As state courthouses in Pennsylvania enter their second month largely closed to the public, civil litigators in the Keystone State are finding themselves in a new reality where lawsuits are tricky to file, settlements are tough to process, cases stall in the doldrums of the shuttered system and nobody knows when, or even if, things will ever get back to normal.

Many civil attorneys say the situation is frustrating and court leaders should be doing more to help keep the civil justice process moving. Others say the shutdowns, which have been imposed to help combat the spread of COVID-19, have increased cooperation among the parties and offer lawyers the opportunity to harness their skills in new ways. But, from depositions to jury trials to office management, none of the attorneys say they are expecting things to return to the way they were.

"The law is no different than any other sliver of human activity," Pittsburgh attorney John Gismondi said. "Everybody is going to be operating in a new normal as a result of coming out the other side of this."

Shutdowns and Adjustments

On March 18, the Pennsylvania Supreme Court ordered all state courthouses to close. In the lead-up to that order, most local courts in the state had already begun shutting down, or limiting the services they provided, including suspending jury trials. Nearly all courts stopped hearing civil motions, or ruling on discovery issues; appellate courts canceled list after list of oral arguments; and civil attorneys were left wondering how their cases would proceed.

The state judiciary's broad closures came in contrast to the federal courts, where judges have continued to hear and rule on motions. Although federal courts also suspended jury trials and have limited access to the buildings, the courthouses have remained largely open.

The two different approaches have left some Pennsylvania attorneys upset that the wheels of justice in state courts have been greatly slowed, while the disruptions to the state system have only been minor.

"In nearly every way, the Pennsylvania court system is badly lagging behind New Jersey and the federal courts," one attorney who declined to speak for the record said.

Specifically, the attorney suggested that the Supreme Court should allow service by email and require discovery to move forward, and county courts should decide motions on the papers, or hold oral arguments by phone.

"Ninety-seven percent of the business of the courts don't involve jury trials and that business should move forward," the lawyer said.

Several other attorneys said their largest frustrations came from the fact that there is little uniformity across the state when it comes to accessibility and electronic capabilities.

One issue several attorneys mentioned is filing. Without allowing service by email, attorneys are unable to file complaints, but must instead file writs of summonses in their local courts. However, not all courts are open, and so in some instances, attorneys must file their writs with the local Superior Court. But, again this can cause confusion, since attorneys have reported having their writs rejected if they were not filed in the corresponding Superior Court district.

Northeastern Pennsylvania-based attorney Paul Oven of Dougherty, Leventhal & Price said that, in at least one courthouse, he's had to leave his filings in a bin outside the prothonotary's office, on "a wing and a prayer, hoping it's been filed."

"It's difficult and it speaks to the need to have a cohesive system at the counties when it comes to electronic filings and dockets," he said, echoing sentiments offered by several attorneys.

Slowdowns elsewhere in the government agencies that may affect liens or need state approval have also caused headaches for lawyers trying to hammer out settlements. And several attorneys also reported that it has been frustrating convincing opposing counsel to agree to a deposition over Zoom. Several attorneys reported either getting some pushback from opposing counsel or have seen long delays.

Cummins Law attorney Daniel Cummins, who is a defense-side attorney also based in the northeastern part of the state, said some plaintiffs lawyers have been slow to respond to requests for depositions, saying either they don't have full electronic access to their files or they are reluctant to handle things remotely.

"We're doing what we can to convince them to have it all keep happening now," Cummins said.

Philadelphia attorney Kevin Marciano of Marciano & MacAvoy said he's experienced similar problems, and will sometimes send opposing counsel tutorials on how to use videoconferencing tools so they can proceed with depositions or mediations.

"You can't sit back anymore and say I can't figure out Zoom, or I can't prep a client, or I need to sit next to my clients to properly represent them," he said. "You really need to adapt. There are great products out there."

Another frustration that cuts across both the plaintiffs and defense bars is that, when handling depositions electronically, typically the exhibits need to be emailed to all the parties beforehand, and that can take away the surprise element attorneys sometimes hope for.

