In this two-part post we’ll look first at courts’ varied responses to the coronavirus (COVID-19) pandemic. Next time, we’ll examine the implications for different constituents, as well as what to expect when shelter in place restrictions are lifted.
Courts at every level have postponed, changed or canceled proceedings in response to the spread of coronavirus. The legal community is grappling with how to attend to client needs and litigation schedules when gathering in a room together is no longer an option. With guidance from courts changing daily, if not hourly, the ultimate effects of the COVID-19 pandemic on the administration of justice remains to be seen.
On March 27, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) became law. It includes several provisions related to the judiciary. Notably, it allows the chief judges of federal district courts to authorize the use of video or telephone conferencing to conduct certain criminal proceedings. The US Judicial Conference has temporarily approved the use of video and teleconferencing of certain criminal proceedings and teleconferencing for civil proceedings.
But there is no single solution nationwide. What we’re currently looking at is an evolving court landscape of risk, litigation, coverage and compliance.
Changes to court operations are being made on a rolling basis, with constant adjustments on a state-by-state basis and even from court to court within some states. However, according to the National Center for State Courts, the most common modifications being made by state courts to combat the coronavirus include:
The Supreme Court’s historic decision to allow live audio has spurred more appeals courts to allow live public access to oral arguments, although appellate courts have generally not changed the format for their remote oral arguments. On May 4, after a two-month hiatus caused by the coronavirus epidemic, the Supreme Court used conference calling to resume hearing arguments for cases postponed due to shelter in place orders. In an unprecedented move, Ruth Bader Ginsberg took part in the second round of Supreme Court argument-by-phone on May 6 from her hospital bed.
Other courts and governmental bodies across the country are implementing coronavirus mitigation measures in their own ways. There are too many to list here, but consider this small sampling:
Helping address the complexities of so many, and so frequent, changes, a number of bodies offer compilations of COVID-19-related orders on special, pandemic-focused web pages. The National Center for State Courts includes a comprehensive ‘Coronavirus and the Courts’ summary; The United States Courts website provides a list of links to all federal court websites and court orders. Other resources include the National Governors’ Association and the National Conference of State Legislatures.
Closures, continuity and remote hearings
The U.S. Supreme Court building is closed until further notice but will remain open for official business purposes, with case filing deadlines remaining in place. Other appeal courts have introduced different measures. In the Federal Circuit Court of Appeals, all cases scheduled for argument during the April and May 2020 sitting will be conducted remotely. In addition, no physical hearings will be held during that period, and parties are no longer obliged to file paper copies of documents that have been lodged electronically.
These COVID-19-related court closures and the suspension of jury trials could raise constitutional concerns if they impact rights associated with access to court. At this time, however, it remains to be seen how the courts will resolve these tensions. The Western District of Pennsylvania court noted that protecting health and safety “materially outweigh” the defendant’s and the public’s interest in a speedy trial.
Meanwhile, it’s also good to note that judicial sanity prevails even under these trying circumstances.
After one party in a recent discovery dispute filed an emergency motion for a protective order to delay a deposition, the U.S. magistrate judge in the Southern District of Florida admonished the parties, “… we are living in an unprecedented situation. Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits ‘emergency’ status. No, it doesn’t.”