. Long ago Lerners took the necessary steps to allow it to continue to function as a “virtual law office” through such things as:
- Digitization of paper files, so that each letter, document, photo, or law brief in a file can be accessed through a VPN connection, so long as there is a secure Internet connection;
- The adoption of digital dictation software so that any document or correspondence that is dictated remotely will be sent to an assistant digitally for remote transcription;
- The delivery of all office voicemail messages to each lawyer, via email, so that wherever a lawyer may be located, voicemail messages are immediately received by the lawyer or staff member; and
- The acquisition of the necessary software to allow us to host or participate in virtual face-to-face meetings. I am “seeing” some of my partners in the Toronto office more often these days than I did prior to this pandemic, because of our swift migration to virtual meeting platforms.
Additionally, our courts quickly adapted to allow for a secure portal through which a statement of claim could be issued or a statement of defence could be filed, digitally, removing the prior need for a person to physically stand at the court counter to provide the documents in person and cheque to pay for the filing fee. The ability to offer virtual hearings is also quickly being ramped up. These developments are actually very positive; they are an improvement on the status quo.
The Chief Justice of the Superior Court of Justice, The Honourable Mr. Justice Geoffrey Morawetz, has forecast that the “paper-based system is not going to exist any more”.
His Honour went on to add, “If there is one positive that is going to come out of this crisis [it] is that we have been forced, and the Ministry has been forced, to accelerate its plans on moving to electronic hearings and also electronic filings and we cannot go back.”
Regulatory changes have been implemented by the government to accommodate the inability to see a person sign a document. It may now be witnessed virtually. Appropriate changes have been made related to the witnessing of a will. Legislative changes were announced by the Ontario government suspending the running of limitation periods, so that no one’s claim is at risk of becoming statute barred.
CHANGES ON THE IMMEDIATE HORIZON
There are a number of legal processes that have been temporarily suspended, but which should be quickly reconfigured. When the lockdown was first announced by the government, mediations that had been scheduled in an attempt to settle cases had to be rescheduled. Similarly, examinations for discovery (a question and answer session under oath which is a standard feature of all litigation) were also postponed. Very quickly the entire legal profession has adapted to find solutions to these barriers.
I will engage in my first “virtual discovery” at the end of April. The defence lawyer will be in her home. I will be in my home with my client in her own home. The court reporter will also participate remotely. Through the use of video conferencing technology, we will all be able to see and hear one another and the court reporter will be able to prepare a transcript of the proceedings, even while none of us is actually physically in the same room.
Mediators are quickly adapting with similar plans to host mediated settlement conferences, digitally, but with all the parties being able to see and hear one another.
WE ARE HERE TO HELP
Whether it is a brand new inquiry, work on a longstanding case, or efforts to settle a case, the lawyers at Lerners all remain available to you and capable of advancing your interests. We are not calling it a “new normal” but rather, “normal for now”. While we look forward to things returning to normal, we also recognize that a number of aspects of what we do will probably never return to normal. For now, we continue to write letters, send emails, receive, send, and review documents, and otherwise protect and advance the legal interests of our clients.