The novel coronavirus and the disease it causes, Covid-19, are having an unprecedented impact on businesses and individuals, and law firms are doubling down to provide counsel and maintain the operation of their firms. In this series we're asking key questions of attorneys about how this global pandemic is affecting the work they do.
James Bostwick of Bostwick & Peterson is a medical malpractice and personal injury attorney based in California. His debut novel, Acts of Omission, was just nominated for the 2020 Harper Lee Prize for Legal Fiction.
Lawdragon: Since the lockdown, we’ve seen a lot of court closures. What impact is that having on our justice system?
James Bostwick: People are suffering from the delay of justice. In all walks of life, in our businesses, in our personal life, and in injury situations, we depend on an organized and relatively efficient system of justice. If you’re going through a divorce or a custody dispute, if your business is either being sued or suing for what you’re owed, your very survival may depend on whether or not that court or jury is going to find in your favor. Now that’s all left up in the air. If you or your family member suffered an injury, or you're dying from cancer that was undiagnosed, what are you going to do? Your family may have already spent years going through hell trying to work 24/7 to deal with this terrible problem, hoping that there will be a resolution through the lawsuit.
These folks are left in limbo. Even when we start easing the restrictions and getting our courts working again, there will be a huge backlog of criminal cases that will take precedence. Civil cases, no matter how bad it is for the injured parties, will just be waiting.
We’re working with a family of a child who’s terribly brain injured. The case settled a couple months before this lockdown started. However, you get court approval for a minor who's been damaged. You can't get the money until you get court approval. The insurance company won't pay until you get court approval. The courts were already so busy, they always are, so it was taking a while to get a hearing. So, the family was waiting and waiting and waiting. We finally had a date, then the lockdown came, and the court canceled the appearance.
A judge could just look at the papers. They’ve been submitted under penalty of perjury. We've never had one denied in 50 years of doing this. But they just canceled, and they didn't even look at it. That's devastating for a family that's waited for four years.
That is just one example out of hundreds, thousands of people who are being impacted by the shutdown. We rely on that justice system. We all do, in so many different ways.
LD: In and out of the legal world, a lot of us right now are looking at systems with new eyes during this pandemic. Could you speak to what changes that you'd like to see in the legal system once the lockdown is lifted?
JB: Well, lifted is an easy word to say, but that is a huge gray area that could last a year. It’s tempting to think of the world before lockdown and imagine that we’re going to go back to that once the lockdown is lifted. But I don't know that it'll ever be back to normal. The court system was already pretty overwhelmed before this major disruption. So, the question becomes, what does the new normal have to be and what are the various stages of that?
I think that one of the potential benefits of this crisis is the courts are going to have to get a lot more involved in the process. Maybe they’ll make more use of special masters to get people moving their cases along appropriately to keep the courts from being bogged down. They will hopefully set up systems to make the process more efficient.
I could see how a lot of our preparatory work, like discovery and some client meetings, could continue to be done by phone or Zoom, as people are getting more used to using these technologies. Lawyers are discovering they don’t always need to fly across the country for these things. We can save time, save money for our clients and stop burdening the courts with related delays or disagreements.
LD: Interesting. You can see us moving to a more digital approach to litigation?
JB: In some respects, but not all. There are many important things that happen in the course of litigation that can't always be taken care of on the phone or with a video conference. Sometimes you just have to look at a person and get to know them. You need to sit across the table from them and get a sense of who they are. In a deposition for example, when you're taking testimony, it’s harder to do that as well over video conference.
LD: Right. Because if the person has something to hide….
JB: Exactly. When you're questioning or cross-examining a witness, instincts play a real part. You can smell when they’re trying to evade you. You can tell when there's something that they're not telling you or not saying. You get a real sense of the person who’s starting to sweat. You see the moisture on their forehead. You see the movements of their face and their eyes, the twitch of their hands or tap of their feet. You can't get all that from a screen, when half their body is out of the frame and their face is pixelated. The subtle communication of human interaction is lost when you’re not seeing them in the flesh.
