All About Estates

Thoughts on Litigating in a Pandemic

We are now several weeks into self-isolation, physical distancing, and working from home. Litigating is certainly not top of mind for most people. Moreover, the courts are operating under a limited schedule and will continue restricting the number of matters moving forward well into the summer (jury trials, for example, won’t begin until September 2020 and certain matters will be given priority over others). Many private mediations have been postponed and examinations adjourned as they qualify as “large gatherings.” Client meetings are now usually conducted by phone or video conference (hands up if you wish you had invested in Zoom before Covid-19!). The impact of this pandemic reaches all areas of our lives – social, economic, and political – and is different and more profound that anything we have seen in the recent past.

While we persevere, for what it is worth, here are my thoughts on litigating during a pandemic:

  • Stay calm and carry on! This old adage has always applied to litigation, but is even more apt today. The pandemic will pass and we will live to fight another day. Don’t lose faith in the legal system.
  • Communicate regularly with your clients, even if it is just to let them know that you are still around. Make an effort to let clients know what’s going on generally, what they can expect in the weeks and months ahead, and that you are still working and thinking about their case.
  • Actively manage your clients’ expectations in these changed times. Now may be a good time to remind your clients that you are not simply a hired gun to do whatever they like. Remind clients that they must make clear-eyed “business decisions,” not “emotional or reactive decisions.” Remember, judges are still looking for reasoned and reasonable positions.
  • As we transition to working remotely from home, make sure you continue to protect your clients’ privacy and confidentiality.
  • Be even more reasonable and civil with opposing counsel. Lawyers need to work together to keep the system “greased” and moving along. Extending professional courtesies to opposing counsel is the new normal.
  • Make sure you stay up-to-date on what the courts are doing. Take advantage of what you can and work collaboratively with opposing counsel to move matters along.
  • Be creative and think about alternatives to advance the litigation. A note of caution, however: don’t fall in love with the latest technology craze (“… sparkle in someone else’s eyes”). Everybody jumped onto the Zoom bandwagon only to find that it could he hacked and had privacy issues. Proceed with caution!
  • Virtual mediations sound great on paper, but they are, in my opinion, a poor cousin to in-person mediations. Mediations of estate and guardianship matters are intense and emotional. Parties need to be heard, affirmed, and often persuaded or cajoled. Don’t underestimate the power of human dynamics and body language. If you are able, be patient and schedule an in-person mediation in the summer or fall.
  • Review your files thoroughly. Is anything missing … a signed retainer agreement, an expert opinion, for example. Review your litigation strategy – consider and test your theory of the case – what weaknesses have become apparent as the case has progressed? Do you need to pivot?
  • Now may be the time to seriously think about making a reasonable settlement offer. As always, a settlement offer can be tactical to protect your client from an adverse cost award. However, with most matters adjourned indefinitely, the time to settle may be now!
  • Make sure you bill your files and collect. By all means cut your clients some slack to pay, but you are not a bank and need to be paid too.
  • Look around for outside resources to help you manage your practice. Check out the LSO, the OBA and The Advocates’ Society. Think outside the box and get creative.
  • Turn you attention to non-billable matters. Maybe there’s a paper or article you always wanted to write, maybe it’s time to start a blog, record a webinar, or perfect a marketing or career plan.
  • Update your will and prepare an advance healthcare direction. Many lawyers neglect to look after their personal affairs.
  • Keep an eye on your mental health. Litigators are supposed to be tough and strong, but even “tough guys” need to give themselves a break every once in a while. Immerse yourself in a new series on one of the many streaming services (I recommend The Capture on Amazon Prime), exercise, go for a walk, read a novel, play games. In other words, try and find ways to decompress and relax.
  • Finally, I will end with the words of Max Ehrmann’s famous 1927 poem, Desiderata: “Nurture strength of spirit to shield you in sudden misfortune. But do not distress yourself with dark imaginings. Many fears are born of fatigue and loneliness. Beyond a wholesome discipline, be gentle with yourself.”

Keep litigating and stay safe,

Justin

P.S. You can find more information about estate litigation at devrieslitigation.com/blogs

About Justin de Vries
Justin has been consistently named as one of the Best Lawyers in Canada/Trusts & Estates. He is an accomplished litigator who has appeared before all levels of the Ontario Court & the Federal Court of Canada. Justin's areas of expertise include: estate, trust, and capacity litigation, as well as probate applications and estate administration. He regularly speaks on estate, trust and capacity issues. Email: jdevries@devrieslitigation.com

1 Comment

  1. Barbara Grossman

    April 22, 2020 - 8:01 pm
    Reply

    Well said Justin. And thanks for the lyric and poetry links!

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