The suspension of jury trials during the COVID-19 pandemic highlighted the strategic role played by the unknowable jury. Like the Sword of Damocles, the jury acts as a trump card, pushing plaintiffs and defendants to reach for more certain (albeit less advantageous) settlement options. But things are changing.
Justice looks different inside a global pandemic. It starts. It stops. And then it starts again. Within this rhythm, the U.S. District Court for the Southern District of New York has held more than 100 jury trials since the start of the pandemic, relying on an aggressive, multi-pronged safety protocol. This effort is partly technological, with non-contact digital thermometers authenticating the health of all court visitors. It’s also architectural. Attorneys and their clients communicate through telephonic devices that allow them to whisper to each other from a distance. Attorneys and witnesses address the court from Plexiglas booths, a setup that enables them to remove their masks and show their faces.
But it’s not just the architecture of justice that has changed. So have its tactics. Matt Haicken, an attorney based in New York, recounts a recent case. In 2020, his client, an elderly woman, tripped on a piece of wood while walking along a closed access road outside Manhattan’s Stuyvesant Town. She took a hard fall on the concrete and severely damaged her wrist. The accident was captured by a high-definition surveillance camera, which also showed that the piece of wood was left near the median by a construction crew member. Legally, there’s nothing particularly noteworthy about the case. Still, by March 2021, Haicken, who had filed a lawsuit on the woman’s behalf six months prior, had made little headway in his negotiations with the contractor and its insurance company. This was unusual. “[I]f it’s on video, they usually make some effort to settle early,” he says. “But they’re not returning my calls.”
The problem? He lost his leverage. The closure of courthouses and the suspension of jury trials gave the defendants little incentive to settle with the plaintiff. The action lingered indefinitely.
The COVID-19 pandemic changed everything. And, 22 months later, the legal implications of these changes remain largely unknown. Across the United States, the number of coronavirus-related complaints filed in federal and state courts continues to rise. These legal actions are complex. They’re testing contemporary legal understandings of negligence, causation, and liability, terms that had initially been defined and adjudicated in contexts of relative normality. As Barb Dawson, chair of the Litigation Section of the American Bar Association, explains, “[w]e’re seeing a collision of old laws and frameworks for justice that will be colliding with all new facts.”
While nobody is certain how judges will handle the COVID-19 cases that appear before their benches, it’s important to remember the level of uncertainty that has always existed within the legal system. It can be easy to overlook these uncertainties. After all, the legal system here in the United States relies on legal precedents, a situation which suggests that the outcome of any single case should be fairly predictable. According to Gail Gottehrer, an emerging technologies attorney based in New York City, “[i]f your case is similar and has similar facts to another case, the results shouldn’t be too surprising.”
The problem, however, is that the results often are surprising. Judges aren’t computers. They are people, filled with their own beliefs and their own experiences, both of which shape how they interpret laws, apply facts, and consider arguments. With that said, lawyers can’t simply feed competing arguments into the bench and expect predictable outcomes. Something else is needed, a tool that can help attorneys navigate through the uncertain, uncharted waters of a lawsuit. By harnessing the power of state trial court data, judicial analytics is poised to fill this gap, helping attorneys grapple with the twists and turns of the litigation landscape in our unprecedented times
Keeping up on the litigation landscape with AI-powered legal analytics can help cultivate productive and meaningful client relationships.
“As someone who had his own law firm, I learned very early on that without clients, you had no business,” says Cole Silver, Chief Client Officer at Blank Rome. The statement is as bold as it is obvious. Still, it bears repeating. We all know that operating a law firm involves more than just practicing law. There is also the business behind the law. That is, all of the labor involved in marketing and managing client relationships.
The business of the law requires a certain set of skills, as legal markets are generally soft, filled with more sellers than buyers. There are myriad ways to cultivate connections with prospective clients. Some legal teams rely on networking — meeting the right people, and fostering the right reputation. Others place their trust in marketing campaigns, scooping up space on highway billboards, television programs and radio voiceovers.