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 Professional Liability: Swartz Campbell

There has been some speculation that, as a result of the stressors from the COVID-19 pandemic, we would see an increase in professional liability litigation. Has that proven true?

Not so far. Courts were generous with additional time and very forgiving about issues, like missed deadlines, etc., that arose due to the pandemic. Many cases settled because of the long delays (that could increase the recoverable damage), which is a bar to a legal malpractice action. Some courts were very aggressive about working through the backlog with scheduling trials back-to-back or double or triple booking and hiring remains difficult leaving many lawyers overwhelmed with work and short-staffed. This post-pandemic "catch up" activity is likely to be a source of claims.

The phenomenon that we have experienced that appears tied to the pandemic is an unwillingness of courts to grant summary judgment after cases had sat for months or years. For most of 2023 (as with 2022), we were double or tripled booked with multi-week trials, back-to-back, for matters that never should have survived summary judgment and likely would not have pre-pandemic. The cases progressed through the very expensive and labor-intensive trial submission and preparation process and then fell apart on the courthouse steps.