COVID-19 and Alternatives to the Civil Jury Trial

Dunlap Bennett & Ludwig PLLC

In many jurisdictions, now that guidelines for social distancing and wearing masks are better understood, trial courts remain open to receive new cases. In the Circuit Courts of Maryland and Virginia, plaintiffs and defendants are filing motions, conducting discovery, and preparing for trial. There is just one little catch, in many jurisdictions, civil jury trials that may have already been pending for years are not likely to occur until sometime in 2022. Parties become concerned that their evidence may go stale, memories fade, and witnesses move away, but the case is still open, and justice has not been done. If you need assistance with the litigation process, hiring an experienced attorney can be beneficial in navigating the road ahead.

What tools do attorneys have to resolve matters instead of waiting out a global pandemic? One popular answer is to attempt settlement through mediation. Plaintiff and defendant sit down with a neutral third-party who is able to look at the problem with a fresh set of eyes. They can see issues and problems that are difficult to see when you are committed to advocating for a certain position. The process takes away the uncertainty of trial, and while one may not like the result, the hope is to understand the inherent value of voluntarily resolving the dispute.

Arbitration is also increasingly popular. Though not every case is well suited for arbitration, the proceedings are as similar to a real trial as one can find without waiting for the Courts to reopen. There are also creative ways to approach arbitration. Since the discovery rules in arbitration can be altered with greater ease, the parties may elect to go forward with an informal or shortened discovery process. This can cut down on costs and some of the abusive tricks attorneys employ in the ordinary discovery process.

Other times, the use of a “high-lo agreement” can increase the usefulness of arbitration. “High-lo” agreements usually exist outside of the knowledge of the arbitrator. The parties agree that, no matter what the arbitration award comes out as, the defendant shall have a minimum and maximum exposure. For example, in a commercial dispute over $100,000 in damages with a high-lo agreement of $30,000 to $60,000, an award of $10,000 still will net a plaintiff $30,000, whereas a total victory will only expose the defendant to $60,000 in damages. Parties may also elect to resolve their disputes through an outside, neutral case evaluation.

An even more outside-the-box solution is to conduct a mock jury trial. Several companies exist that help to organize simulated jury trials. The parties are then able to help evaluate, arbitrate, or otherwise resolve their dispute. A trusted attorney can help guide you through the litigation process. The expert team of attorneys at Dunlap Bennett & Ludwig are ready to advocate for you in this journey.

Of course, everyone waiting for a jury trial while COVID rages certainly considers whether they should simply ask to have a judge hear the case instead. There is no easy answer to the question of whether or not a jury trial is the right choice. Attorneys may feel the issues in the case are great for a jury to hear, but some of the problems with the continued COVID-related delays may become increasingly difficult to ignore.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Dunlap Bennett & Ludwig PLLC

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