I. INTRODUCTION
Many civil lawyers like myself have seen discoveries, mediations, court motions, pre-trials and trials cancelled due to the effect of the Covid19 crisis. Most calls with the Court and with one another discuss rescheduling cases in June "once the crisis is over".
While a defensive course of action is entirely understandable, and reasonable in the near term, one wonders if we should be charging forwards with innovation, in parallel, to keep the wheels of justice turning and to be sure that they keep doing so in the event that this crisis lasts longer than we expect.
While the law must be responsive to coronavirus and take measures to prevent its deadly spread, we can and should take steps to stop it from seriously impeding the law itself. I believe that there are relatively painless steps that we could take now to make that happen.
II. WE NEED TO PLAN FOR THE POSSIBILITY OF A LONGER EFFECT
I do not want to be an alarmist, but there is a recently released report from London's Imperial College (https://www.imperial.ac.uk/mrc-global-infectious-disease-analysis/news--wuhan-coronavirus/) that leads me to believe that we should consider planning for the possibility of an extended impact from this disease. Maybe they are wrong and this crisis will, mercifully, be short lived, but I think that we are past the point where it is unreasonable to have a contingency plan in place for a more extended impact. I believe that it is sensible to consider putting some measures in place to protect our clients and to ensure that the system proceeds regardless.
An excerpt from the London Imperial College report includes the following:
"The global impact of COVID-19 has been profound, and the public health threat it represents is the most serious seen in a respiratory virus since the 1918 H1N1 influenza pandemic....We conclude that the effectiveness of any one intervention in isolation is likely to be limited, requiring multiple interventions to be combined to have a substantial impact on transmission.
Two fundamental strategies are possible: (a) mitigation, which focuses on slowing but not necessarily stopping epidemic spread – reducing peak healthcare demand while protecting those most at risk of severe disease from infection, and (b) suppression, which aims to reverse epidemic growth, reducing case numbers to low levels and maintaining that situation indefinitely. Each policy has major challenges. We find that that optimal mitigation policies (combining home isolation of suspect cases, home quarantine of those living in the same household as suspect cases, and social distancing of the elderly and others at most risk of severe disease) might reduce peak healthcare demand by 2/3 and deaths by half. However, the resulting mitigated epidemic would still likely result in hundreds of thousands of deaths and health systems (most notably intensive care units) being overwhelmed many times over. For countries able to achieve it, this leaves suppression as the preferred policy option.
We show that in the UK and US context, suppression will minimally require a combination of social distancing of the entire population, home isolation of cases and household quarantine of their family members. This may need to be supplemented by school and university closures, though it should be recognised that such closures may have negative impacts on health systems due to increased absenteeism. The major challenge of suppression is that this type of intensive intervention package – or something equivalently effective at reducing transmission – will need to be maintained until a vaccine becomes available (potentially 18 months or more) – given that we predict that transmission will quickly rebound if interventions are relaxed. We show that intermittent social distancing – triggered by trends in disease surveillance – may allow interventions to be relaxed temporarily in relative short time windows, but measures will need to be reintroduced if or when case numbers rebound. Last, while experience in China and now South Korea show that suppression is possible in the short term, it remains to be seen whether it is possible long-term, and whether the social and economic costs of the interventions adopted thus far can be reduced.”
My respectful submission is that the upshot from all of this is that hunkering down and waiting, is not, by itself, the optimal course of action. Rather than waiting at a stand-still, we should "wait at a fast jog", and then return to full tilt running once circumstances permit.
III. WHAT CAN WE DO?
Some measures that I am exploring as a contingency plan in the face of all of this (I would welcome emails with any comments or suggestions about what others in the profession are planning):
(1) Asking clients and defence counsel to agree not to delay discoveries/mediations etc, but instead to proceed with all of them by video-conference
(2) Asking Courts if they will agree not to delay scheduled pre-trials, motions, trials in the event that this is a longer term effect or if the need for social isolation waxes and wanes. Instead, I would be asking them to proceed by video-conference to avoid delaying/denying litigants their day in court and potentially overwhelming the court system later due to systemic delay (trials would almost certainly need to proceed on a non-jury basis in a video-conference scenario).
(3) Encouraging “the powers that be” to accept electronic signatures on retainers, settlement documents etc.
(4) Pushing for electronic fund transfers where possible from insurers and to clients/others
(5) Asking Counsel and clients to adhere to electronic document transfers, without paper being sent by mail
With our current technological capabilities we likely don’t need anything to stop or slow down at all to maintain our system and our practices. A change in mind-set by Counsel and Courts would allow the system to continue and avoid a potentially severe delay on litigants and the system in general.