COVID 19 and Civil Litigation: What Is a Litigator To Do?

For the civil practitioner who relies on jury trials this can be a disconcerting time. The civil courts in North Carolina civil courts are closed and it is unclear as to when and in what form jury trials will return. Many of us are hoping for some measure of re-opening in June but that remains to be seen. In the meantime, cases must continue and there are more cases to be filed. So what is the civil practitioner to do?

One thing to do is to look at each of your civil cases and consider how best to bring them to resolution without a jury trial, if possible. Mediation remains an option in many cases be it court-ordered or voluntary. Arbitration may be in your future.  I recognize, however, that some cases will only be resolved after you have your day(s) in court in front of a jury. Here are some tips you can apply to each of your civil cases:

Review or create a case management plan. Hopefully you have a plan in each of your cases but if not now is the time to do so. And note that having a discovery scheduling order or case management order required by the court is not the same as having a case management plan. A good case management plan is one in which the lawyer has contemplated each claim or defense in the case and how they plan to go about proving such. The plan also takes into account any potential witnesses and evidence and even key cases and statutes that apply.

Finally there must be some thought given to potential damages or liability for your client.

One structured approach that I created and I highly recommend in developing your case management plan is the CASED chart.

CASED is an acronym:
C-Cause of Action (or claim or defense)
A-Analysis
S-Statutes (or codes or case authority)
E-Evidence (documents, witnesses, tangible things, etc.)
D-Damages (or liability exposure)

At the end of this article is a sample CASED chart in a case involving a vehicle dealer’s failure to disclose prior vehicle damage to a consumer. The CASED chart is a mere beginning template and you can create one that is more or less sophisticated but the key is that creating a chart forces you to think through your case and write out or type out how you plan to prove your case. what witnesses do you plan on having testify? Will all of their testimony be admissible? Is some of your testimony hearsay and if so what exceptions do you propose would allow the testimony to be admissible? What documents do you need to prove your case and will they be admissible under the relevant rules of evidence and procedure? How do you calculate the damages in your case? What statutes or cases support your defense? What contrary legal authority are you aware of that your opponent may use against you and your case? these are just a few of the many questions that should arise as you put together your CASED chart.

It is best to create this chart before a suit is filed. And the kitchen sink approach to filing a civil action is rarely the best. At the end of the day, the more claims that you make translates into more you have to prove and you could be making more work for yourself at the end of the day.

Utilize discovery to your advantage.  Discovery helps you build on the E and D and further develop the A in your CASED chart. Discovery encompasses interrogatories and request for production and request for admissions and depositions. All of those can still be conducted at the current time although depositions will require the aid of technology in most cases. Check your local rules for specific provisions relating to depositions to ensure that having remote or online depositions will work for you. And in most cases if opposing counsel consent you can often conduct discovery in ways that are easier and more manageable than set out in the black letter rules.

Perhaps the most underutilized discovery tool is the Rule 36 requests for admissions. While most people think of them as being primarily helpful in contract cases, there are many other types of cases in which they can be fruitful. As a consumer lawyer I use request for admissions frequently to pin down the author of a document or the custodian of a document or the creators of information depicted on documents. Not to mention there are many fundamental names, dates, events, and other key facts that you can pin down by use of Rule 36.

Request for admissions are a mere tool and it is up to the practitioner to think about his or her case and how to use them and the various other discovery tools to best meet the objectives of the case management plan. Discovery helps you learn more about your case, good and bad, and should sharpen your strategies for handling the case going forward.

Consider arbitration. First and foremost, I am against the common practice of arbitration clauses being inserted in virtually every contract and agreement that we sign. Further, it is disappointing that the United States Supreme Court and many other courts across the country readily enforce arbitration provisions thereby robbing litigants of their day in court. But, this being said, if you have a case that will be arbitrated you should accept it, embrace it, and prepare.

From the Plaintiff’s perspective, arbitration is not always bad. There are ways to increase the cost to the defense of the arbitration proceeding which can sometimes leverage the case for settlement. Most arbitration provisions provide the litigants and their attorneys an opportunity to select who will decide the case. The relevant rules of procedure for arbitration can be less cumbersome and more cost-effective for the parties and often you may get a final disposition sooner than if you were on a trial calendar. In arbitration you should have even greater latitude to communicate with opposing counsel and come up with a road map for litigating the case that better benefits you, your client, your schedule, and your finances.

You should prepare your arbitration case seriously and vigorously as you are required to under the ethics rules and as you would do if your case was in court. Arbitration is not a time to slack off but just a different forum for getting an eventual outcome in your case. For consumer practitioners, the National Association of Consumer Advocates has an amazing array of materials and resources about arbitration and if you are not a member already you should seriously consider joining. For non-consumer lawyers or defense attorneys you should seek materials and material assistance from national organizations such as the AAJ, ABA, DRI or state organizations (ex: NCAJ, NCBA for North Carolina lawyers).

In sum, the time that we have been given by the court closure and other disruptions of daily life can be utilized to our advantage. The key is being strategic and intentional as to determining how to utilize this time. Hopefully this brief article provided you with some food for thought as you determine how best to proceed with your civil case until litigation and life as we know it gets back to some further sense of normalcy. Continue to be healthy and safe out there.

John O’Neal practices in Greensboro. Reach him at 336-510-7904 or via www.oneallawoffice.com

CASED Chart