Courts could face legal tidal wave
Constraints may be needed to keep state’s legal system from being buried under backlog of cases after coronavirus threat passes
It was an extraordinary step by Gov. Ned Lamont in mid-April, issuing an executive order providing blanket legal protection to healthcare workers for any errors or omissions as they work to save lives during the coronavirus crisis.
Do the courts themselves need a shield from any pandemic of civil litigation as a result of contractual breaches due to promises businesses could not fulfill because of frozen operations or revenue? On that front, the jury is still out — but legal experts allow limitations may become necessary to avoid bogging down court dockets for years to come.
Heading into the 2008 collapse of the subprime mortgage bubble and the larger housing market, Connecticut’s state judges saw their civil litigation docket load rise by 40,000 cases over three years, a two-thirds increase.
With commerce screeching to a halt in many quarters as a result of the COVID-19 pandemic — and putting many commercial contracts into a state of breach by extension — should the Connecticut General Assembly intercede to set specific limitations on civil litigation, not unlike Lamont’s move to cap litigation against beleaguered healthcare workers?
“It’s something that’s been heavily, heavily discussed among members of the (Connecticut Bar Association) — and certainly with clients generally,” said state Rep. Steve Stafstrom, D-Bridgeport, a Pullman & Comley attorney focused on commercial litigation and co-chair of the Judiciary Committee of the General Assembly. “The areas where the legal community generally anticipates a
wave of litigation is on the landlord-tenant eviction cases and the breach-of-contract actions.”
Through a spokesperson, U.S. Sen. Richard Blumenthal indicated he is not aware of any deliberations in the Senate Judiciary Committee on which he sits for any limitations on coronavirus-related litigation in the federal court system.
Homeowner rights, human rights
The Connecticut Judicial Branch has not ruled out measures to make more manageable any flood of civil litigation when courts reopen in the months to come. Under the Connecticut Practice Book that runs more than 600 pages governing docket rules and procedures, courts have latitude in the assignment or dismissal of cases.
“Our top priority and focus right now is the safety of the public and our employees during this crisis,” stated Rhonda Stearley-Hebert, a Judicial Branch spokesperson. “Once we are able to consider moving toward resuming normal operations, we will assess the situation and deal with the outstanding cases accordingly.”
Like other states, Connecticut has existing bars that exist partially to vet disputes before they enter the court system. Most notably, the Connecticut Commission on Human Rights and Opportunities which weighs complaints on discrimination in the workplace and other venues. As the civil rights cause began to accelerate entering the 1960s, Connecticut vested CHRO with the authority to impose resolutions independent of any court order.
Most recently, the General Assembly interceded to forestall foreclosure seizures of homes after the 2009 recession, forcing banks to enter supervised mediation with borrowers over the span of months before filing any court documents to trigger a foreclosure. At the time, legislators pushed for the bill to both provide a relief valve to families on the brink of losing their homes and to avoid overwhelming state court dockets with eviction cases.
The program continues at a cost to the state of roughly $3.6 million from the Connecticut Department of Banking, supporting a staff of nearly 40 mediators, managers and supporting personnel.
“We actually are set up better to deal with some of those issues because of the programs that were put in place in 20082009,” Stafstrom said. “There’s obviously a temporary shutdown of the court process and also, certainly, on the foreclosure side, there’s a moratorium in place.
“But as those claims — whenever they are — start to cycle back through the system, and the system gets back up and running to process those types of claims, those existing programs and protections that we put in place in response to the 2008 crash will kick back into high gear.”
Stafstrom added, however, that he does not see the mortgage mediation program as representing a precedent or rubber stamp for any broader restriction of civil litigation from entering the court system.
‘Not set up to rewrite every contract’
A portion of any post-coronavirus burst of civil litigation might never see a court docket, given the ever-increasing inclusion of contracts that stipulate the use of mediation or arbitration to resolve differences, both in the pursuit of swift decisions to limit legal costs and to prevent grievances from spilling into view through public court documents.
And in cases where mediation breaks down and cases end up before an arbitrator or jury, some plaintiffs could find their claims headed off at the pass by the principle of “force majeure” included in many contracts — essentially that a breach was the result of an “act of god” that could not be foreseen or prevented — or a similar concept known as “commercial impracticability” in legal jargon.
“A significant amount of conflict and litigation could come from the impacts of the COVID-19 pandemic,” said William Logue, a professor at the Quinnipiac University School of Law who is an expert on alternative dispute resolution. “These are situations that will cause clients and lawyers to examine actions and contractual terms closely. Many lawyers are studying ‘force majeure’ clauses that they thought would never come into play.”
Noting the mortgage crisis surge caseload in Connecticut a decade ago, Stafstrom said state courts have already demonstrated the ability to absorb a massive surge in litigation, with other niche examples including asbestos claims which were steered into dedicated dockets with judges whose experience with the topic allowed them to expedite cases.
He added that while the global pandemic presents a challenge the state courts have never encountered, he believes the Judicial Branch will rise to meet it, triaging cases as necessary to keep the wheels of justice turning — both for cases currently on hold pending the reopening of court rooms and for any crush of new cases.
If the General Assembly has a role, it must weigh that role carefully given the constitutional right to due process under state and federal law.
“There’s the question of where does statutory authority end and judicial authority begin,” Stafstrom said. “A legislature is not set up to ... ‘rewrite’ every contract. The branch is going to have to work through these on a case-by-case basis.”