Litigation During the Coronavirus

The chart found at the end of this article sets out the current status of events in these courts.  Specific orders may be found as follows[1]:

• New Hampshire state: https://www.courts.state.nh.us/aoc/corona-covid-19.html
• New Hampshire federal: http://www.nhd.uscourts.gov/court-response-coronavirus-disease-covid-19
• Massachusetts state: https://www.mass.gov/guides/court-system-response-to-covid-19#-supreme-judicial-court-orders-
• Massachusetts federal: http://www.mad.uscourts.gov/

Trial practice during the pandemic and stay-at-home orders

The COVID-19 pandemic has postponed active trial practice inside our courthouses, except where hearings are scheduled by the courts for emergency reasons.  As shown on the chart, state and federal courts have postponed nearly all trials, and particularly jury trials, since they are unable to bring groups of people into the courthouses.  While most trials have been postponed, and many deadlines have been extended, other aspects of trial practice have continued in the same manner as before the pandemic closed the courts.

McLane Middleton’s trial lawyers have continued to file motions, and to take or defend depositions either by Zoom or other video practices.  Video and telephonic hearings are taking place on a regular basis, and are expected to increase.  Supreme Court briefings have continued without change, although oral arguments are being conducted by video.

There are some considerations to keep in mind while trial practice is largely virtual.  First, where hearings require witness testimony, clients and lawyers will want to weigh whether to postpone video hearings to a date when the courthouses are holding in-person proceedings.  Presenting documents to witnesses, evaluating witness demeanor, and observing the reaction of all parties (including the judge) is more difficult in a video presentation.  Second, in video hearings without witnesses, attorneys will need to work carefully with clients to ensure that the technology will allow for an appropriate presentation.  This requires careful planning and practice.  Third, it may be more difficult to obtain injunctive relief in an environment where the virus appears to be the primary extraordinary event.  Thus, careful consideration should be given to whether a demonstration of irreparable harm may be shown, and whether the court will be able to give the matter immediate attention.  Fourth, where a jury trial has been requested, it is likely that the trial will be postponed for an extended period of time.  All jury trials scheduled since March have been postponed, and it is expected that once jury panels become available, postponed matters and criminal proceedings will have priority.  Finally, the court changes due to COVID-19 will put additional pressure on efforts to advance litigated matters and may cause both plaintiffs and defendants to resolve cases through the use of mediation, arbitration, or other means, in light of anticipated delays.

McLane Middleton’s Litigation Department has been monitoring and responding to these developments, studying and adopting to changes in technology, and continuing to advance cases during the pandemic.  Those in litigation or considering initiating litigation need to be aware of some of these adjustments in a COVID-19 world.  More information can be found on our Business Recovery page at www.mclane.com.