The pandemic has forced stakeholders to grapple with murky legal waters as they try to navigate their way through uncharted territory. This article explores the changes in US litigation brought about by the pandemic and discusses some of the current trends observed as we move forward to 2022. It will also discuss the stakes involved in the legal field, the current legal landscape, and what may come next.
The Technologically-Evolving Legal Professions
The legal profession is changing with new technologies and trends, such as virtual reality or augmented conferencing at client sites via video call on a computer screen instead of meeting face-to-face for court hearings. One of the most notable effects of the pandemic was the merging of work life and home life.
About two-thirds of US lawyers now work remotely, and nearly half telecommute. The nature of this shift has dramatically affected the role that technology plays in the workplace, both for legal professionals and their clients. Technology is no longer just a tool to improve productivity; it is an integral part of how we live our lives.
Law firms have been forced to adopt new technologies at a much faster pace to keep up with their competitors. Clients are also demanding from their attorneys more transparency and accessibility regarding their legal representation. As the market becomes increasingly competitive, we can expect law firms to continue adopting cutting-edge technologies to stay ahead of the curve.
The Art of the Possible: Legal Education Reimagined
Law schools are the poster child of higher education's existential career crisis. Even before Covid-19, the law school business model, pedagogy, culture, faculty composition, market detachment, poor student outcomes, and ever-escalating cost/massive student debt attracted harsh criticism. As a result of the pandemic, law schools are facing more challenges than ever before.
Online learning was resisted by law schools until Covid-19 made it necessary. Technology-enabled, the crisis-created shift from classroom to online learning occurred with remarkable speed, pervasiveness, and seamlessness. The transition revealed technology's latent potential for supporting new models for delivering and consuming legal education and training. Distance learning is just the beginning.
Telework Accommodations in a Law Firm
The Americans with Disabilities Act (ADA) was conceived over twenty years ago, well before many of today's technologies were even imagined. The law is now being called into question as legal professionals are required to telework for longer periods of time due to COVID-related illnesses at their physical workplace.
This is tricky for employers because, before the pandemic, a lawsuit was filed on whether telework as a reasonable accommodation for employees with ADA-covered disabilities. Now with remote work becoming the norm, more and more requests for telework are expected. However, it is hard for employers to determine whether a request for telework as an accommodation would turn out to be reasonable. Employers have to be mindful of any retaliation from the employed sector if they refuse such requests.
Even more, while the Equal Employment Opportunity Commission (EEOC) has identified 'long haul' COVID as ADA-covered, legal disputes arising from the evolving COVID-mutations and their forms shall take shape. More information and research are needed to provide further understanding and aid legislation.
Mandated Vaccines and Employment
An increasing number of employers are mandating their employees to receive vaccines. This trend is likely to continue as more employers become concerned about the potential for an outbreak in their workplace.
In addition to the increased liabilities, employers are also concerned about potential productivity loss if their employees are sick. Some states have already passed legislation that requires vaccinations for business owners and anyone who may come into contact with a vulnerable population.
However, litigants are most likely to continue their position of challenging the legality of vaccine mandates and exemption policies and requests. Courts have ruled that employers can lawfully mandate vaccines so long as exemptions are for approved reasons of religion and disability. Still, future vaccine mandates shall impose conflicts on occupational and safety standards, and interplay with local laws and other guidelines states require to be followed.
The Future of 'Force Majeure' in Contract Clauses
Force Majeure is a contractual clause that relieves a party from its obligation to perform when an unforeseen event or circumstance beyond their control occurs. These can be "acts of God" like earthquakes and include "acts of man" like war, terrorist attacks, strikes, fire, and epidemics.
Force Majeure clauses have been around for centuries, but their application has never been more scrutinized than in the current COVID era. Now that we are more than two years since COVID-19 started, parties to a contract are now in squabbles of whether COVID constitutes a Force Majeure event.
One can no longer argue that the pandemic was unforeseeable with the new normal. Companies and individuals are looking to these clauses as their 'get out of jail free card when it comes to litigation involving damages resulting from the pandemic.
Courts, however, are stricter to enforce these clauses. They are inclined to limit the scope of what is included in a Force Majeure clause and interpret provisions based on the express language of the contract. In short, Force Majeure cannot automatically excuse a party from contractual responsibilities just because it was hindered by a Force Majeure event. One invoking this must demonstrate its existence and that they could not perform their contractual obligation despite reasonable efforts. Consequently, judges will have to consider whether both opposing parties could have foreseen the pandemic at the time of contracting.
As we move forward, businesses and individuals should respect and be mindful of the potential implications of a Force Majeure event on their contract. It is something that must be contemplated in the drafting process, especially given how it has evolved.
Changes to the Jury Selection Process
Jury selection, or voir dire, is a process where both sides in a criminal or civil trial can question potential jurors to see if they are qualified to serve on the jury. This questioning typically happens in person, but the challenge to mitigate the risks of transmission of the virus among trial participants imposes a great challenge at the state and the federal level. Jury selection is one of the most critical steps in any trial, and opposing sides must be given a chance to question. However, while courts have the inherent authority to shorten the voir dire process in their jurisdictions, they may not do away or restrict inquiry, even for compelling reasons like mitigating virus transmissions.