"It's leading to more transparency and exchanging exhibits ahead of time; but you do lose the ability to have that fresh reaction from a witness," Oven said.

Although some plaintiffs attorneys said the slowdowns have caused a lag in settlement talks, several others said there appear to be incentives for both sides to come to the negotiating table now more so than ever. Insurance carriers, who need to withhold any money that could be subject to a claim, may be looking to free up some funds, while plaintiffs who may have found themselves recently unemployed, or having a hard time getting treated, may be eager to settle their claims as well.

One carrier, attorneys said, has even been contacting attorneys about possibly setting up a virtual "settlement day" in the hopes that multiple cases will be settled at once.

"I think you'll see low-ball offers," McLaughlin & Lauricella attorney Slade McLaughlin of Philadelphia said. "You'll see insurance companies trying to get a fire sale, saying, 'Take it or leave it, or we'll see you in six months.'"

Despite the frustrations, attorneys said they are also coming up with creative ways around the bigger stumbling blocks. For instance, in some cases attorneys are beginning to explore the possibilities of videoconferencing independent medical exams.

Others said the slowdown has given them more time to comb over their caseloads to see which could benefit from an additional deposition or supplemental discovery.

"I get to sit down and do a deep dive. There's plenty of workup to do on the files," McLaughlin said. "I'm not wasting time. I'm digging into the files and working hard. Once it's all over, I will be in better shape than when it started."

Jon Ostroff of Ostroff Law in Philadelphia said he has also been working to leverage his contacts in the health care realm and his negotiation skills to purchase and donate personal protection equipment at area facilities where it is needed most, and he has been taking the unique employment challenges to connect with staff.

"We saw that as an opportunity to show them we're with them … to let them know our village is very much intact, and they've been paying it back with great work," he said. "In each adversity there is an opportunity. The opportunity here is to really galvanize the relationships we have with staff, our clients and the community."

Court Changes

Several other attorneys agreed they would like to see the state courts begin ruling on motions, or holding arguments through video or phone conferences, but nearly all also said that recent orders have been encouraging.

The Pennsylvania Superior Court is also working on plans to begin holding oral argument for cases where the sessions were initially canceled. On April 8, the Philadelphia Court of Common Pleas was the first to issue an order calling on civil litigators to hold video or phone depositions whenever possible. Since then other courts, including the Bucks County Court of Common Pleas, have entered similar orders.

"It was good to see encouragement to the attorneys to continue to take depositions and move things forward in discovery," Cummins said, noting that the Lackawanna and Luzerne courts have made similar moves. "That's a step in the right direction; a step towards trying to return to some sense of normalcy."

And according to a spokesman at the First Judicial District, more changes could be coming to Philadelphia. Gabriel Roberts, a spokesman for the First Judicial District, said the court and the bar have been working together to establish a protocol for hearing motions.

"There are several joint efforts underway to begin holding appropriate virtual conferencing for motions that require hearing or oral argument," he said. "In addition, the court has been reviewing and ruling on currently assigned motions that do not require a hearing or oral argument."

Attorneys also said some courts have already been holding video conferences for oral arguments on motions, and Gismondi said that, although the Allegheny County court has not entered a similar order regarding depositions, the court has set up several email portals for attorneys to begin filing civil motions.

"That's a big plus," he said.

The Long Haul

One thing remains clear: even after the courthouses reopen, things will not be the same.

To begin with, several lawyers said they are expecting to see a significant dip in cases in the coming months.

"Nobody's getting in cars, elective surgeries are down," Gismondi said. "Obviously, the number of cases out there will decline. There's no question."

Several attorneys said they believe the technology that becomes commonplace during the epidemic is likely to be implemented on a wide scale, which could help reduce unnecessary travel or time spent sitting in court. But, attorneys were unanimously concerned with the fact that for a long time to come juries are likely to be reluctant to serve.

"How many jurors are going to want to come in this month, or next month, and sit in a jury assembly room with 200 other people?" McLaughlin said. "People are going to say, no way."