Most lawyers have acted admirably and worked together to move matters forward despite challenges posed by COVID-19. Indeed, many attorneys have served courtesy copies of papers through email since they know people are mostly working from home, reached compromises because courts are backlogged, and cooperated to solve problems throughout the pandemic. However, some lawyers have taken advantage of the pandemic to serve their own interests. While every lawyer has a duty to zealously represent their clients, some attorneys have used current conditions to their benefit in unfair ways.
For instance, some lawyers have made it more difficult for their adversaries to conduct work from their homes during this trying time. With almost all of my cases, lawyers are agreeing to loosen typical service requirements because it is far easier to accept service of motions and discovery documents through email than by mail like under normal circumstances. However, I recently heard a story of an adversary who circulated a notice conveying that the attorney’s office would be declining electronic service of motions, discovery papers, and the like. Forcing people to go to the post office or the office unnecessarily during a pandemic is extremely discourteous, and although there may be some circumstances in which electronic service should be declined, such flexibility can be critical right now.
Moreover, some people are seemingly using the fact that people are out of their offices to be sneaky about certain parts of the litigation process. In many jurisdictions, parties can serve notices to admit (also called requests for admission) on other parties asking them to admit or deny key facts about a case or if certain documents are complete and genuine. If the receiving party does not deny any of the requests in such discovery devices by a certain time, the requests may be deemed admitted. I have anecdotally heard of some lawyers mailing such requests to law offices even though they know that people are working from home, seemingly hoping that adversaries will not see the requests for admission and they will be deemed admitted. This is not a fair tactic, and a court would likely find as much if faced with a motion for a protective order or other relief by the party aggrieved by this tactic. Individuals should not be surreptitious because most people are working from home right now and should email courtesy copies of documents n such instances.
Attorneys seem to be using the pandemic to their advantage when delaying depositions in order to drag out litigation when it makes sense to do so. At the beginning the pandemic, lawyers rightfully argued that depositions should be adjourned because it was not safe to hold in-person depositions that might be easier to hold at a later date. As the months of the pandemic ticked by, it became clear that in-person depositions would not be advisable for some time, but people continued to argue that depositions should be held off until they can occur in person.
Of course, in-person depositions are usually better because it is easier to evaluate someone’s reactions when they are in the same room, and it is difficult to introduce exhibits during virtual depositions. In addition, depositions that require translators are often much easier to conduct in person because of the additional steps involved in translating testimony. However, attorneys have been holding virtual depositions just fine throughout the pandemic. Even though some lawyers may wish to delay cases, they should not be allowed to adjourn depositions so they can be held in person.
Moreover, many parties seem to be taking advantage of the fact that cases are not being managed as closely as they were before the pandemic and it is more difficult to get judicial intervention now than it was before the pandemic. The first time I drove a long distance during the pandemic, I was amazed at how few cops I saw on the road. Maybe police were called to help with the increased number of ambulances I saw in my area when New York City was the epicenter of the COVID-19 pandemic, but suffice it to say that there were few cops around at that time to regulate traffic. This had a profound impact on drivers, and I saw people doing some unbelievable things on the road when my area was dealing with the worst of the pandemic. Maybe some motorists thought that since there were less cops on the road, and they were unlikely to receive a ticket, they could do whatever they wanted.
Some lawyers seem to be acting in a similar manner. Since they know that judges are dealing with a backlog of work, and it may take time to receive an order after a motion, some attorneys might be more zealous when denying discovery requests or reaching the types of compromises we all make during litigation. Certain legal matters have become a little like the Wild West because of the pandemic, and some lawyers are using the lack of judicial oversight to their advantage.
All told, although many lawyers have acted admirably during the pandemic, some lawyers have unfairly used present circumstances to their advantage. Hopefully, courts and colleagues have long memories for the people that it made it more difficult to handle legal matters during this challenging time.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.