How the pandemic will impact litigation beyond 2021

We will remember Friday, March 13, 2020 as the day the COVID-19 pandemic struck Colorado. Colorado attorneys left their offices that evening oblivious to the pending threat the pandemic posed to litigation as we knew it. Since then, the pandemic has forced attorneys to navigate unprecedented territory not only within their businesses but also for their clients.

In a swift action, COVID-19 forced courtrooms into near stasis, shutting down litigation for more than 10 months and freezing ongoing cases in their tracks. In response to the recent spike in reported COVID-19 cases, most Colorado state and federal courts issued orders vacating all jury trials through early January. These orders will likely extend further into 2021 as cases may continue to rise after the winter holidays. As a result, the pandemic and corresponding court orders have inundated courts with case backlogs and pushed the rescheduled trials into 2022. When courts recommence jury trials, criminal cases will have priority over civil matters. Thus, civil litigants currently have no guarantee of keeping their scheduled trial dates even for trials scheduled as late as 2022.

While the pandemic halted trials and courtroom proceedings, it also pushed Colorado to pass emergency protections against certain debt collection activities and evictions. If the legislature does not extend these federal and state protections into 2021, Coloradans will see a rise in debt collection filings and eviction cases throughout the state. Additionally, once these protections expire, individuals may be responsible for payment of missed rent or otherwise face eviction.

Despite the disruption in the court system, litigants rapidly began adapting and implementing changes in how they litigate cases and these changes will likely remain in 2021. The pandemic forced courts and parties to become more flexible and embrace alternative litigation solutions that will carry into 2021. Like in 2020, litigants should expect a continued increase in virtual options like Zoom and WebEx, which will be used to conduct depositions, mediations, arbitrations, hearings, and bench trials. These virtual options will continue to reduce litigation costs and allow disputes to resolve at a more efficient pace. Given the relative success and increased confidence in these platforms, virtual opportunities will likely continue to some degree post-pandemic.

While 2021 hopes to see a reopening of the courts, there will still be a lack of certainty in confirming trial dates, particularly in the upcoming year. The considerable delay in the courts will likely encourage parties to seek alternative dispute resolutions such as mediations and arbitrations. Litigants may also forgo their right to a jury trial in hopes of getting a quicker and potentially virtual bench trial. Parties can expect to see a higher rate of settlements given the court backlog but may also see a decrease in settlement values due to the parties’ impaired financial situation and inability to pay. Parties may also find more flexibility in payment terms to resolve disputes efficiently.

As of November 2020, litigants have filed more than 6,000 complaints throughout the U.S., with more than 150 complaints filed in Colorado. As of August 2020, litigants filed more than 4,000 COVID-related complaints in more than a dozen jurisdictions, ranging from business-interruption claims to labor and employment claims, among others. Despite the pandemic, litigation has not decreased, and there is no expectation of a decline in 2021. Not only will there be an increase in debt collections, evictions, and COVID-related cases, but there appears to be an increase in litigation as a whole. However, the pandemic has changed how parties litigate and resolve their disputes. Changes that may be here to stay beyond 2021.

 Kelsey R. Bowers and Caleena S. Braig are both associate attorneys in Denver-based law firm Moye White LLP’s Litigation Section. They can be reached at [email protected] and [email protected], respectively.