Clog is overwhelming now---COVID and criminal cases.

As judges around the country gingerly reopen their courtrooms and invite lawyers, litigants and jurors back for business—sometimes as usual, but often still far from the normal routines of years past—they’re being confronted by an array of pitfalls, real and potential.

Will a surge of COVID-19 cases among the unvaccinated and forceful advance of the delta variant force renewed shutdowns? Will jurors and staffers be willing to risk a return? Are mask mandates and vaccine passports in the offing?

But one very real dilemma is already on their minds: Backlogs of criminal, civil and domestic cases that have piled up, exacerbating already crowded dockets where litigants and lawyers jostle to get motions filed, rulings issued and, toughest of all, cases tried.

Richard Clifton, a senior judge on the U.S. Court of Appeals for the Ninth Circuit, who serves as president of the Federal Judges Association, said that court backlogs are a big topic for judges, although not all are as impacted as others.

“At least one judge in a very busy district didn’t think the backlog had turned out as high as it turned out to be,” he said. “Other judges have commented, unspecifically, they’re just piling up.”

He said the most frequent comment is that the civil calendar “is just sitting there” because judges are spending all their time dealing with criminal caseloads.

He hasn’t heard about judges suggesting settlement as an option to those with civil cases but, he said, “I would be shocked if it weren’t happening.”

“The reality is that most cases get settled, we all know that—it’s not a good or a bad thing, it’s just a fact,” he said. And, while judges don’t actively get involved in settlements, their goal is to resolve cases. “And if it’s realistic to say to parties, ‘look, you won’t get a trial date anytime soon,’ I’m sure that’s something judges are saying to parties in those cases.”

That’s exactly what happened to Ryan Baker, of Waymaker in Los Angeles.

“It absolutely is the case that, especially in the federal courts, civil trials are at the end of the line,” he said. Baker represents the defendant in a trademark case filed in 2017.

“I know there’s been a lot of debate among the judges on how to handle this situation,” he said. “There are very different views, as there are with any group of people, on what is appropriate and what measures need to be taken.”

In Baker’s case, U.S. District Judge Cormac Carney of the Central District of California minced no words in telling the parties in April that he could not guarantee a trial date in 2021, or even the first half of 2022.

“The court strongly believes that this case should settle,” he wrote in a minute order. “To hold a trial in this civil case would mean asking citizens to report for jury duty or to testify as witnesses when many of them have been out of work for months and fear they will not be able to pay their rent, mortgage, or other bills, or put food on the table for their families.

“And it would also ask the court to find time in its congested calendar for such an endeavor after more than a year of closure due to the coronavirus,” Carney wrote.

Baker said the case went through two mediations and three court-ordered settlement conferences before settling July 23.

“And these conferences, the last couple have been ordered because the court is concerned that this case is not going to be set for trial, not this year, not even next year, because of the backlog of criminal matters that will necessarily precede all the civil trials,” he said.

California’s Central District, which includes Los Angeles, has six judicial vacancies.

But Baker said a lot depends on how much is at stake in the case and the specific judge’s calendar. He has another case in the district in which Judge Consuelo Marshall has set a trial date for February 2022.

But there has been a strong push for settlement.

“The backlog factor weighs heavily in favor of courts really advocating for private resolution because the reality is litigants are having to bear the cost of extended and protracted litigation,” Baker said.

In a 2015 patent infringement lawsuit in the Southern District of New York, Judge Gregory Woods canceled a Nov. 29 trial, citing a criminal trial now scheduled for that date. After his June 15 order, U.S. Magistrate Judge Sarah Netburn asked the parties for settlement dates.

Another judge in New Mexico cited the court’s backlog as a reason to grant final approval of a nearly $4.2 million settlement involving a class of truck drivers seeking unpaid overtime wages. Settling the 2019 class action would avoid “significant delay,” U.S. Magistrate Judge Gregory Fouratt said in an April 9 order.

