COVID-19’s impact has gone far beyond efforts to mitigate its spread. In a breathtakingly brief period of time, public gatherings of all sizes were postponed or canceled outright, one-third of the world’s population went into government-mandated lockdowns and global stock markets experienced the biggest single-week drop in value since 2008, resulting in the largest global recession since World War II.
In the U.S., the fallout was particularly acute as hundreds of thousands of businesses struggled to implement virus-prevention measures or shut down completely, sending more than 40 million Americans to the unemployment line.
The Justice System has also been hit hard. Courts at every level suspended operations and froze dockets, pushing millions of hearings off until unknown future dates. To lessen the likelihood of contracting the virus, thousands of incarcerated and detained individuals were released early or without hearings.
Fortunately, the court systems are resilient and filled with intelligent people who have spent the last four months devising and implementing plans and procedures to ensure the health and well-being of participants while simultaneously protecting constitutional rights.
Unfortunately, one size never fits all, and until the virus plays out or a vaccine is developed, the situation will remain fluid. While it’s impossible to say exactly how things will shake out, courts will operate differently than before COVID.
Below are 7 new aspects of courts lawyers can expect when participating in a hearing or litigating a case:
1. Increased Electronic Filing
When COVID hit, courts nationwide closed down (except for the most essential cases like child protection). But they still accepted filings. Most courts already had established systems to accept documents electronically. In those instances, it was business as usual when documents arrived.
Unfortunately, some courts in rural areas had legacy systems that proved insufficient to handle the crush of filings. Other courts completely lacked the ability for electronic filing. In such instances, large numbers of filings ended up being late, misplaced by harried clerks, or just accepted however they showed up. I actually had one clerk instruct me to mail my documents to the court with a post-it note attached explaining that she and I had talked on the phone.
The silver lining to this cloud is that courts and attorneys everywhere are recognizing the importance and convenience of electronic filing and, as a result, will make improving their electronic systems a priority. Physically racing to the courthouse to file a document will soon be a distant memory.
2. Difficulties with Entering the Courthouse
Entering the courthouse will be more personally invasive and time-consuming as the staff takes your temperature. Complicating the issue is that different courts have different measurements for what constitutes a too high body temperature. In Texas anything below 100.4℉ is acceptable, but Utah requires a temperature below 99.6℉.
Imagine an attorney rushing into court on a warm day only to have her temperature exceed the allowable limit. Does the court wait to see if her temperature drops or is the case rescheduled?
The same problem exists with litigants, witnesses, and court personnel. A nightmare scenario could arise where a judge, moments before trial, receives news that she was exposed to the virus.
Elevators will become bottlenecks as occupancies are limited to one or two individuals per car. The same applies to restrooms.
3. More Remote Proceedings
The vast majority of proceedings—arraignments, motions, and pre-trial hearings—can be done remotely. This means that there will be much more remote proceedings via the internet.
State courts in Michigan are leading the way. Since the middle of March, they’ve conducted more than 500,000 hours of remote hearings. The State has even set up a Virtual Courtroom Directory, searchable by location, so the public can view hearings throughout the state.
Even the Supreme Court is getting in on the act. Justices recently held an oral argument via teleconference—complete with a flushing toilet in the background.
With no need to travel to and from the court, lawyers and can save — and their clients can save money. With an internet connection, attorneys can participate from anywhere, including the comfort of their office.
I do recommend that prior to participating in a remote hearing, lawyers conduct a practice run to ensure a good internet connection and make sure they know how to show demonstrative exhibits. I know of one attorney who experienced unfixable sound issues on his end during a hearing. An important case remains unresolved because the frustrated magistrate said, “Screw it. I’m pushing this off till we can do it in person.”
Remote proceedings in criminal cases do however present a couple of important issues. The 6th Amendment of the Constitution guarantees a “public trial” and the right to confront witnesses—things that can be difficult to do online.
Cybersecurity is another concern. Certain aspects of a trial like graphic photos and witness identities may be deemed closed to the public and thus attractive to potential hackers. Courts and law firms will have to take special care to beef-up tech firewalls and train employees in internet security practices.
4. Scheduling Delays
Court dockets are already overloaded and COVID is only making a tough situation worse. Immigration courts alone have a backlog of one million cases and growing by the day.
Passage of the CARES Act resulted in a widespread postponement of civil cases involving consumer credit, evictions, foreclosures, and domestic relations issues. Now that the Act has ended, courts can expect to be inundated by a surge of new cases.
A similar event occurred during the great recession of 2008 when state courts handled 1.5 million more cases than usual—a 20% increase. There was also a doubling of personal and business bankruptcies that added another 700,000 cases to the pile.
With so many delayed cases jockeying for docket space, attorneys and litigants can expect longer delays for court appearances. In April I had an important hearing for a case rescheduled for “some time” in February 2021.
Regardless of one’s opinion of the effectiveness of face masks, everybody in court is going to be wearing one. While this will reduce droplets in the air and, theoretically, reduce the likelihood of contracting the virus, it does raise a number of issues that will have to be decided:
- What if a person has a health condition making breathing difficult while wearing a mask? Are they forced to wear one, excused from appearing, or safely socially distanced from others?
- Per the Supreme Court, defendants in criminal trials cannot be made to wear a prison jumpsuit during trials. What about a mask? Might a juror attribute a defendant’s mask to the classic trope of “all criminals hide their faces”?
- How about a speaker with a low voice that is further muffled by the mask? Are they allowed to remove the mask to speak or will they have to communicate in writing?
- Lawyers and clients sit side-by-side and frequently communicate in whispers during the trial. Can they remove their masks to do so?
While each of these situations will be decided differently by individual courts, each has the potential for a lawyer to ask for a mistrial.
Before going into court, attorneys should practice speaking clearly and loud enough through a mask for the judge and jurors to hear. Witnesses should practice as well.
6. Courtroom Layout
Attorneys will need to know the layout of each courtroom before arguing a case. Social distancing specifications will require a rearrangement of counsel tables, judge’s bench, witness stand, and seating for court reporters, bailiffs, and clerks.
Jury boxes present a special challenge. Rather than seat the entire jury close together, some courts may opt to space individual jurors around the room. This creates a problem for attorneys trying to engage the jury. Instead of a convincing presentation, a juror might find a lawyer’s constant movement and glancing around the room distracting and even off-putting.
Additionally, sitting apart from other jurors may make it easier for a juror to grow distracted and ignore an important argument or piece of evidence—a great reason to move for a mistrial.
To solve the space issue, some court systems will limit the number of jurors required for a trial. Others are investigating holding hearings in non-courtroom settings like empty schools and other public buildings.
COVID is also changing jury selection. A call for jury duty typically means seating potential jurors in a crowded room for hours as they fill out questionnaires and wait to be questioned. Each individual will need to be socially-distanced from one another, requiring a much larger room than most courts presently have available.
Masks further complicate jury selection. To judge complex facial expressions, lawyers or judges conducting voir dire will definitely want to see a juror’s whole face when speaking with them.
There is also the issue of ensuring defendants are judged by a jury of their peers. According to the CDC, for a variety of reasons, COVID-19 has been more lethal to the elderly and Hispanic and Black communities. What happens if potential jurors in those classes are afraid of showing up to court?
As the situation unfolds, courts across the country will continue implementing new ways to operate post-COVID. And while no can say for certain just what those ways will be, attorneys will need to be prepared to function effectively in uncertain conditions. As Yankee great Yogi Berra once said, “It's tough to make predictions, especially about the future.”