Wheels of justice and the pandemic | Joshua Tayar
Thursday, July 09, 2020 @ 12:54 PM | By Joshua Tayar
The courts did not have procedures in place to handle their large caseloads in the midst of a pandemic. Major procedural reforms may become necessary to ensure that everyone gets their day in court without undue delay. The courts need to have procedural rules regarding the use of technology for all types of legal proceedings — depositions, motions, trials and so on.
Courthouses closed their doors during the pandemic and many courts have been operating through chaotic teleconference and videoconference meetings among litigants, lawyers, judges and others. Many courts have reduced their services to hearings on urgent matters only and so judges are scrambling to move high priority cases forward via Skype or Zoom.
Once the courts resume full service, there will undoubtedly be a pent-up demand for access to court services met with an insufficient supply of judicial resources. Arbitration is a potential solution to the ever-growing court backlogs. Provided that plaintiff and defendant agree to arbitration, they may appoint an arbitral (non-governmental) tribunal consisting of any individuals of their choosing to hear and adjudicate their dispute.
Arbitration affords the parties and arbitral tribunal almost complete control to establish tailor-made procedures which they all will be required to follow. That flexibility is conducive to resolving disputes expeditiously. Equally important, the arbitral tribunal members are appointed to hear one particular dispute, so they do not have a backlog of other cases slowing them down. The individuals who are appointed freely choose whether they wish to serve on the arbitral tribunal and will presumably only accept an appointment if they have the time available to fulfil their duties in a timely fashion.
Unfortunately, once a dispute arises, each litigant becomes cautious about agreeing to any proposal made by their adversary. Moreover, plaintiffs are generally much more eager than defendants to move cases forward: most plaintiffs want to obtain compensation from defendants for perceived losses as quickly as possible, whereas most defendants are content to see the claims against them put on hold indefinitely.
The wheels of justice of the court system are turning slower than ever for many litigants whose lawsuits are currently in limbo during the ongoing pandemic. Those litigants may question whether the wheels of justice truly do grind exceedingly fine.
Joshua Tayar is the principal lawyer at The Law Firm of Joshua Tayar. The firm’s focus is in the area of commercial arbitration.
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