“The court further observes that litigation of this case would have moved exceptionally slowly in the current pandemic environment in which jury trials are logistically difficult and almost entirely devoted for the next 12-18 months to resolving an unprecedented backlog in criminal cases,” he wrote.

Shannon Liss-Riordan, the plaintiff’s lawyer in that case, agreed that the pandemic has exacerbated delays, but not “to an inordinate degree.”

Liss-Riordan, of Boston’s Lichten & Liss-Riordan, noted that she tried a federal bench trial this year via Zoom along with several arbitrations during the past year.

Her firm also has settled two cases that were at least a decade old.

Sometimes, clients opt to settle on their own, many hoping to avoid the increasing costs of litigating and the potential unavailability of witnesses one or two years down the road.

“Everybody is really tired of hearing, ‘well, the pandemic,’” Baker said. “Everything in life is different because of the pandemic, including the operation of the judicial system. The second part is, ‘what can we do about it?’ One of the first, most obvious, answers is, ‘We can try to settle it. We can take matters in our own hands.’”

In some cases, Baker said, the parties have stipulated to arbitration despite having no arbitration agreement because it’s faster than going through the courts.

A ‘Hammer’ Helps

The reality of a trial date that all parties can count on happening is the most crucial “hammer” driving serious negotiations.

Adam Malone of Atlanta’s Malone Law, president-elect of the Georgia Trial Lawyers Association, said that while “issues with resuming jury trials differ from courthouse to courthouse,” judges “are urging now, as they did pre-pandemic, that the parties work together to resolve with each other by mediation or some other form of alternative dispute resolution, but not with undue pressure.”

“Many judges are offering the parties a bench trial if they consent and are willing to accept civil cases as a back-up to their criminal calendars,” he said, a strategy GTLA is encouraging for its members.

“We are finding that liability insurers and defendants, most of the time, will not waive their right to a jury trial and consent to a bench trial,” he said. “That leaves ADR as the only option.”

“My experience with mediation is that it’s largely been a waste of time unless we had a trial date on the books,” said Malone, who specializes in medical malpractice cases.

“The most effective and efficient way to reduce the civil backlog is to urge mediation together with notice of a trial date no matter how distant. Short of those steps, early and swift rulings on pending motions will make ADR options far more productive,” Malone said. “Resolving as many questions as can be resolved short of a jury trial is the second best way to reduce civil backlog.”

DeKalb County State Court Judge Alvin Wong, president of the Georgia Council of State Court Judges, said he hasn’t noticed any overt trend to crack the settlement whip on litigants, “but I think that’s simply because the people I deal with have always sort of embraced alternative dispute resolution and the prolific growth of the mediation business.”

Wong said his standard pretrial process has long included asking whether the parties have mediated a case and, if not, whether they’re willing to do so.

“Some judges just say, ‘If you’re on a trial calendar, we’re going to try you,”’ he said. “Others are very active about pursuing it; a lot of it is personality driven.”

“We clearly have a lot more cases on our docket now because of the shutdown, but I wouldn’t call it an undoable backlog,” said Wong. “Most of my discussions with my colleagues have been, ‘How do we get trials going again if you’ve got a big calendar.’ We’re not going to have continuances, and if you announce ‘ready for trial,’ be ready.”

“In my world—the tort world, personal injury cases—just about every case has the potential for resolution, even if there’s a big difference in the valuation of a case. A lot of times it takes some discovery to see whether that can happen.”

Wong agreed with Malone that the “hammer” of a trial date is often essential to resolving a case. “It’s like, ‘Eh, you’re not giving me enough money, you’re not ready to get down to brass tacks.’ But if you’re No. 1 or No. 2 on a trial calendar, you’re a lot more worried about resolution.”

Wong said he recently placed 25 or 30 civil cases on a trial calendar running through December.

“I called in a bunch of cases that said they weren’t ready, and a bunch of them settled,” he said.

“There are many cases that have been mediated; then on the eve of trial they’ll resolve or they’ll mediate again,” he said.

Fellow Georgia jurist Craig Schwall of the Fulton County Superior Court, who last year rotated from the general trial docket to the Family Division, said mediation is a “must” in domestic and most civil cases, “especially when we have such limited resources.”

