As a defense attorney, I firmly believe we are all in the resolution business. The pandemic has forced us to alter how we look at resolving cases. Instead of the usual steady tidal action of cases going to court and eventually settling during pre-trial conferences or on the eve of trial, cases get stalled at the proverbial courthouse steps. The courts have been closed or operating at a significantly reduced capacity over the past 13 months. A reduction in judges, court personnel and jury trial limitations because of COVID-19 protocols has considerably slowed personal injury settlements in court. Even now that the courts are open for trials, there are so few trials that they are the exception and not the norm.
There are mixed results for settling cases during the pandemic. Anecdotal evidence suggests that insurance companies are not upset or uncomfortable with the scenario of fewer cases settling as it allows them to continue to delay paying claims and using the money for reserve purposes. Because the filing of new cases in New York was approximately 25% less than the year before, increasing caseloads for insurance adjusters are not driving settlements as pending cases are relatively stable. Also, there is a commonly held misconception that defense attorneys do not want to settle cases. After all, every settled case represents a lost chance to bill and reduces the number of pending cases a firm has. There has been some truth to that notion over the years, and plaintiff attorneys have long accused defense attorneys of not relating their interest in resolving cases. While several of the insurance companies that we represent have used the pandemic as an opportunity to settle cases, plaintiff attorneys have said that insurance companies are trying to make lowball offers and settle cases for less than their full value in order to take advantage of hard economic times and plaintiff’s need for money.