Among those litigators is Jeff C. Schneider, a partner at LKLSG in Miami, who focuses on several areas of the law in his practice, including bankruptcy, complex commercial and securities litigation. The trial lawyer has faced a challenge since jury trials in South Florida have largely been postponed since March.

"I'm seeing cases are not settling like they used to before because the threat of a trial no longer exists," Schneider said. "Defendants don't eagerly write checks. It doesn't happen that way."

'The real hammer'

The same could be said for California litigator Jon Waldrop, the managing partner at Kasowitz Benson Torres' Silicon Valley office. Waldrop represents industry-leading companies in patent and trademark litigation, including interactive web technologies, video-on-demand telecommunications and complex financial transactions.

"The uncertainty of trial is a pressure point you lose as a plaintiff to resolve cases early," Waldrop said. "It makes it even more complicated with patent cases."

And now, to navigate around the lack of pressure lost from uncertain trial dates and the constantly rising backlog of cases on the docket, Waldrop focuses on being more proactive about mediation while keeping the lines of communication open, including in a recently resolved case.

"I don't have the levers of a trial date taking summary judgment, motion, deadline and the like," Waldrop said. "I have to be much more intentional about how we keep talking and being strategic about our communications involving settlement."

Schneider said he had had a couple of cases in his 30-year career where the amount at issue in a matter was relatively small, and the cost of litigating causes both sides to seek a settlement. But for the most part, Schneider said the cases he handles have a "few more zeros," which has made settlement with the opposing side more complicated, especially during a pandemic.

For instance, generally, if the defendant believes a jury might award $20,000 on a case, it has no motivation to settle for $200,000. And defendants are holding out as long as possible, instead of settling on the eve of trial.

"The only way to get them positioned for settlement is to litigate them, come up with some fantastic stuff that really scares them, but even then, the real hammer is going to be a trial date," Schneider said. "I have had three mediations where I thought we would settle and we didn't and the offers were incredibly low compared to what we settled before."

'It's not going away'

But a leading defense attorney has viewed this period as an opportunity for plaintiffs' counsel to get a dose of reality.

Terri L. Mascherin, a partner at Jenner & Block in Chicago, has hit the ground running since the beginning of summer. Mascherin said that was when her jurisdiction adapted to administering the courts amid the coronavirus pandemic.

"There was a stretch of time in the late spring, early summer when everyone kind of hit pause, saying this could be a matter of weeks and we'll just wait," Mascherin said. "After enough weeks go by, you realize it's not going away and you have to figure out how to do things."

Mascherin, a former president of the Chicago Bar Association, focuses on complex commercial litigation, patent litigation, and her international arbitration practice. In these areas of the law, Mascherin works on both the plaintiff and defense side.

Since the start of the coronavirus pandemic, a majority of the cases Mascherin has litigated have been on the defense side. And even though Mascherin said her strategy of litigating these cases has not changed, the current legal climate is certainly working in her favor.

"We've been able to settle a couple of matters that made a big difference in that the plaintiff lost their trial date or a clear sight as to when the case will actually be tried," Mascherin said. "And that has helped us to get the plaintiff to talk seriously about settling because it has introduced a level of uncertainty."

Editors Note: This phenomenon is something we could see running rampant in insurance litigation. If there is no pressure to settle, it is unlikely that insurers will go above and beyond to settle.