Navigating new waves of tortious litigation
According to international law firm Crowell & Moring, COVID-19 has “changed the way that litigation is conducted, in ways that will be with us forever”. Such changes present challenges, the firm warned, for tort litigation.
Crowell & Moring, which is headquartered in Washington, DC, recently released a new report, titled, “Litigation Forecast 2021: What corporate counsel need to know for the coming year”, detailing the myriad ways courts and litigants have been forced to adapt in the wake of the age of coronavirus, and exploring how best to manage the longer-lasting changes to the professional landscape.
“Both courts and litigation proceedings are likely to be more efficient. This means fundamental changes in the art of preparing your case and presenting your arguments,” opined Crowell & Moring partner Mark Klapow.
The past year, the firm wrote, opened the door to a range of c in the wake of the pandemic.
As a result, Crowell & Moring counsel Chalana Damron said, companies now face a landscape “where they need to think strategically about how to mitigate the risk of pandemic-related litigation”.
Companies will also need to consider, the firm continued, the increased risk of exposure litigation in which plaintiffs allege companies have been negligent in protecting against the virus – something that has affected nursing homes and cruise liners, but is starting to reach more industries.
Even using reasonable standards of care may not appear sufficient, the firm mused, given the “special challenges” arising from 2020. “COVID-19 is unique in that the standard of care is somewhat amorphous and evolving,” Ms Damron said.
Appreciating what the standards are hasn’t been helped by the “patchwork of ever-changing restrictions”, some of which have been voluntary and others, which reflected political priorities, the firm said.
“With constantly-changing guidelines, companies are wondering how to comply, and how they’ll justify today’s decisions about standard of care a year or two from now,” Ms Damron noted.
Because plaintiffs will be holding companies to new standards, she advised, they will have to document the current standard of care and their rationale for implementing corresponding policies and countermeasures.
“Creating ‘good’ contemporaneous documents can certainly reduce the risk that jurors, who may not remember the standard of care in, say, April 2020, may hold companies to a heightened standard of care that did not exist during the relevant time period,” she said.
In order to mitigate the risk of exposure litigation, the firm deduced, companies have to consider waivers and other ways to acknowledge the potential risks pertaining to COVID-19 to employees and consumers, and then call attention to the possibility of eliminating all risk. Furthermore, they need to get out in front of the oft-mixed messaging of governments and seek “more concrete sources” to understand standards of care.
“Given the uniqueness and cloudiness of the situation, looking at regulatory guidance may not be enough,” Ms Damron said.
“It may be better to base your case and decisions on science and the recommendations from health care organisations such as the WHO.” At the same time, she added “remain flexible. With COVID-19, policies that are reasonable today may not seem so reasonable in a few months.”
Another solution is to “keep an eye” on other tort litigation frontiers being opened up by the pandemic, Ms Damron continued.
Looking ahead, she noted, “we may see lawsuits involving employees who have a reaction to COVID-19 vaccines required by employers, and even liability lawsuits involving problems from the increased use of telemedicine devices. More and more, plaintiffs, and their lawyers, are viewing liability through the lens of COVID-19.”
Last week, Herbert Smith Freehills partner Jason Betts spoke on The Lawyers Weekly Show about what the future of litigation looks like and how best partners in this space can lead their teams moving forward.