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Business Law Section prepares for recovery

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Business Law SectionAfter helping thousands of Florida lawyers transition to home offices and sharpen their skills for COVID-19 litigation, the Business Law Section is turning its attention to recovery.

Beginning June 1, the section’s COVID-19 Pandemic Recovery Task Force expects to distribute a comprehensive survey to some 6,000 members that will help court officials prepare for an expected avalanche of business-related disputes.

Bart Valdes, a Tampa lawyer and task force co-chair, said the survey will ask members to assess where their practices are heading in the immediate future.

“For example, what type of cases do you expect to see in the next 6 to 12 months?” Valdes said. “What venue do you think they’re going to be? County court cases? Circuit court cases? Business Court cases? Federal court cases?”

The survey will also ask section members to predict whether their cases will require extensive case management or discovery, and to describe their biggest concerns about reopening the courts, such as a fear of infection or difficulty finding willing jurors.

Bart ValdesValdes predicts that the responses could be returned within seven to 10 days and forwarded to the courts not long after that.

“So we’re going to be able to provide feedback to the chief judges, the administrative judges, to let them know, hey, at least our Business Law Section members foresee that these are going to be the types of cases, and these are going to be the types of resources that we see we will need.”

On the same day, the task force expects to post on its website a white paper, “Commercial Property Insurance Claims in Response to COVID-19.”

The paper is written by Christopher R. Thompson of Burr & Forman with assistance from University of Miami Law School Professor Stephen K. Halpert.

The paper covers such things as standard business interruption insurance, civil authority coverage, litigation in response to claims denials, and includes recommendations to business owners with business interruption policies.

“It’s not on the side of the insurance industry, or the insured/consumer,” Valdes said. “It’s just so that if your client comes to you, and says, ‘I hear that I might have insurance coverage, could you look at my insurance policy,’ it helps the practitioner have a starting point.”

Valdes said the white paper will dovetail with one of the most popular of four CLEs the task force created — “Business Litigation in Crisis: Contract Enforceability, Business Interruption and Inverse Condemnation in the Wake of COVID-19.”

When section Chair Jacob “Jay” Brown and the Executive Council appointed the task force on April 2, the mission was to create at least one pandemic-related CLE. The task force created a comprehensive website and four CLEs, and the content continues to grow.

One CLE offers a refresher on bankruptcy, a sign of how rapidly the pandemic infected the economy, Valdes said.

“We went from an expanding economy with very low unemployment, when small and medium-sized businesses were expanding, and then in the span of a week to 10 days, we went to closures, and trending toward record unemployment,” he said. “We have practitioners who may not have had bankruptcy experience in a long time.”

Detra Shaw-WilderThe website was coordinated by Miami attorney and task force Co-Chair Detra Shaw-Wilder.

Wilder said the website was designed to complement the CLEs and serve the wider legal and business communities. The website includes articles dealing with such things as force majeure, the CARES Act, the Main Street Cares Act, and the Payroll Protection Plan.

“As a former chair of the business litigation committee, it was very important to me that we make sure that our members were able to hit the ground running and continue to be the effective litigators and advocates that they have always been, but using the new tools that are available to make an effective transition,” she said.

Shaw-Wilder is also responsible for judicial outreach.

By the end of June, the task force will post two judicial roundtables, one each with federal and state judges describing the latest plans for COVID-19 recovery, Shaw-Wilder said.

Where the task force’s earlier CLEs dealt with the nuts and bolts of using remote technology, the roundtables will be more “substantive” Shaw-Wilder said. They will address such things as which cases will receive priority when courts reopen, whether jury trials can be conducted remotely, and how big a role remote technology will continue to play in the “new normal.”

“One of the things we have to do as business lawyers is manage our clients’ expectations,” she said. “In business litigation some cases last many years, and it’s important that we let our clients know we may have had a trial date in the near term, but that may not be happening soon, or if we had jury trial scheduled, should we request a bench trial.”

Considering how well individual lawyers and the courts have adjusted to remote technology, Shaw-Wilder is optimistic that the courts will manage the backlog of cases.

As far as Shaw-Wilder is concerned, the legal community has a “toe at the threshold of recovery.”

“I think the mindset is that everyone is looking to coming out of sheltering and getting ready to take our steps toward the new normal,” she said. “We’re walking in that direction for sure.”

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