Contemplating Litigation Alternatives During a Pandemic

April 5, 2020Dispute Resolution Roundtable

With the Coronavirus pandemic, the entire world is suffering tremendous personal and economic stress and harm. Many are not only experiencing a form of grief for the impact on their lives, they are also grievants. As they sit at home, many people are contemplating taking action concerning the jobs they have lost, the services which they purchased but are not being provided, and for those who are unfortunately ill, the cause of their sickness. As with other mass injuries, the lawyers are ready and willing to step in. We are already seeing suits filed against a wide variety of defendants, from cruise lines, to gyms, to banks, to consumer product manufacturers.

While they are sitting in their remote locations, in addition to drafting complaints on their laptops, now is a good time for lawyers to brush up on their skills in utilizing alternatives to litigation, such as arbitration, and mediating settlements. Many courts have limited access, and countless lawsuits have been put on hold during the pandemic crisis. The last thing our overburdened court system needs is an influx of mass COVID-19 class actions, and legal battles in which the only winners may be the lawyers.

In order to achieve the least costly resolution of legal disputes, lawyers must encourage their clients to seek alternatives to litigation, through mediations and arbitrations (which can be done virtually on-line), rather than trying to get in the courthouse (after it has been sanitized).

In my 40 years of practice as a litigator, I have found that the reactions of litigants mirror those explored in depth by Elisabeth Kübler-Ross in her book, On Death and Dying. Ms. Kübler-Ross introduced the "Five Stages of Grief". Those stages are known by the acronym DABDA -- Denial; Anger; Bargaining; Depression; and finally, Acceptance. I have found that my clients tend to pass through the five stages as well as they journey through the litigation landscape. We know that, for better or worse, in the vast majority of cases the final stage is acceptance, or settlement.

Attorneys often have a hard time both doing battle and trying to settle at the same time. The failure to discuss an early resolution can lead to increased litigation, and unrealistic expectations. Too much time may be spent at the denial/anger and bargaining stages. Precious time and dollars will be lost before depression and acceptance set in, and a settlement is ultimately reached.

Armed with that knowledge, for years I have been advocating that counsel should be able to do a better job guiding their clients through these stages, and reaching a resolution more quickly and efficiently. Unfortunately, too many attorneys and their clients fixate on two of the early stages of the client's reaction to a lawsuit -- denial or anger. They do so almost instinctively, without evaluating the final stage -- acceptance -- at the commencement of the engagement. Studies have shown that accepting a pre-trial settlement offers may well result in a better financial outcome than proceeding to trial.

While we are being encouraged to wash our hands frequently, we need not wash our hands of drawn out litigation gamesmanship. A hard- fought litigation may be just what the doctor ordered. But, in addition to prescribing a strong prosecution or defense, it is necessary and ethically required that attorneys evaluate all alternate courses of action at the very outset of the litigation, and if appropriate, prepare the client (especially one who is a litigation novice) for the fact that settlement, like death, may be the inevitable outcome. The only question will be: Now or later? At the very least, lawyers should spend the time educating clients about alternatives to burdening the stressed court system with the client's claims.

Lawyers will be doing their clients, and the greater public, a real service if they vigorously pursue alternatives to litigations. When the storm passes, our courts will have plenty to do without having to process hundreds of thousands of lawsuits which will last far longer than the pandemic, and inflict continued pain on the litigants.

This article appeared in the April 5, 2019 publication of Dispute Resolution Roundtable.