COVID-19 Update: Litigation

by James Parker

Along with the rest of the Firm (and much of the world) the Litigation Practice Group (“LPG”) is working from home. But aside from the surroundings, little has changed. Courts are still operating. And, in fact, the anecdotal evidence is that they may even be functioning more efficiently.

Some thoughts:

Lloyd Gosselink lawyers and staff are still working for our clients: As you may know, the LPG has been essentially paperless for some years. Our staff, Karen Mallios and Cathy Daniels, are working from home with exactly the same technological set-ups that they have at the office. And as under normal circumstances, they remain critical to the smooth functioning of the (virtual) office.

Because Texas courts have mandated electronic filing for more than a year, we are able to file documents with the courts and receive filings from other lawyers. That aspect of our practice has not changed.

Moreover, discovery has been computerized for some years through our document-review platform, Logikcull. That platform allows us to review electronically large volumes of discovery documents much more efficiently than we used to be able to review paper documents.

The main change to our daily practice is that meetings between attorneys have switched from walking down the hall to FaceTime or Zoom video conferences. But the team-focused collaboration that we bring to case management and the development of litigation strategies has not changed.

The primary changes in the function of the LPG are in dealings with the courts:

The Supreme Court of Texas has limited all civil hearings: Under the Supreme Court’s March 19 Third Emergency Order, Texas courts may not conduct non-essential proceedings in person contrary to local, state, or national directives. In our experience, that means that virtually all civil hearings are being conducted remotely.

Some hearings are proceeding: Civil hearings are still being conducted remotely, either by telephone conference or by Zoom meeting. But remote hearings often take longer than in-person hearings, so fewer are being scheduled by the courts.

Our experience with remote hearings: Telephone hearings are not preferred under the best of circumstances. As with other telephonic meetings, it is challenging to pick up on non-verbal cues from the judge, and people often talk over one another.

Happily, we have the technology to participate in video hearings (through Zoom or other platforms). We have seen that these generally go more smoothly than audio-only hearings. But not all counties have that technology available.

Courts are still receiving motions and briefs: Deadlines for motions and briefs remain in place. And in particular, the United States Court of Appeals for the Fifth Circuit remains as unwilling to grant long extensions as it is under normal circumstances. With hearings restricted, more courts are willing to consider motions solely on the briefing. This has perhaps led to an unexpected side-effect of the current emergency:

Court consideration may be expedited: Anecdotal evidence indicates that courts may be reaching decisions faster than they usually do.

With the federal courts, that is largely attributable to the fact that almost all criminal hearings have been canceled. Criminal hearings take up an enormous amount of a federal district judge’s time. And without them, the federal district judges have been able to focus more time on issuing orders on pending motions in civil cases.

State courts outside the largest urban counties have a similar dynamic. With fewer criminal and family-law hearings, they are able to spend more time on their civil dockets. The courts’ consideration of motions in civil cases is accelerated by the courts’ newfound willingness to consider motions only on the briefing, rather than having a hearing.

So don’t be surprised if you get a decision in a case significantly faster than what we may have previously estimated. If anything, litigation is speeding up. The courts are still open, the wheels of justice keep turning, and the judges and attorneys who work inthe courts have already adapted to new practices and procedures to keep things that way.

This summary was prepared by James Parker, a Principal, for the Firm’s Litigation Practice Group. If you would like additional information or have questions related to this article or other matters, please contact James at 512.322.5878 or jparker@lglawfirm.com.