The Hardest Part to Pushing a School Liability Case Right Now
Amid the COVID-19 pandemic, many, if not most, cases have ground to a near standstill before New York's courts. And the reasons for this are, as a general rule, common, and cut across nearly all types of cases. Those reasons include the rules coming out of Albany that barred new case filings for several months, the ones only recently allowed the re-opening of law offices, and the gradual re-opening of some courts.
Granted, there were companion orders that extended/tolled the statutes of limitations and filing deadlines for these cases, but that doesn't alter the calculus that during this time, those cases and potential cases were forced to remain at a standstill.
In some instances, it forced lawyers and their clients to think of creative ways to continue pushing their matters forward, such as seeking ways to file their claims in Federal court (which remained open throughout) rather than State court. Other alternatives included pursuing arbitration - whose tribunals also remained open throughout - rather than the New York State courts. Of course, that wasn't - and isn't - always possible, for a myriad of reasons, including that relatively few cases are inherently able to be brought before the Federal courts, and arbitration - unless it's agreed to by both parties - isn't necessarily a viable option either.
One type of case has proven pretty much impossible to move forward, though.
School negligence cases.
Why School Negligence Cases Are Almost Impossible to Push Forward in a COVID-19 World
Unfortunately, when it comes to school negligence cases, short of reaching an early settlement of the case (and for a number of months, you couldn't even ask for court approval of a settlement) nothing is happening in their cases, and the answers why remain the same, and are straightforward:
- The schools are - and have been - closed, which means that the schools can't provide the records of the incidents needed to prosecute the case;
- No one has been available to appear for depositions on the schools' behalf; and,
- Even in cases where the discovery phase of the case has been completed (i.e., documents have been exchanged and depositions have been taken), there are no jury trials to be had right now
The bottom line: even if you decided to dispense with a jury trial (which may be an option in some cases), it's awfully difficult to prosecute a school liability case without the benefit of the schools' records pertaining to the incidents, and getting them on record as to their version of the events. Therefore, for the time being, absent an interest by the school districts in reaching an early settlement of the matter, there really isn't much the plaintiffs' attorneys can do to move their case forward toward its resolution.
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