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COVID-19 and The Legal World: James S. Bostwick Speaks

Author James S. Bostwick discusses how the legal world is adjusting to COVID-19.

  • How does COVID-19 alter the American court system?

Not even a world at war has had such a profound impact on the system of justice in America.  All Federal Courts from local districts to the Supreme Court have essentially stopped work on pending cases.  The State Court system has stopped hearing all but “essential” cases and those are being heard by phone.  Criminal cases are in limbo, the constitutional right to a speedy jury trial cannot be accomplished without placing participants at risk.  Civil cases have been postponed for varying periods of time that may ultimately become indefinite.  Custody issues, divorces, contractual disputes and injured citizens are without the remedies they had hoped and planned for.  Each County court system in this and other states has issued new rules and regulations for litigation in their jurisdiction.  They all are different – there is little or no consistency.  When and if the business of dispensing justice can resume, the backlog will be extreme.

  • What’s the justice system’s “new normal”?

The immediate new normal is indefinite delay.  Many motions scheduled to be heard were delayed a week, then a month, now perhaps in the summer.  Courts are trying to hear “essential” motions, but every county does it differently and no one knows what is “essential”.  Jury trials have all been put on hold or reset 30 to as much as 90 days in the future.  When and if you can reach someone at the court they may or may not be able to answer your questions.  Criminal matters are in Never Never Land – Defendants that would normally waive time are now refusing to wave time and the courts are unable to provide them with a speedy trial without violating the “work from home” and “shelter in place” mandate or putting them and court personnel at risk.  Every day this continues the “new normal” changes to a “newer normal”.

  • Are you called for jury duty? What you need to know.

The courts are not calling citizens for jury duty on civil cases at all.  If you were called before this shutdown order, then when you contact the jury commissioner for a civil case your service will be deferred.  If a criminal case must be tried then some courts may summon jurors, but there will be special precautions taken to assure no one is subjected to exposure.  The decisions about how to handle jury service during the continued shutdown have not been finalized in most venues because the duration of this pandemic crisis is a moving target.

  • What will America’s justice system look like post COVID-19?

Of course, the hope is that the curve of new infections will be “flattened” and, perhaps by this summer, things will start getting back to normal.  However, until there is an effective vaccine there will still be continued risk of new outbreaks.  We don’t know if this virus will have “seasons” or always be present in the community.  We don’t yet know if those that have been previously infected have developed immunity.  Those that avoided infection will clearly be at risk.  If the virus mutates then everyone may be at risk and the vaccine not as helpful if at all. There are too many unknowns at this point to assume that this crisis will have an endpoint and that the justice system will be able to resume functioning as it has in the past.  It is very likely that most pre-trial court proceeding will be accomplished remotely. Lawyers preparing for litigation will be using Zoom or other remote video communication to take testimony, prepare witnesses and meet with clients.  Court hearings and trials will be by phone or video.  Jury trials are guaranteed by our federal and most state constitutions.  They may have to be conducted remotely for the safety of the participants.

  • What does ‘Justice Delayed’ mean for everyday people?

We have been blessed with one of the most fair, effective and impartial systems of justice in the world.  It is not perfect, but most objective observers conclude it surpasses any judicial system used in the past or presently functioning elsewhere.  The three most important pillars supporting its structure are judicial independence, the jury and its relative efficiency.  People from all walks of life will at one point or another depend on this system to provide solutions to everyday problems. They or members of their families will need its help to solve custody disputes, separate property in business or marriage, referee business disputes, allocate responsibility in disagreements, estimate damages, provide economic aid to help people that have been wronged and establish future economic stability for the injured, if appropriate. For those ordinary individuals who have carefully prepared their case and have waited patiently for their day in court, resolution will allow them to finally go on with their lives.  The defendant in a civil case needs to know whether they are liable or not.  The owners of small businesses and their employees need to have a conclusion to their case so business can continue.  Parents and children need guidance as to custody and finances in marriage dissolution. Exhausted mothers who have been caring for their damaged spouse or children need to know if they are finally going to get enough help from those that caused the harm to provide some security for the future.  That hope for a solution that is provided by the justice system has taken a huge punch to the gut.  Tens of thousands of cases are suddenly in limbo.  Maybe their case will only be delayed six months, maybe a year, or maybe indefinitely.  No one really knows.  And – if we try to start things up again too soon, the cost in lives could be staggering.

  • 6 things lawyers can do now to reduce the impact of COVID-19.

1)    Follow the separation guidelines scrupulously so that we and the people we work with are safe and thus do our part to “flatten” the curve.

2)    Set up our staff at home with effective equipment and encourage regular remote interaction so the cases can continue to be prepared.

3)    Open and then continue candid dialogue with our adversaries so that interactions become more efficient and both sides can continue to work toward resolution.

4)    We as lawyers need to remember that our counterparts/adversaries have the same problems we do – problems with staff, with overhead, with income, with nervous clients.  These are mutual problems we need to work together to solve.  Working together to deal with this unprecedented situation, developing innovative solutions can all be to the benefit of both our clients and the system.

5)    Lawyers must remember that they are first officers of the Court.  We must recognize the court system, the clerks, judges and other staff are faced with unparalleled circumstances.  We need to work with them, help them with ideas and recognize they are in territory that is just as unfamiliar to them as it is to us.  Communicate your ideas and experiences with leaders of the bar so they can work with the court to find solutions.

6)    Don’t be discouraged or panic and don’t take advantage of anyone who has – reassure your staff and help them in this trying time, communicate with your clients and try to reassure them as much as possible without giving false hope and remember to take good care of yourself, your family and your friends during this extraordinarily difficult time.

  • What does a remote jury look like?

Eventually, in order to provide a jury trial, the courts may have to create safe zones for jurors who will observe the trial on television rather than in the courtroom.  Witnesses will testify from a conference room with the players on split screens showing the judge, the lawyers and perhaps other key personnel.  The jurors may not even be seen by the participants.  The administration of justice will have become remote, more akin to a Hollywood production than the very human, personal drama that is a jury trial in America.  In a desperate bid to deal with this crisis, but still maintain the constitutional right to a jury, we may lose one of the most important elements of the system.  The essence of a jury trial is the gathering of citizens from all socio-economic levels and walks of life.  This cross-section of our society meets together and acts as a community.  They have a remarkable opportunity to evaluate other human beings in the flesh – parties, experts and witnesses, all under the watchful eye of a robed judge and subject to close examination in the arena of the courtroom.  This is where the truth becomes evident – where people reveal their souls – up close and personal in the crucible of justice.  The jury trial is revered in the American system of laws and our broad use of this method of dispute resolution is essentially unique.  For the ordinary people of our country it is the great leveler of the legal playing field.  We don’t want our future decided by a judge who might feel they owe their existence to the system. We want the combined wisdom of other people like us to sit in judgment.  Unfortunately, a decision rendered from a pestilence inspired cocoon, after a TV production, and without any real human to human interaction will just not be the same.

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