“A lot of times civil lawyers feel like they’re put on the back burner, and I always tried to make sure if they were ready to try a case, we did it,” he said. “But I think mediation is the norm now, and I would be surprised if more judges did not require it because it gets a fresh set of eyes to look at the case: Somebody that’s well respected, who can tell see what it’s worth, and who’s being reasonable.”

“In high-dollar civil cases with a lot of witnesses, I’d set a special trial date and say, ‘OK, I want you to go mediation; your trial date is July 1,” he said. “You’re either going to settle it, try it, or dismiss it.’”

“I think it’s important to have some with no authority in the case giving an opinion, because if the trial judge gives an opinion that’s going to give somebody an advantage,” said Schwall. “One thing I would not do is rule on a motion for summary judgment if I thought it would impede settling the case at mediation, unless it was clearly so obvious that there was something that shouldn’t be in the case.”

Ready for Trial? Really Ready?

Florida Justice Association president Tiffany Faddis, who specializes in personal injury cases, noted that all cases in that state’s trial (circuit) courts are required to go to mediation as part of the filing process.

“The problem right now in the Ninth Circuit, where I usually practice, is that there’s such an overflow of cases that there aren’t enough judges,” said Faddis, of Dan Newlin Injury Attorneys in Orlando. “There was a backlog even before COVID; trial orders were coming out with trial dates set a year, year and a half out. We all exchange initial discovery requests, interrogatories, requests for admissions, so the case is often really ripe for settlement discussions.”

“There are those cases where the other side is not really engaged in wanting to mediate,” she said. “We could be technically ready for trial, but because we’re set out so far in advance, it’s kind of a waiting game.”

“Sometimes I file a motion to compel mediation and the other side does want to cooperate and agreed to a mediation, and I have filed those motions [saying], ‘Judge, I know this case is not set for trial until this date and there are other cases ahead of us, but we’d like to go to mediation and get this case resolved amicably and get it off your docket,’ and a lot of those cases do settle.”

“In my career about 85% of cases typically resolve through mediation; about 10% settle close to trial, and about 5% go to trial.”

“COVID was a big gamechanger for a lot of people who had to get used to Zoom and Webex, but I think the judges have all incredibly adapted, as have the lawyers.”

“Some judges right now in central Florida are really trying to move cases through docket very fast,” Faddis said. “They’re having parties appear on Friday, [asking] ‘are you ready for trial?’ At that point, you better have your ducks in row because they’re picking a jury Friday and trying your case Monday. I think it’s really a great way to move things along.”

“In many ways, it’s been a boon for my business this year,” said Jeff Kichaven of Jeff Kichaven Commercial Mediation in Los Angeles. “Every lawyer in town knows that trials are not being set for months, or perhaps a couple years in the future. I don’t think this is surprising anybody.”

And with many negotiations happening on Zoom, mediators can convene parties from across the country on short notice, making settlement discussions simpler than before the pandemic, he said.

Kichaven predicted more settlements to come, citing the practical reasons for doing so. Some plaintiffs can’t afford to wait another two years for a trial, while some defendants want to stop paying legal fees and focus on their business. Under those circumstances, some plaintiffs are willing to take less money, while defendants might pay more just to resolve the litigation.

“There are people who just need to put stuff behind them and just can’t wait for the court system to handle their cases,” he said.

It’s not just backlogs that are problematic—it’s holding a jury trial during a pandemic. Court officials have to be careful about asking jurors who are concerned about health risks into the courthouse, Kichaven said.

“It’ll be a long time before the pace of trials returns to what it was before the pandemic and the lockdowns,” Kichaven said. “Just think about what a courthouse looks like. Think about what the jury assembly room looks like in a major metropolitan courthouse—the jury assembly room looks like Grand Central Station, teeming with people from all parts of the county. And if you’re concerned about contagious diseases and think you might be particularly susceptible, the jury assembly room is probably one of the last places you want to be.”