Managing Cases as The Courts Reopen After COVID-19

It gets complicated. There’s not a one-size-fits-all answer to restarting litigation as the courts reopen after COVID-19

Yes, the courts have issued emergency orders to extend statutes of limitations. But there are specific windows where those apply. Failing to understand those windows can result in cases falling outside the statutes of limitations.

We spoke to Texas attorney, Roger Borgelt, to understand this better. Roger has pending cases in both federal court and state court.

Following are some of the topics we discussed with Roger. You can jump to his answers by clicking on the links below.

• What’s impacted you most from the shutdown?
• How has COVID-19 impacted trial settings?
• How have the deadlines shifted for filings?
• What differences do you see between federal courts and state courts in the wake of COVID-19?
• What advice would you give to a young attorney you’re mentoring?
• Have we pushed everything 2 months into the future? Or will we be able to make up time?

Jumpstart your law firm business plan

What’s impacted you most from the shutdown?

Things are a little bit backed up. I will tell you that the important thing for me has been to follow what is going on with the emergency orders being issued by the federal courts as well as the Texas Supreme Court and many of the local courts in the jurisdictions where I practice. So, it’s a lot to keep track of. There’s a lot more to it than just statutes of limitations.

Statutes of limitations is one piece of it that, frankly, has not had a huge effect on me. I’ve been dealing with the reestablishment of other deadlines, potentially the wiping out of trial settings and the need to have trial settings reset.

So there are just a lot of practical issues, such as working out with opposing counsel ongoing issues with discovery. Suddenly the files are no longer available to respond to the discovery, because, contrary to popular belief, not every piece of information is stored electronically. So if offices are closed and files are not available, then that sort of puts an end to being able to search for or obtain information until such time as those offices reopen, and some of them are still not reopened.

Being able to work in a more collaborative way with your opposing party, how to do that? Because I can tell you from years of experience, judges really don’t want to be involved in resolving a procedural dispute over when someone is going to be able to get back in and get control of their stuff, or their documents, or their information, or have full access to the witnesses or whatever it is that they need.

How has COVID-19 impacted trial settings?

I can tell you from my San Antonio case, we had to just completely toss our existing procedural schedule and agree that we would reestablish a schedule once we knew when information would be available. Once we know when we can finish discovery, we can build the rest of the schedule back.

In the meantime, all jury trials in the Western District of Texas have been suspended through June 30th. We were not actually in the position of having to go to trial – we did not have a trial setting. But what that means is that once we’re ready to go back in and request a trial setting, there’s going to be a bunch of folks in front of us that had their trials reset. So, it’s going to cause a tremendous backlog.

We have similar types of orders in the state district courts. It’s definitely something to be dealt with as far as trying to manage exactly how all of this is going to happen. And, of course the clients are – for the most part – anxious to have their matter pushed forward. So, you just have to deal with the reality that COVID has reduced the ability of not just the courts, but the parties to really engage in pushing forward normally in litigation.

It’s starting to lighten up. I can say that my May was very much more active than April. I know some of these orders are starting to expire. The statewide tolling of the statute of limitations that had been in effect actually expired the 1st of June. So, if your statute of limitation issue is after June 1st, which we’re obviously already into that period, then we’re sort of back to normal in terms of the normal SOLs (statute of limitations).

How have the deadlines shifted for filings?

QUESTION: Does it mean that if your statute of limitations expired on June 1st and there hasn’t been an extension, then that case is no longer prosecutable?

ANSWER: Under the order, the deadlines for filing a civil case or service of civil case that falls on a day between March 13th and June 1st is extended until July 15th. So, it had to fall during that window. If it fell after June 1st we’re back to normal. It’s kind of an odd situation where if you have a statute of limitations deadline for filing or service that applies now or during the remainder of this month (June), then it’s the existing limit. But, if it applied during that two months and a half, I guess I’ll call it the COVID period, then you actually have until July 15th. So, you now have to start paying attention again to what the actual timelines are for any case that you’re waiting to file.

My recommendation is, if you if you’ve got a deadline for filing or service that occurs after June 1st, then you don’t get any benefit from this emergency order, at least in state court. Go ahead and move that filing to the front of the line to make sure it’s filed on time.

What differences do you see between federal courts and state courts in the wake of COVID-19?

Well, the federal courts have essentially canceled all trials, both bench and jury through the 30th of June, to be rescheduled by the judge that is presiding over the case. They’re also not doing any grand jury proceedings. They have essentially, to the extent that they can, have suspended the Speedy Trial Act. They’re basically just not doing anything until after the end of June.

