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Silver linings provide optimistic future for litigation post-pandemic

Like most of America, Colorado courts have reopened throughout 2021 as the COVID-19 vaccine rolled out. This reopening comes after courts were forced to shut down or become remote.  

Many court functions that are more judiciously and efficiently conducted in person, like jury trials and complex hearings, are resuming, but some practices forced on courts in 2020 are likely here to stay. Remote practices have allowed courts, lawyers, litigants, and the public to gain more efficient access to justice.

As a result, Colorado can expect to see some courts continue with a hybrid in-person/remote model for certain functions in hopes of sifting through the case backlog the pandemic caused and providing cost-efficient resolution where in-person proceedings may be otherwise unnecessary.  

Many judges and attorneys recognize the utility of remote hearings including routine case management and status conferences, and certain discovery dispute and evidentiary hearings. Some courts may continue to allow certain witnesses to testify remotely at hearings and trial. Holding certain proceedings virtually may become a mainstay in courts, particularly those courts located in more remote areas of Colorado where access for litigants may prevent some administrations of justice.  

Similarly, holding appropriate proceedings virtually reduces the necessity of travel leading to more cost-efficient litigation. Certainly, as winter approaches and inclement weather threatens to impede travel, the option to hold proceedings remotely will be a welcome backup to Colorado lawyers and courts. 

Other litigation functions will likely continue to be offered with remote options. The use of virtual means will save costs where travel can be avoided, which clients and attorneys alike will appreciate. Virtual depositions, particularly of less critical witnesses, are likely to remain an option moving forward. 

Likewise, virtual mediation has proven to be successful where appropriate and may provide litigants with increased accessibility to mediators if travel is no longer a consideration. However, for many matters, there remains no substitute for getting the parties together in person to resolve disputes. 

Despite the increased efficiency and flexibility remote proceedings can provide, court dockets will remain severely backlogged following a year or more with little trial activity. Criminal cases with constitutionally mandated deadlines taking precedent over even older pending civil matters, continue to clog court dockets. This results in significant uncertainty for civil trials, which may be double-, triple-, or even deeper backlog on court dockets.   

With courts still conducting jury trials at a reduced pace, courts cannot keep up with the ever-growing new case filings, worsening the backlog. Many civil jury trials have been, and will continue to be, pushed out to 2022 and beyond. Lawyers and their clients should discuss whether their case is suited for a bench trial in hopes of obtaining a quicker resolution as opposed to waiting for a jury trial.  

 The ripple effect of the COVID-19 court backlog will likely take years to overcome. 

This uncertainty regarding the time it may take to resolve a matter may push some litigants toward alternative dispute resolution options, such as arbitration, hoping to achieve a faster, more efficient resolution to their dispute. Arbitration has its downsides as well, however. Arbitration can involve costly fees, awards are nearly impossible to appeal, and because arbitrations are not subject to the same rules as courts, many litigants may see arbitration as too great a gamble. Some companies, including retail behemoth Amazon, have removed arbitration provisions from their contracts, concluding that they would rather face their adversaries in court.  

A decrease in the use of arbitration, coupled with over a year’s worth of stockpiled litigation, could prove difficult for courts to handle. 

As the worst of the COVID-19 pandemic moves into the rearview mirror, and businesses become less concerned about making ends meet each month, litigation activity is expected to continue to increase. COVID-19 has generated a plethora of landlord-tenant, employment, and business contract disputes. Continued market uncertainty will result in an increased number of bankruptcy filings. The termination of eviction moratoriums at the state and federal level will generate large numbers of forcible entry and detainer actions in both the commercial real estate and residential sectors. Colorado case filings are up this year, and all indications suggest that litigation will continue to increase.  

The resultant flood of civil litigation may further strain already backlogged court dockets. 

But it’s certainly not all doom and gloom. Over the last year and a half, the world has learned to be more flexible and has developed new tricks of the trade. Courts and lawyers in Colorado can expect to see some of those new tricks become the norm. For clients and litigants, this hopefully continues to result in better access to justice and better, more efficient representation. 

For clients and litigants, this hopefully continues to result in better access to justice and better, more efficient representation. Eventually, the court’s dockets will balance out, and the justice system will be able to put everything that it has learned over the pandemic to its best and most efficient use.  

Allison M Hester Allison M. Hester is an associate attorney in Denver-based law firm Moye White’s Litigation Section. She can be reached at [email protected].

Caleena S Braig Caleena S. Braig is an associate attorney in Denver-based law firm Moye White’s Litigation Section. She can be reached at [email protected].

Joseph W Mark  Joseph W. Mark is an associate attorney in Denver-based law firm Moye White’s Litigation Section. He can be reached at [email protected].