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The Backlog of Cases in the Legal Industry Due To Covid-19

by Shrisha Sapkota

case management software, practice management software, legal accounting software, legaltech, technology for lawyers, case management, immigration, london, united kingdom

Introduction

Covid-19 forced courtrooms into near stasis, shutting down litigation and freezing ongoing cases where they stood.[1] The judicial system faced unprecedented challenges as it was required to quickly adapt to an ever-evolving virus, new health mandates, and court closures, all while ensuring that litigants had access to the court system.[2]

There was a time when we all thought this would be over in a matter of months: a brief stint at home followed by a quick return to our ‘normal’ lives. Oh, how little we knew.[3] Covid-19 has had a dramatic impact on work practices across every industry, and law is no exception.[4] This crisis has redrawn the way the legal profession works.[5] Many law firms were forced to send their attorneys home to quarantine, and lawyers had to contend with setting up their offices at home while continuing to maintain a work-life balance in a remote setting[6]. But after a year and a half, the legal community has embraced many of the pandemic-driven changes[7]. Eventually, some litigation transferred the virtual procedures to litigation softwares, but the inherent challenge of arguing a case within a digital platform presents its own challenges.[8] More than a year and a half later, the Covid-19 pandemic still rumbles on. Granted, lives aren’t affected to the same extent as in those dire lockdown months, but the pandemic has profoundly reshaped life as we know it, with many effects still being felt by law firms and their practices.[9]

Effects on litigation

Courts around the world had put Covid-19 restrictions in place limiting the timing of trials, the number of attorneys and members of the public who can be in attendance, and, critically, how jury selection takes place.[10] Jury operations are fundamentally a matter of inventory control to ensure an adequate supply of prospective jurors to meet the demand for jury trials.[11] Jury trials are usually done in intimate settings. As a result, some citizens have refused to participate as jurors during the pandemic due to the risk of exposure to those who may be ill.[12] So, either courts will have a smaller pool of prospective jurors to select from or they will have to conduct jury trials more times than they did before to select suitable jury members. This takes more time and since courts are busy selecting jury members, more and more trials will ultimately end up in the backlog.

As courts figure out how to tackle this gargantuan problem, lawyers are left to preach patience to clients who are becoming increasingly frustrated with the sluggish pace of their cases.[13] The resumption of in-person jury trials and other proceedings in courts recently is welcome news for litigators, judges and administrators, but after more than a year of severely hampered court operations, unprecedented backlogs await many of them.[14]

Another thing the Covid-19 pandemic has brought about in the legal sector is the unpredictability of cases. This uncertainty leads to questions like: When will the matter be heard by a jury? Will the case be decided by an in-person or a virtual jury? Who will be on the jury that decides the case? How will the format of the presentation help or hurt the case in front of a jury? How will masks, distancing, and other pandemic-induced practices affect the presentation of the case to the jury or the jury’s trust in the attorneys?[15] And this makes litigation – which is a field that is not predictable by itself – more unpredictable.

This increased uncertainty often motivates parties to search for alternate paths to resolving disputes. For this reason, the pandemic has, and will probably continue to have, an impact on the prospect of parties reaching out-of-court settlements.[16]

The nature of litigation and the practicality of working in this area continue to be affected in other forms too. Unfulfilled contract obligations is another major crisis that is being brought to the surface because of the Covid-19 pandemic.

Where there is a challenge, however, there is also opportunity. Judges, court staff, and attorneys have risen to the occasion, finding new and innovative ways to keep the daily operations of civil and criminal court moving.[17] In an industry better known for honouring traditional working practices, relocating inner-City offices into the homes of tens or hundreds of employees was previously unthinkable for many law firms, and even more so for the Bar. Now, home working and virtual meetings and using software for law characterise the contemporary legal landscape.[18] Attorneys had to adjust to video meetings with clients and work with co-workers on projects without the ease of being in the same office[19]. In addition to these challenges, people often had to work with the presence of their families[20].

In this “new normal”, courts used short and long term solutions to ensure that the public has continuous access to the justice system, while also reducing the danger to public health and maintaining safety.[21] Some courts have offered, and in some instances imposed, a virtual format for trials.[22] In many places, judges, attorneys, and court staff immediately brainstormed ways to bring the courtroom into a virtual environment using audio or video technology to facilitate a hearing without all the participants being physically gathered in one location. [23]

The shift to virtual depositions and more telephonic conferences and hearings will certainly continue with the pandemic. Many in the legal industry expect some of these changes to last beyond the pandemic, suggesting that it merely accelerated the adoption of these lower-cost, technological solutions.[24] But what are the long-term implications of such developments and which of these changes might be here to stay?[25]

Even in the best of times, the nation’s courts consistently battle case backlogs for a variety of reasons. If a public health crisis is added into that equation, it is easy to see why the backlog situation may become much more difficult to manage.[26] As court backlogs continue to grow, everyone is looking for ways to expedite the legal process while maintaining the sanctity of the court.[27] Many technologies and legal software tools are being touted as ‘silver bullets’ to help the corporate world and the public sector get back to normal functionality. The need to reevaluate how courts can increase efficiency has become more and more critical.[28]