LD: Is it possible that we could see a shift from this pandemic where we no longer have jury trials in the same way?
JB: Oh, I hope not. That would change the whole nature of the beast. I think the jury trial as we’ve practiced it for centuries is a wonderful thing. I think that what makes it special is that people are interacting with each other on a very interpersonal basis, the way people are used to interacting and have for millennia. If people on a jury can't do that, if they're remote, if they're doing the process via video conference, something is lost. It'd be a different world and we would have lost the essence of a real jury trial.
Of course, we might have stages where we need to make some adjustments to the traditional jury trial process, until we can get the pandemic under control. Certainly, that could be the case in criminal trials. Jurors must be assured of their safety and the accused have a right to a speedy trial. So maybe you will have a situation where a lawyer is making a case to a jury and they all have masks on, so the lawyer can't tell whether they're sneering or smiling, or they are in separate rooms on TV. That's something that may have to happen, but I hope that doesn't become the norm. I don't think that's what the writers of the Constitution meant when they said you have a right to a jury trial. There would be a real loss if we are all looking at each other through a screen or from behind a mask.
LD: That's so true. So your workload must have slowed down considerably. What are your days like now?
JB: It's a strange combination of things. I have only been to the office twice in the past month, 15 minutes each time and with a face mask on and gloves, because my son convinced me that you can't trust the air filtration system. But then my wife said, “Why is it that you're now working seven days a week, eight, nine hours a day? Why?" It seems like I ought to have nothing to do, but somehow, I have more to do.
Of course, the whole system has slowed down. All my cases that were set for trial are off. I had three mediations that were set to go and they all got canceled.
Out of maybe 25 cases, I've got four or five, maybe six of them, that are close to resolution. They're cases that I can work on now, that I can get to that point where I can either get them resolved or if we can manage to get set for trial we'll be ready to go. I want them to be in the best shape possible.
Some things just take longer when no one’s in the office. I'm trying to get ahold of medical experts that are either very frantically busy, or they're not doing anything because their procedures were declared elective. Many of them are off somewhere and I can’t ahold of them. Some things are just taking longer.
LD: Do you foresee an influx in medical malpractice suits coming directly out of the coronavirus pandemic?
JB: I really doubt it. Those of us who do medical cases are extremely selective. We must be because they're not easy cases. Unless you have a very, very clear case, you'll never win it in front of a jury. Doctors, hospitals, and nurses, they get a pass up to a point. That will only increase in light of what's happening now.
In this pandemic, we're playing catch up every day. The medical professionals are learning more about the disease constantly. You can't call them to task for difficult decisions, when we don’t have all the information and we’re short on equipment. You take a respirator off one person and give it to another, and the first person died? You can't sue for that. That's a heart-rendering decision for the family, and it’s as bad for the poor doctor. It was necessary to make that decision. Attorneys who would think they can sue over something like that would not have good judgment in my opinion.
Some situations may turn into lawsuits, however. Certainly, there are some real issues about nursing homes, how they prepared for this, and what they did, and whether they were forthcoming with information about what was going on.
It’s also likely that we will see less personal injury lawsuits in general during this period. There will be less traffic accidents because there are less people driving. I think we will see less opportunities for people to make human errors that turn into malpractice lawsuits. I really don't foresee much litigation coming out of the actual treatment of the Covid-19 patients.
LD: I’m glad to hear you say that.
JB: Yes. We’re dealing with enough as a nation right now.
I've never seen our justice system in America grind to a halt, indeed I don’t believe it’s ever happened before, but it sure has now.
In the end, justice is like a ballgame. All the preparation is important, but what really matters is who wins and who loses. If we can't have a jury trial, then the whole thing collapses. The courts can order us to resolve the cases, but that doesn't always work. The fact is in order for people to get real and make decisions about resolving cases there must be an end point.
The entire justice system and all its machinations comes down to the ability to have a meaningful jury trial.
Visit our Covid-19 Resource page for a round-up of legal resources regarding the novel coronavirus.