Post-COVID Trial Backlogs – No Joke
September 13, 2022 by Sara Lincoln
As trial lawyers, one of the first questions we get from our clients is, “how long will this take?” This is usually right after the “how much is this going to cost?” question. Neither question is easy to answer, but the question about how long this is going to take has now been complicated by nearly 2 years worth of trials that have been postponed due to COVID.
Every jurisdiction has been impacted by the COVID delays and the efforts to catch-up are causing a lot of angst and conflict within our court system and with the lawyers who have to work within it.
The backlog extends beyond merely finding a judge who can try your case. Our courts have not expanded their capacity to conquer the backlogs we are seeing. Even if the courts had the budgets to hire additional staff, clerks, bailiffs, and court reporters (which they don’t), the pool of candidates available is nonexistent even after the Great Resignation. So, we are left with pre-COVID staffing levels or less, two years of cases to try on top of all the new cases that have come in, and judges, trial court coordinators, and lawyers who are all stressed out just looking at the calendars and trying to figure out where we are going to fit everything in.
If you are a lawyer…
First, BREATHE. Of course, they told me to do that when I was giving birth to both of my daughters and the reality is that it does not make the pain go away. That said, there is little else to do at this point, so why not give it a go. Second, meet regularly with your staff/team and make sure that everyone is managing the stress as best they can. Communicate openly and honestly with your team, your judge, the trial court coordinator, opposing counsel, and your clients.
Make sure your clients understand that while trial delays can have some negative impacts, like witnesses dying and loss of memory, the good news is that in today’s world there is a lot more documentation and digital evidence that can be used to prove your case, so the chances of the delay having a significant impact is low. Update them regularly and make sure they feel like they are part of the process. This will hopefully reduce their stress levels.
Let the system do its job and rely on your rules for resolving conflicts. In North Carolina that rule is General Rules of Practice for the Superior and District Courts, Rule 3.1. If you have a conflict in two different courts, this Rule allows you to notify opposing counsel, the trial court coordinators, and the judges involved and the judges are supposed to assist in the resolution of the conflict. Courts do not yet have the power to clone us, so something will have to give and you will not have to try two cases at the exact same time.
If you are a trial court coordinator or judge…
Please know that us lawyers know that you need to clear your dockets. We understand that this situation is as stressful for you and your teams as it is for us. Please return the empathy and know that we are not trying to be intentionally obstructionist. Depending on the nature of our respective practices, we are literally scheduled for trial every month from now into 2025. Yes, we understand that this is our chosen profession and we have to deal with this hand that we have been dealt, but also understand that pre-COVID it was unusual to try more than 4 complex civil cases in a year. Now we are anticipating trying 6-8 complex civil cases in a year. This level of stress while we are balancing family and other work obligations, like running our firms, places an unhealthy level of stress on us.
I am openly discussing with every court and every trial court coordinator my concerns about the impact that this backlog is having on the lawyers in our bar. If we are going to have so much focus on lawyer well-being, we have to all take it seriously and understand that this added stress is not good for our well-being. If you see a lawyer who appears to not be managing the stress, pull them aside, lift them up, and if necessary call for help.
For everyone…
Remember how to be professional, empathetic, and human. This is going to be a difficult couple of years, but if we treat one another with respect and take care of ourselves and our teams, we will get through this.