COVID and the Courts

The COVID pandemic has affected all aspects of our lives. Our workplaces, schools, religious institutions, social venues and restaurants have adapted to meet social distancing requirements in efforts to limit the possibility of the spread of the virus. Courts have been particularly affected because shutdowns, remote staff, and in-person limitations have slowed the administrative work of the justice system.

The biggest effect of COVID on the administration of justice has been on the criminal side of court operations because of the suspension of juries. Juries require individuals to sit in close proximity to each other. On the civil side of the court, the lack of in-person juries has stopped trials from moving forward unless the parties agree to waive jury trials. Such jury-waived trials are held remotely, which poses a new set of rules and procedures for admitting evidence. While courts have slowly reopened, the return of in-person juries remains uncertain because the probability of suspending trials remains high if a juror tests positive for COVID and needs to quarantine.

As more courts move to re-open, the backlog of criminal cases will need to be cleared first because accused individuals who are incarcerated are guaranteed speedy trials. This prioritization of the criminal docket will further delay civil trials. Also, in the District and Housing Courts, moratoriums on evictions have caused a large backlog that the courts are dealing with on a first-come, first-served basis. The result is that summary process evictions that once took less than two months to resolve now languish on hold for much longer.

To address these realities, courts have established electronic hearings using platforms such as Zoom to deal with motions and status conferences. These virtual case management hearings will likely continue post-COVID as they are popular and create efficiencies. Attorneys who used to spend hours in courtrooms waiting for their cases to be heard are now able to work from their offices (or home offices) and simply un-mute their microphones when their cases are called. Courts have done a good job managing these virtual meetings. In addition, courts are strongly recommending that parties engage in mediation or alternative dispute resolution to settle civil cases, with some courts mandating mediation prior to scheduling next events.

Many courts have established electronic filing methods for parties to file pleadings. While there is a lack of uniformity amongst courts, and not all have embraced technology, it is definitely a trend. In addition, emergency filings or motions are available for in-person hearings; however, the process is different because judges are often working remotely and communications are handled telephonically, or via Zoom or other real time video conferences. This reality has created a host of new issues such as the process for delivering exhibits or questioning witnesses. Court clerks, attorneys and support staff have become quasi experts in file sharing and placing witnesses in virtual waiting rooms as they await their turn to offer testimony. Despite significant progress since the pandemic began, there are still some courts that lack stable and consistent wireless internet access. The COVID crisis is forcing these courts to modernize their internet capabilities.

The welcome news of effective COVID vaccinations may provide a light at the end of the tunnel, but the courts’ backlog will be felt for years to come. Courts’ limited budgets and staff will be focused on adjudicating criminal matters before hearing civil cases. For civil litigants, whose cases may be backlogged for years, this may lead to more settlements to achieve finality and move on. Clients engaged in litigation or contemplating a lawsuit must balance the interests of their claims against potential defenses, as well as the added time courts now take to hear cases, to determine their best course of action.