What’s going on in Travis County, and as I understand it in a lot of other counties as well, they’re doing video hearings. They’re not doing in-person hearings. They’re not doing anything in Travis County that isn’t deemed to be an emergency. But they’re still conducting court. They’re just doing it by video.

What advice would you give to a young attorney you’re mentoring?

Frankly, for me it – and really should for any attorney – comes down to our original consultation with the client or your original conversation with them about:

• What exactly happened?
• When did it happen?
• And, if it happened over a period of time, what was the beginning and end of that period of time?
• What were the most significant events during that period of time?

Because you want to get an idea, when you’re initially talking to the client, about when something happened, because that is the date that we lawyers say the cause of action accrued. You need to know the date when “the thing” happened that you could potentially file a lawsuit about.

And then you have to go look at various limitations periods. The most common is two years. But some are three. Some are five. Defamation cases are actually six months. So, you have to be very careful about those.

I would say to a young lawyer, definitely figure out whatever this client is complaining of and wants you to take care of for them. When did it happen? – so that you can immediately know what your deadline is for filing a lawsuit. Normally it’s not a huge issue, because normally the clients come in fairly soon after something has occurred. So, you’re generally going to have up to a year and a half to a year and nine months or so, if it’s a two-year statute, to get something filed. So, it’s normally not that big of an issue.

Occasionally people wait a long time to talk to a lawyer. That’s when you really have to be careful about it. I have occasionally had the experience where someone came to me, and I’ll just hypothetically say – somebody called me up last month and said “hey, I got ripped off by this guy who didn’t deliver the goods and I think it’s deceptive trade.” When did this happen? Well, it happened in May of 2017. Well, guess what? They’re already out of luck. So, occasionally you have those unfortunate kinds of conversations where people just waited too long to talk to a lawyer. You definitely want to find out in the initial conversation exactly when this occurred. Because, if it is a situation where they’re already past the limitations period, then you need to be able to very quickly tell them that so that nobody wastes any more time on it.

QUESTION: Any additional thoughts on guidelines as courts reopen?

ANSWER: Well, this has a lot to do with client management. The stuff that’s been sitting there that the clients are in a hurry for, if you’ve got a limitations issue and you haven’t gotten it filed, then you need to get it filed.

The stuff that has been sitting the longest, stagnant with nothing able to happen to it needs to get attention as quickly as possible. If only to avoid client frustration and anger over nothing happening in their case. And, of course, some of this stuff we have no control over. But, to the extent that we can get things moving once the courts are open and the offices are open, then go after the oldest, stalest stuff that you’ve got, and try to get it moving again before you focus your attention on the thing that just walked into the office yesterday, which may be more interesting to you.

Have we pushed everything 2 months into the future? Or will we be able to make up time?

I think for the most part everything’s just been pushed out. Obviously, we’re still coming out of this thing. There’s going to be delays in terms of getting everything heard that normally would have been heard this year. I don’t think we’re going to hear the number of cases through the court system that we normally would have heard this year. That’s just a reality. People need to be reasonable about that.

I can say that pretty much for the month of April and into May, and it was only really around the middle of May that things started picking up a little bit. We’re not anywhere near back to full steam yet because people are not fully back to work. But, they’re more and more back to work, and they’re more and more able to respond.

All of those things that got canceled and didn’t happen for let’s just say two and a half months, half of March and April and May, are now going to have to be rescheduled on top of all of the things that are turning up new now – that would have ordinarily happened in June and July. So, everything gets pushed out.

I would say the summer is going to be a little busier for most folks than it normally is. But on the other hand, I’m not hearing about a lot of people planning elaborate vacations either. So, we may not have the usual “I need the month of August off” vacation squabbles because nobody really wants to go anywhere right now. I’m hearing about very few people with major vacations planned. Maybe people taking long weekends for places that are within a day’s drive. But that’s about all I’m hearing.

Summary

COVID-19 impacted trial settings, statutes of limitations, discovery, and almost every aspect of law. In general, the schedule has been pushed out two to three months. But it’s not that simple. Some deadlines remain the same depending on the incident date.

So, in responding to COVID-19, review your cases. Understand and track deadlines. Collaboratively workout discovery and the trial setting with opposing counsel. But be firm if they won’t engage.

More Resources:

Email Disclaimers For Law Firms

Jumpstart your law firm business plan