The court is also permitting remote participation for jurors. This arrangement will allow jurors to complete their jury service from the comfort of their own homes, as long as they have an internet connection and a computer. Stringent health screenings and vaccinations are imposed before jurors can complete jury service.
Still, many judges are faced with questions on how they ensure a fair cross-section to ensure an impartial jury representation in the middle of a remote trial. Nonetheless, the trend seems to be leaning towards more extensive use of technology to allow as many people to participate in the justice system as possible.
Virtual Legal Services and Court Proceedings
As the pandemic continues to take its toll, courts are also changing how they carry out proceedings and resolve appeals. With the numerous court closings, restrictions, and re-openings due to COVID, judges have been forced to adopt new procedures to ensure that cases are unduly delayed. Legal services have become highly available online, whether through document review, contract drafting, or other services.
One such change is the adoption of electronic filing and the service of documents. This allows for filings and other court documents to be delivered electronically, thus eliminating the need for paper copies. All employees and non-employees must wear face masks when entering the building, and the presiding judge may authorize the removal of masks as may be deemed necessary. Some courts have allowed fully vaccinated people to enter their premises without masks. Still, with the waning number of COVID cases, courts are gradually resuming live proceedings.
Moving forward, judges are circumspect in their rulings, taking into account the global pandemic and its potential impact on each case. In doing so, they recognize that not every case can be treated in the same manner and that various factors must be considered when making informed decisions.
Presentation of Evidence and 'DNA' Testing
DNA testing has become an increasingly important piece of evidence in criminal proceedings. The collection of biological samples that are potentially exposed to the SARS-CoV-2 virus, even if asymptomatic, is the most pressing concern of crime scene investigators. Despite the use of masks and protective equipment, there is always a risk of infection. Thus, crime scenes have to be always regarded as 'hot zones.' More preparations are needed to take the samples, which results in delays in the criminal justice system.
Remote video testimony is also being used more frequently to minimize the number of people who have to come into contact with the virus. Courts are permitting witnesses to present testimony by video, as well as their attorney and expert witnesses. In addition, the rules also allow the use of deposition testimony when a witness is considered unavailable due to illness. This is commonly used when a witness falls ill, and it becomes difficult to reschedule the deposition and is based on a fact-based inquiry.
As the pandemic continues to exist, we will likely see even more changes in the Federal Rules on Evidence addressing gaps and loopholes not encountered pre-pandemic.
Divorce, Child Custody, and Family Law Cases
The pandemic has also had a significant impact on family law cases.
As the courts closed, judges prioritized emergency cases such as domestic violence restraining orders. "Non-emergency" cases such as regular order modifications take time before hearings are set. Some have also turned to alternative dispute resolutions to resolve conflicts.
Couples who were considering divorce before finding themselves at a standstill. The impact of the coronavirus on housing and careers, coupled with the added stress of a global pandemic, has resulted in many couples deciding to stay together for the time being.
Domestic violence cases have also increased. For example, victims who felt they were in danger before might have to endure more because of the pandemic and its impact on their abuser. Advocates advance platforms and resources to address the needs of victims, and legal services must continually remain available to mitigate drastic effects brought about by violence.
Co-parenting poses unique challenges as one, or both parents are saddled with unexpected burdens due to the virus. While the responsibility rests on both parents, one parent may have to take on greater responsibility due to the other being sick, or succumbing to the virus, or being restricted to travel.
In addition, child custody cases have been affected as well. Parents are responsible for complying with custody orders, but this may prove difficult if they are sick or undergo COVID screening. This has resulted in issues with compliance and the need for arrangements that take into account the possible future changes.
Bankruptcy among Airlines
The decrease in passengers, especially international ones, has resulted in bankruptcy filings across major foreign airlines such as AeroMexico, LATAM Airlines, and Philippine Airlines. Interestingly, these airlines have chosen US bankruptcy courts as their forum for reorganization efforts. With the ongoing pandemic, it will be interesting to see if more airlines file for bankruptcy and choose a US forum to take advantage of the Chapter 11 reorganization process.
Airlines will most likely avail of pre-packaged bankruptcies where the parties agree to a reorganization plan before bankruptcy is filed. This arrangement allows an airline to stabilize its corporation while protecting itself from creditors and other legal challenges that could compromise negotiation or result in a costly lawsuit.
The pandemic will continue to impact the airline industry. The legal field is expected to represent more airline clients and provide consistent and comprehensive legal support as the airline industry slowly picks up amidst the economic downturn.
2022 Onwards
The COVID-19 pandemic continues to have a profound impact on the US legal system, affecting every aspect of American life and exposing gaps in our civil justice system not seen before. As courts gradually resume proceedings, it is expected that there will be new court decisions modifying existing rulings as well as legislative changes taking the pandemic into high consideration.
Existing legal challenges will also gain traction, with the pandemic acting like a game-changer. The legal profession finds itself in a unique position to transition from the rigorous practice of the law, and at the same time, manage to represent the individual interests of their clients. Law students, paralegal, and law professionals alike will be called to serve a wider range of sectors and organizations as the pandemic continues to alter our society. Clients are in a position to demand more comprehensive legal assistants and services, and lawyers are expected to provide zealous representation and provide genuine advice.
The pandemic's impact is felt in every aspect of our lives. The legal system is no exception, and we can expect significant changes in the coming years as courts resume proceedings and new cases come.
