As Temperatures Heat Up, Remember Litigation Will, Too

For many litigators, including those of us who handle pharmaceutical and medical device litigation, the past several months have seen various departures from how we might otherwise have pursued our pending cases. While effects varied in different parts of the country, and courts in different jurisdictions have adopted different plans for reopening and allowing cases to continue, everyone has likely seen at least some changes. Some attorneys have embraced virtual/remote depositions, while others have opted to wait to schedule and depose witnesses in the hopes of being able to do so in a more traditional in-person setting. Healthcare providers, whose resources have been refocused to combat the challenges of COVID-19, may have slowed— or even stopped—efforts to comply with discovery requests for medical treatment records. Clients— many of whom have also experienced the disruptions of having to work remotely— may also have requested, or at least appreciated, a reduction in outside litigation activities.

While most courts appear to have been very cooperative and understanding during this time, including a willingness to extend deadlines and grant extensions, there will come a time when judges will return to a more normal posture of pressing pending cases forward and ensuring that litigants and counsel are actively working to move their cases towards resolution. We don’t know when that will be—and it will be different in different places—but we all know it is inevitable.

Under more normal circumstances, many attorneys, as well as many judges, tend to relax a bit during the summer months and pump the brakes to some extent on litigation activities. This is, of course, understandable, as attorneys and judges are no different than the rest of the country that correlates summer with vacation—even when there are no longer school-age kids in the picture.

But, as will surprise exactly no one, these are not normal circumstances, and many of us have been home – with or without the aforementioned school-age kids present—for months. Given that, it is prudent to remember what is coming—maybe later this year, maybe early next year. At some point, courts and judges will look to counsel to see what has been accomplished in the cases pending before them.

Those litigators and clients who are prudent will realize that continuing to work actively during the summer season will undoubtedly pay benefits when litigation returns to a more normal setting, both in terms of increasing judicial goodwill and occupying positions of strength as compared to adversaries who may not have foreseen the wisdom of being proactive. So, in a year already filled with myriad differences due to COVID-19, one more such difference might be the realization that continuing to work diligently, and perhaps not slowing up as much as might otherwise occur during the summer months, will likely prove to be very beneficial when litigation eventually reemerges.


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