Opinion: How changes forced by pandemic are reducing litigation costs

It has become common to say that we’re living through an unprecedented time. We’re also living in a time of great change that has been forced upon us. Some of these changes have been for the better — and have not only ensured cases move along, but also provide significant cost savings.

When things go back to normal, whenever that may, will these changes last? Let’s take a look at what’s changed and how the insurance industry can benefit.

Accelerated tech adoption saves money

The onset of the pandemic made in-person examinations for discovery, mediations, motions, pre-trials and trials unsafe and impractical. If lawyers couldn’t gather in the same room, how could they possibly do the job of advocating for their insurer clients and move claims forward? Would 4-6 months of stalled claims (multiplied by thousands of claims per insurer) cause a backlog that would take years to dig out from?

iStock.com/bob_bosewell

Claims handlers and lawyers (both plaintiff and defence) have adapted and have conducted their examinations for discovery and mediations by video conference. Court reporting offices have adapted as well, familiarizing themselves with technology.

There have been many benefits from the move to conducting litigation by video conference. One is the elimination of travel time and the associated expense. I had planned travel to Windsor for three days of discovery earlier this month. There were six lawyers involved, spread over three actions. The clients were expecting to be billed for hotel rooms, flights and time spent travelling. Those expenses were eliminated at a significant saving to the insurer.

While this was just one claim, the cost savings could theoretically apply to thousands of additional claims. If conducting examinations for discovery and mediations remotely are going to become more common, an insurer might be more inclined to retain a lawyer from a particular jurisdiction, one with whom they are more comfortable, to litigate a claim in a different jurisdiction. There would be no added expense associated with travel up until pre-trial and trial.

The court system (which has in the past been notoriously slow to change) has adapted as well, accepting online filings of certain types of documents and conducting certain appearances by video conference. This widespread use may turn out to be transformative in terms of cost, efficiency and timeliness of court filings. Electronic hearings for routine or consent motions will also reduce cost to both the court system and the parties involved.

Cooperation keeps system moving

As paradoxical as this may sound, cooperation is incredibly important in litigation. Adverse parties may disagree on every substantive issue but in order to move a lawsuit forward, cooperation on procedural matters is required. When a litigator is uncooperative, non-responsive or engages in procedural gamesmanship, the end result is higher cost of services to both clients as well as a delay in progression of the lawsuit.

While this has always been true, COVID-19 and the shutdown of our courts/court reporting offices has brought the importance of cooperation into focus.

“For the court’s processes to be successful, judges and masters will require lawyers and litigants to act co-operatively and to be flexible to achieve a timely, just and fair hearing,” said the Ontario Superior Court of Justice in a recent Notice to the Profession. This is what the courts and our clients expect of us: To be flexible and cooperative with respect to any matter that is not substantive in order to achieve “a timely, just and fair hearing.”

There has been a greater degree of cooperation amongst litigators over the last few months. The result has been that lawsuits have not stalled. Instead, they have moved forward, resolving when appropriate and moving closer to trial when the parties are unable to meet in the middle on the substantive issues in dispute.

Just about everyone in every industry is going through change because of the pandemic. It has forced us in insurance litigation to work in ways we have never before. But this is change for the better. Hopefully these outlast COVID-19.

Ari Krajden is a founding partner of Kawaguchi Krajden LLP. Ari has been litigating for close to 20 years and is a certified specialist in civil litigation.

Feature image by iStock.com/PhonlamaiPhoto