Virtual courts are the way to transform the physical process of documentation and hearings digitally from start to finish.[29] One of the primary challenges in a virtual court environment is related to collaboration and managing documents — sharing evidence, accessing evidence and multimedia files, organising all evidence, and communicating on annotations on evidence.[30] Virtual courts can compromise the privacy and confidentiality of data.[31] While this is a serious problem in a civil case, it can be a detrimental, constitutional violation in a criminal case.[32]

The outcome of a case is determined by the judge and jury applying both the facts and the law.[33] Both the lawyer and the accused, along with his evidence, must be present in court before the magistrate.[34] The judge decides what the applicable law is for any given case, but it is up to the parties to discover and present the underlying facts to the court.[35] Due to the apparent continuity, there may be possibility of the witness being tampered with, as witness may be found in video conferencing along with his counsel, and thus counsel may coerce witness so that it will acquit them.[36]

During the discovery stage of the case, parties may serve subpoenas on witnesses for evidence that may be relevant to the case.[37] Usually, lawyers congregate in conference spaces and interrogate the witness. They also review (the recorded) testimonies of witnesses.

Lawyers have to travel domestically or internationally for dispositions based on where the relevant witness lives. But Covid-19 made this impossible.[38] So now, lawyers have moved to using virtual platforms for the dispositions. Taking depositions via Zoom or similar platforms has meant lawyers and witnesses spend far less time travelling for these depositions, which has lowered the cost of conducting depositions.[39]

Additionally, although the final presentation in a case may be a trial, there are often numerous hearings and conferences between the parties and the judge throughout the case, as the judge resolves a variety of issues leading up to trial. This shifted online due to the pandemic.[40] hearings were done via video or phone conferencing. Use of litigation law software here lowered the cost of litigation, as it reduced travel time for attorneys to make these various in-court appearances.[41] But these measures weren’t easy or as efficient as doing all of this in person.

The technologies focusing on content services, collaboration tools, better virtual meeting spaces and smarter recording stand out as critical. If a legal firm wants to streamline processes, then getting everyone on the same page is a fundamental starting point.[42] New legal technology helps judges and law clerks quickly analyse and review multiple documents from a single matter. This can reduce the time the courts—as well as attorneys—need to pore over legal briefs and documents.[43]

Certain legal technology softwares will help reduce the average waiting period for trials and hearings too.[44] By decreasing the amount of time it takes to manually check citations and quotations across multiple filings, courts can review documents at a speed not previously possible. This type of dramatic time-saving resolution will be key.[45] The processes will be made more efficient through improved collaboration and better access to notes, documents and images. Automated recordings of interrogations, briefings and trials can be fed into a content stream to create a 360° view of all available information.[46]

Use of Artificial Intelligence:

Artificial intelligence is no longer a science fiction pipe dream and we have the potential to increase business efficiency for both law firms and their clients by using AI in the legal sector.[47] AI tools for lawyers can be used to capture and transcribe virtual meetings regardless of the number of people involved – including meetings taking place in an actual courtroom setting. Governance over recordings and transcripts is much tighter than the traditional ‘paper trail’ given the fully audited digital lineage of access; that is, a record of the time, date and the individual involved is made in the metadata anytime these files are accessed.[48] One of the biggest potential advantages of AI in the legal profession is its ability to quickly and efficiently complete the menial tasks[49] which is very advantageous in this case. A content services solution can then be applied to store files securely either in the cloud or in a data centre on-premises. Individuals who have authority to access these records can use their digital credentials to access files instantly regardless of whether they are in professional offices or working from home offices.[50] This is how AI and law can work together to benefit courts, law firms and lawyers.

There are various tools for law available that can speed up both courtroom proceedings and the internal workings of the legal profession. Digital transformation has been taking place for years, but the stage is now set for legal organisations and courts to optimise their systems using the latest and best legal technologies.[51] There have been positives in that some of the practices and decisions that have been forced upon law firms through this crisis are decisions that should have potentially been made in any case. Many firms have demonstrated their agility in adapting to a new unprecedented normal and the law firms that still remain when this is over will be leaner, more efficient and well equipped to deal with clients from any location in a profitable way.[52]

By studying how technology worked well—or did not—during the Covid-19 pandemic, courts can better understand their effects on litigants, especially those without lawyers, and undertake improvements to help settle disputes and avoid life-altering consequences.[53] As a sector, we must hope for the best and that we can return in full health to some semblance of normality as soon as possible, but unfortunately we all must monitor, measure and plan for the worst case scenario.[54] Technology has the potential to substantially improve the civil legal system. Digital tools helped courts remain operational during the public health emergency and are poised to become permanent fixtures of the legal system.[55]

