The Health Emergency and Personal Injury Litigation

All aspects of the practice of law have been impacted by the Covid-19 pandemic. From suspects who must appear in front of judges by video rather than in open court, to law-mandated board meetings that must now take place by Zoom, to the signing of Wills remotely rather than in person, much has changed. This includes, in ways large and small, personal injury lawsuits.

To start at the beginning of a personal injury case, we practitioners will always ask when your accident happened. That is because most personal injury cases are based upon a negligence standard and the 3-year statute of limitations for such an action starts to run on the day of your accident. How has the statute of limitations been impacted? One of the very first Executive Orders issued by Governor Cuomo was that he stopped [in the law it is called tolling] the running of the statute of limitations. So, if there were 30 days left to start a personal injury lawsuit when the governor stopped the statute from running, when he starts it again, there will still be 30 days left.

Closely related to the statute of limitations is the actual start of the personal injury case. In 52 counties of New York State, including all of the Hudson Valley, a case is begun from an attorney’s computer. A summons and complaint can be filed electronically with the county clerk. Because of the virus, the Chief Administrative Judge has ordered that NO papers can be filed [with some exceptions slowly starting to appear]. And those exceptions change quickly. As of May 25, 2020, new cases can be filed across New York State.

How does this effect cases already in the court system? We litigation/trial lawyers are still not allowed in the courthouses. Initially, deadlines that already existed were also put on hold. The Court eventually issued a directive asking us attorneys to work out matters as best we can but within all of the new health rules, not the least of which is social distancing. Often a case claiming personal injury will involve very personal matters, and only a discussion face to face will work. Many cases remain almost at a standstill.

Most attorneys are not in their offices, much less their conference rooms, so getting day-to-day work accomplished remains something of a challenge. That means different approaches for different issues. For example, one of the most important parts of any personal injury case is the deposition. This is normally held at an attorney’s office where the court reporter, the injured party, the party being sued, their attorneys and perhaps others gather around a conference table and questions are asked and answered. Right now, other than by video, depositions can’t happen as we can’t comply with social distancing rules.

Finally, are cases being settled? Short of a trial, cases are resolved by a negotiation between the lawyer for the injured party and the attorney and insurance company representing the liable party. If it is happening, it too is at a much slower pace. Lawyers on both sides are now working from home, and insurance adjusters are also working from home. Evaluating files is more complicated and insurance companies are all too ready to keep things moving at a snail’s pace. That leaves it up to the lawyers for the injured plaintiff to work in this new environment to make things happen. For example, I have an arbitration which is going to happen in September. Had I not stayed after the arbitrator and the insurance company, this case could have fallen through the huge opening caused by the virus. Instead, I look forward to a full and productive hearing with the case being resolved.

The personal injury bar is adjusting to helping our clients in this new normal. Feel free to call for a free consultation about your personal injury claim.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.