APRIL 2020 | AROUND THE ABA

Judges to lawyers: Be patient, justice will be served despite coronavirus

Three judges asked more than 300 lawyers to please be patient while their courts find new ways to hold hearings and administer justice during the coronavirus pandemic.

“What’s normal, what’s expected, what’s required is changing on a daily basis,” said Bankruptcy Court Judge Elizabeth Stong of Brooklyn, New York. “Today’s normal may not be normal by late this week.”

Stong and two other judges – the chief justice of North Carolina and a state judge from Indianapolis – plus a federal court clerk from Seattle spoke to the lawyers at “COVID-19 and Safe Access to the Courts: Strategies and Future Planning,” a webinar March 24 sponsored by the American Bar Association Judicial Division.

The judges and clerk described how they are coping with the pandemic. All spoke of emergency orders keeping nearly all staff, lawyers and litigants away from the courthouse. All described holding hearings by phone and video, sometimes awkwardly. And all said they expect more changes as the pandemic continues to wreak havoc on dockets.

“Be patient and understanding,” urged Judge Heather Welch of Marion County Superior Court in Indianapolis, chair of the National Conference of State Trial Judges within the Judicial Division. “Unfortunately, things will be delayed. The courts will still deal with emergencies, but we have a lot of things on our plates.”

The most important thing, all agreed, is making sure most lawyers and clients don’t come to the courthouse, but instead connect to judges and staff by phone or video. All the courts represented in the webinar are under orders to work remotely, but not all can do so easily.

On the day of the webinar, Stong was originally scheduled to hear 100 matters on a motions calendar. Instead, she held a hearing by phone, with lawyers at their desks – at home or in offices – and with the courtroom deputy and law clerk at home. Stong was in the courthouse with only one or two staffers in the building, plus marshals.

But in North Carolina, there is no easy statewide technology solution, said Chief Justice Cheri Beasley. From March 13 to 19, Beasley issued three emergency orders to postpone trials and reduce traffic to local courthouses across the state. How that will play out in the state’s 100 counties remains unknown. While holding phone or video hearings may be easy in cities like Charlotte and Raleigh, it will be much harder in the state’s rural counties.

“The resources are very different in rural areas,” Beasley said. “It’s been a desire of many folks – judges and lawyers – to be able to hold remote hearings through technology. But in some of our rural areas there is no broadband access, so that obviously makes it difficult.”

Bill McCool, clerk of court for the U.S District Court in Seattle, has been dealing with the crisis since early February, when the first coronavirus cases were discovered in a nursing home in nearby Kirkland, Washington.

On March 6, the chief judge in McCool’s court issued an emergency order, postponing all personal appearances at the courthouse through March 31, including jury trials, bench trials and grand juries. That has since been extended.

The initial order also called for minimal staff to enter the Seattle courthouse – just enough to handle the paper documents and payments that continued to arrive. Although about 80% of all court documents are filed electronically in his court, McCool said, 20% still come by paper, mostly from pro se litigants and prisoners. To handle those, staff created a self-service center in the court’s lobby – a physical drop box for people who can’t file electronically.

Today, gatherings of no more than 10 people are allowed in Washington state, McCool said. “As a result, we prepared to close the court office and only have minimal staff here to do the absolute minimum amount of paperwork and then go home,” he said. That was accomplished with an order on March 17. “So, in 11 days we went from one restricted operational state to a completely different and more restricted operational state.”

Beyond the legal impacts, court closures are having a devastating social impact on the legal community, McCool and Beasley said.

“I’m a very social person in my job,” McCool said. “The social isolation has been very difficult to deal with as a court leader. The only way I can reach my employees is by email, text or telephone calls. And to me, that’s very impersonal, but that’s the world that we’re living in now.”

Beasley agreed. Lawyers are used to being in the courthouse, she said, “especially in local and smaller areas. So much of community activity is grounded in courthouses and social aspects around that. … That social piece, I think, is important not just for the conducting of business but also in terms of our mental health and thinking about where we are and how we will go forward in addressing this pandemic.”

McCool wondered aloud what happens next.

“For me, the thing that is striking about all this – and I think everybody on this call needs to think about this – is: What is going to be the new normal for how we conduct ourselves socially? Are we going to remain 6 feet distant from anybody we talk to? Are we going to use handwash all the time, hand sanitizers, don’t touch our face?

“My closing shot is: This too shall pass. We will all get through this – judges, lawyers, court administrators, deputy clerks. And when we do, we’ll have a whole new world to face in the court system.”

For more free COVID-related webinars, go here.