Charles Darwin said that “It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is most adaptable to change.” This pandemic has revealed that both sides of the bar are adapting to the challenges the pandemic has had on our profession together. This pandemic has revealed that both sides of the bar are in a symbiotic relationship. As a defense lawyer, you are trying to minimize the risk and exposure of the case and as a plaintiff ’s lawyer, you are trying to maximize the case value for your clients.
Cases That May Be on the Rise Due to the Pandemic
Certain types of cases that drive the plaintiff and insurance defense bar, such as auto accidents and premises liability matters, are not arising as frequently today while pandemic restrictions are in place. On the positive side, the effect of economic disruption upon employment, housing, and commercial and residential leases may at some point result in more legal work in specific practice areas. Insurance bad faith cases resulting from mishandling of business interruption insurance claims and related matters appear to be on the rise.
Here are some common types of potential employment law claims which may increase due to the pandemic:
Employers may be using the economic recession as an excuse to terminate employees for discriminatory reasons under the guise of layoffs and legitimate business reasons like reduced revenue and reduced business operations. However, such terminations are still discriminatory and legally actionable under the California Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964.
Workers’ Compensation Claims
Certain covered workers (e.g. those that work outside of the home at the direction of their employers) who contract Covid-19 will automatically be presumed to have a work-related injury potentially recoverable under the state’s workers compensation system.
Violations of Medical Leave
California workers are entitled to 12 weeks of unpaid job protected leave under the California Family Rights Act for their own serious health condition and to care for a family member’s serious health condition. Employer’s may be violating employees’ ability to take medical leaves and/or terminating them due to engaging in such protected activities.
Cal OSHA regulations are responsible for enforcing health and safety laws, rules and standards. Current standards require employers to provide personal protective equipment and a safe environment to work in this pandemic
Employees who raise health and safety concerns are protected from retaliation under California labor code sections 6310, 6311 and 1102.5. Retaliation claims maybe on the rise.
This is not an exhaustive list of potential claims that may arise with more or less frequency due to the pandemic. Employers who do not have Employment Practices Liability Insurance (EPLI) to cover certain work related claims like discrimination and retaliation may become insolvent and unable to pay a monetary judgement or settlement. Lawyers are being cautious about bringing lawsuits against industries hit hard by the pandemic.
How the Court System and Legal Profession have Adapted
Courts have reduced operations since mid-March 2020 and are handling only certain types of cases such as criminal matters where there are jurisdictional deadlines, and emergency petitions. Most other matters such as civil trials and motions, have been continued and will be rescheduled to dates well into the future.
Trials are being delayed and postponed due to social distancing guidelines and related court closures. Trial dates often drive settlement. Delayed trials mean less billable hours for defense firms and less pressure to settle and less income for plaintiff lawyers and their clients. There is also the very real possibility that juries are going to be tougher in civil jury trials and award less money due to our challenging economic reality.
Many aspects of law practice are being carried on electronically. Documents which previously were served only by US Mail are now permitted to be served electronically and filings which were mailed or delivered by messenger to Courthouses are being filed electronically.
Within their own offices, lawyers are making changes to deal with the current situation and learning new procedures which may continue even after restrictions are lifted. Web-based videoconferencing and screen sharing are making the operation of virtual legal teams even more possible. Working at home with internet connections, virtual private network connections to office computer networks, and proficiency with video conference applications such as Zoom, WebEx and Teams is becoming commonplace for lawyers and law office personnel.
Managing other employees who are working virtually is another challenge. Partners and senior staff cannot watch and observe their employees when everyone is working virtually. Technology exists to monitor employee’s computer use and better track their time and billable hours to ensure the employee is working efficiently. This does raise privacy concerns which should be addressed within law firms and disclaimers and employee consents to such computer monitoring is advised.
The pandemic has shown that the legal profession has and likely will continue to suffer from the financial consequences of the global economic downturn. Law firms are adapting to this new normal by using technology to work virtually. Our court system is adapting through accommodating social distancing guidelines including through telephonic and virtual court appearances. Law firms have and will continue to adapt to practicing law in a post pandemic world to continue to effectively represent their clients and to bring about positive social change in our society.