We all hope that we really are in the final stages of the coronavirus pandemic, but its effects will remain for the long term.[56] It is clear that the way we work and operate will have changed forever. Combining the sanctity, formality, and traditions of the court system with evolving legal technology will make courts an even more powerful representation of justice.[57] Looking to the future, as people have begun to settle into their ‘new normal’ lives, so have businesses and legal service providers.[58]

References

 

[1] https://glginsights.com/articles/survey-the-impact-of-covid-19-on-litigation/

[2]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[3][3]https://www.chambersstudent.co.uk/where-to-start/commercial-awareness-info/covid-19-and-legal-practice-areas

[4]https://www.ashurst.com/en/innovation/ashurst-advance/assessing-the-impact-of-covid-19-on-legal-operations/

[5] https://www.chambersstudent.co.uk/where-to-start/trends-affecting-the-legal-profession

[6]https://www.forbes.com/sites/forbesbusinesscouncil/2021/11/08/the-effects-of-the-pandemic-on-the-legal-industry/

[7]https://www.forbes.com/sites/forbesbusinesscouncil/2021/11/08/the-effects-of-the-pandemic-on-the-legal-industry/

[8]  https://glginsights.com/articles/survey-the-impact-of-covid-19-on-litigation/

[9]https://www.chambersstudent.co.uk/where-to-start/commercial-awareness-info/covid-19-and-legal-practice-areas

[10]https://www.americanbar.org/groups/litigation/committees/commercial-business/articles/2021/jury-trials-during-covid-19-pandemic//

[11] https://www.ncsc-jurystudies.org/__data/assets/pdf_file/0023/8438/juries-covid-19-webinar.pdf

[12]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[13]https://www.law.com/2021/05/20/law-com-litigation-trendspotter-amid-post-covid-comebacks-courts-contend-with-brutal-backlogs-and-lawyers-deal-with-demoralizing-delays/?slreturn=20220305122432

[14]https://www.law.com/2021/05/20/law-com-litigation-trendspotter-amid-post-covid-comebacks-courts-contend-with-brutal-backlogs-and-lawyers-deal-with-demoralizing-delays/?slreturn=20220305122432

[15]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[16]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[17]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[18] https://www.chambersstudent.co.uk/where-to-start/trends-affecting-the-legal-profession

[19] https://www.forbes.com/sites/forbesbusinesscouncil/2021/11/08/the-effects-of-the-pandemic-on-the-legal-industry/

[20] https://www.forbes.com/sites/forbesbusinesscouncil/2021/11/08/the-effects-of-the-pandemic-on-the-legal-industry/

[21]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[22]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[23]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[24]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[25]https://www.ashurst.com/en/innovation/ashurst-advance/assessing-the-impact-of-covid-19-on-legal-operations/

[26]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[27] https://legal.thomsonreuters.com/en/insights/articles/backlog-reshape-future-courts

[28] https://legal.thomsonreuters.com/en/insights/articles/backlog-reshape-future-courts

[29]https://blog.ipleaders.in/challenges-posed-by-the-covid-19-pandemic-in-the-virtual-justice-delivery-system/

[30]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[31]https://blog.ipleaders.in/challenges-posed-by-the-covid-19-pandemic-in-the-virtual-justice-delivery-system/

[32]https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-papers/covid-court-report_final.pdf

[33]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[34]https://www.lawinsider.in/columns/what-challenges-were-faced-due-to-virtual-hearings-in-the-pandemic

[35]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[36]https://www.lawinsider.in/columns/what-challenges-were-faced-due-to-virtual-hearings-in-the-pandemic

[37]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[38] https://sciencenews.dk/en/unusual-suspects-can-help-to-solve-major-global-challenges

[39]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[40]https://poetsandquants.com/business-school-news/live-updates-covid-19-impact-on-b-schools/?pq-category=business-school-news

[41]https://www.schwabe.com/newsroom-publications-three-ways-the-pandemic-is-impacting-litigation-costs

[42] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[43] https://legal.thomsonreuters.com/en/insights/articles/backlog-reshape-future-courts

[44] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[45] https://legal.thomsonreuters.com/en/insights/articles/backlog-reshape-future-courts

[46] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[47] https://www.chambersstudent.co.uk/where-to-start/trends-affecting-the-legal-profession

[48] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[49] https://www.chambersstudent.co.uk/where-to-start/trends-affecting-the-legal-profession

[50] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[51] https://itbrief.com.au/story/how-modern-technology-can-help-reduce-backlogs-in-the-judicial-system

[52]https://www.armstrongwatson.co.uk/services/covid-19-and-your-business/impact-covid-19-legal-sector

[53]https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations

[54]https://www.armstrongwatson.co.uk/services/covid-19-and-your-business/impact-covid-19-legal-sector

[55]https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations

[56]https://www.armstrongwatson.co.uk/services/covid-19-and-your-business/impact-covid-19-legal-sector

[57] https://legal.thomsonreuters.com/en/insights/articles/backlog-reshape-future-courts

[58]https://www.armstrongwatson.co.uk/services/covid-19-and-your-business/impact-covid-19-legal-sector