The Epidemic as an Argument for Settling Civil Cases

|The Volokh Conspiracy |

From Magistrate Judge Barbara D. Holmes' case management order in a federal case in the Middle District of Tennessee; my guess is that this is becoming boilerplate in that district, and perhaps in others as well:

The Court encourages the parties to carefully consider resolution of this case prior to trial. In addition to all the standard reasons that a resolution is beneficial, the unpredictable impact on the Court's operations from the coronavirus pandemic is another consideration. Consistent with local and national efforts, the Court has imposed restrictive measures to manage the spread of the virus and limit the potential for illness and death, including restricted, conditional access to the courthouse, postponement of criminal jury trials and other in-court proceedings, postponement of grand jury proceedings, and use of video or telephonic conferencing for critical proceedings. The Court has adopted a phased approach during the pandemic to continue and resume operations. The Court is unable to predict what long-term impact these necessary measures will ultimately have on operations.

The Court notes that it is now ready, willing, and able to hold civil jury trials, subject to changing conditions and with appropriate safety measures in place. However, once criminal trials resume, any scheduled civil jury trial could be forced to give way to a criminal trial.

In light of the uncertain duration of the ongoing COVID-19 pandemic, the number of jury trial that have had to be postponed, the legal imperative to prioritize criminal trials once the Court can hold criminal jury trials again, and the congestion of the Court's calendar even prior to the pandemic, the Court strongly encourages litigants … in all pending civil cases to intensify their efforts at case resolution as a means by which they can ensure not only certainty of outcome and finality, but also the timing of resolution.

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  1. I love trying cases, and take a tough position on settlement by making it clear I’m going ahead to trial. This usually gets me a favorable settlement because most of my adversaries 1) despite their bluster (“I have xxx years of trial experience!” is a dead giveaway) are in fact not up to trying the case, or 2) are not trial attorneys and will have to hand off the case to another attorney with whom they will have to split their fee.

    That “bullet” is no longer in my gun, and probably won’t be until sometime next year.

  2. The “we won’t talk about settlement” usually is just bluster and lasts until trial is looming. Then either the insurance company adds up the legal fee dollars a trial is going to cost or the attorney for one party tells the client what the trial bill will look like and *poof* magically settlement numbers come out. For all the talk of trial experience and favorable verdicts from trial they rarely ever seem to take place.

    1. That depends on the case. In my work the costs of trial are usually not substantial compared to the full value of the case. It’s usually a matter of one side not being willing to face up to the risk of an adverse verdict. And of course there’s always a risk. When the other side quickly caves in during jury selection I partly feel cheated out of a chance to try another case, but also relieved.

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