Clients, lawyers, judges adjust to COVID where they can
With all the subtlety of a concussion, the coronavirus staggered Florida’s legal system in March, ending jury trials, most other in-person legal proceedings, and leaving judges, lawyers, and litigants trying to figure out how to keep going.
“I think initially a lot of us sort of froze in place, with our clients, the law firms, and maybe the courts trying to figure out this new technology,” said Bar Board of Governors member Sandy Diamond. “While we figure it out, it’s not business as usual. I think we have worked pretty hard to move our clients’ business matters forward.”
“For a while we all kept our fingers crossed and hoped this would get behind us and we would return to normal,” said West Palm Beach attorney Bill Hennessey, chair of the Real Property, Probate and Trust Law Section. “We’ve all come to realize we’re all working in a different day and age…. Now we’ve got to do things differently and move forward.”
One sign that adjustments are being made is that electronic filings through the court system’s statewide portal, after dropping nearly 30% in April and May, regained about a third of that in June and July.
And things are being done differently. Sometimes those new strategies are actually improving efficiency and speeding up legal work. Other times, there are bottlenecks and unavoidable delays that frustrate lawyers, clients, and judges.
An example of the former was cited by Andrew Arruda, an expert who recently addressed the Special Committee to Improve the Diversity of Legal Services. He reported that many law firms had been reluctant to accept electronic signatures on legal documents, instead preparing the papers and then arranging for parties and witnesses to sign in ink. With the pandemic, they’ve accepted electronic signatures, with resulting efficiencies.
With bottlenecks, the problem, according to lawyers and judges, focuses mostly on a couple issues — the difficulty of holding jury trials and money.
“The cases that are settleable all got resolved within the first three months. People were focused on resolving matters that were pretty easy to resolve and that left the ones that are more difficult and more complicated and they’re not moving at all. They’re in limbo,” said Miami attorney Wiley Hicks, chair of the Trial Lawyers Section. “Without that hammer of knowing the case is going to trial, cases are just languishing.
“I had a case that was set for trial last March. It’s been reset, tentatively in February, and I think there’s almost no chance, if the case doesn’t get resolved, it will go.”
The same is happening on the criminal side, said Criminal Law Section Chair Warren Lindsey of Orlando.
Although electronic hearings and working with prosecutors on reasonable release conditions are helping, “it’s been very difficult because the speedy trial rule has been basically abated right now,” he said. “When the courts were open and you had speedy trials, there were guardrails to prompt the orderly resolution of cases. For certain people, with the speedy trial rule being suspended and there not being vehicles for live trials, there are problems.”
“It’s not normal, it’s conducting business through a computer,” said Seventh Circuit Chief Judge Raul Zambrano. “It’s a different way of doing business, I can tell you that without a doubt, it slows down the process.”
While the 11th Circuit has made great progress with electronic hearings and other pandemic workarounds, “The trials are a problem,” said 11th Circuit Chief Administrative Judge Jennifer Bailey.
“Lawyers across the board in family, in criminal, in civil run their lives based on trial dates, yet trials happened in less than 3% of cases, so we are basically running our entire court system on an event that never happens,” she said. “When lawyers say they need a trial date, they need a date, not a trial.”
To encourage settlement, including of cases that might settle on the cusp of a trial, Bailey said the 11th Circuit has adopted a certification program to require all pretrial work to be done on such cases.
“In order to get into line for trial, everything in a case is done. All discovery, all motion in limine, all Daubert motions done. All procedural motions done. All jury instructions done,” Bailey said. “We’re not going to be able to give people a date certain for a jury trial. What we can do is make sure…that cases continue to move forward to trial and those cases that are going to settle just before trial because no one wants to pay the expense of writing jury instructions…can settle now.”
Resuming trials won’t be a miracle cure because with the required social distancing the number of trials will be limited. As the Trial Lawyers Section’s Hicks noted, elevators will be a challenge because getting a jury pool from the ground floor to an upper level courtroom, when only one or two can use an elevator, will be time consuming.
Bailey agreed, noting that Miami-Dade County has already had a successful jury test trial.
“I’m very satisfied based on the pilot we can keep everyone safe, but we’re just not going to be able to scale up trials at the level we traditionally did,” she said, adding the main civil courthouse will probably be limited to around three trials a week.
How much of a backlog there will be when trials can broadly resume is uncertain. According to estimates from the Supreme Court’s Trial Court Budget Commission, between mid-March, when most in-person court proceedings were suspended, and the end of June 1, 180 criminal and civil jury trials were delayed statewide. There are no figures on how many of those may have since settled or been resolved.
Palm Beach County Clerk of Court Sharon Bock said money is a problem, not just for trials but for regular clerk operations. She noted that statewide clerks started the year with a $459 million budget for their court-support operations. That has been cut by $59 million — so far.
Without a special $4.1 million appropriation from Palm Beach County, Bock said she was looking at laying off about 275 of her 475 court-support employees.
The money woes will affect the clerks, she said, as they address other pandemic-cause issues — a growing backlog of eviction and foreclosure cases now on hold because of moratoriums and attempts to resume jury trials.
But if the pandemic is crippling some court activities, lawyers, parties, and judges are finding other ways to adjust and at least get some work done.
“Lawyers by nature are very flexible and resourceful. I think all of the players in the court system — lawyers, judges, and their assistants — are trying different things and are trying to be creative to move things forward,” Lindsey said. “Some of the things that are working are hearings that are done by Zoom or Microsoft Teams [online meeting software]….
“When people start going back to court, that will be something that will continue in lieu of having in-person ministerial hearings.”
Everyone saves the traveling, parking (and paying for parking), going through courthouse security, and waiting for their case to be called, Lindsey said.
“Parties could literally lose several hours of their day,” he said. “They’re doing it and they’re able to do it more efficiently. There’s actually some good that’s going to come from this that will carry over to post-pandemic practice.”
And perhaps consequently it’s not surprising that parties — including criminal defendants — are using remote technology to attend court.
“A lot of people are using it. The majority of people have been able to make their court appearances in criminal, that’s pretty much normal in family and civil,” said Zambrano, the Seventh Circuit chief judge. “We’re very pleasantly surprised at the criminal defendants who want to participate.”
There have been minor glitches, the judge said, including having to hold up signs to remind participants to activate the audio on their computer and “we have often had to remind people that it’s required for them to wear a shirt, or get out of bed.”
West Palm Beach attorney Nick Curley said clients are also adapting to routine remote meetings with their attorneys.
“How often do you need to sit in the same room with your client? With most of them it’s a phone call anyway,” he said. “Even my grandparents know how to use one of the video apps.”
The hardest adjustment, he said, has been preparing for hearings that require extensive exhibits, all of which have to be prepared and distributed ahead of time.
“No more pulling it out of your back pocket when you’re in the room with them,” Curley said.
Sancha Brennan, who practices primarily probate and guardianship trial work in Central Florida, said electronic access has speeded up routine work.
“The judges are more available to deal with ex parte type motions and the turnaround has been fantastic,” she said. “We have proposed orders that are unopposed that are getting done within 24 hours.”
Bailey called it a “terribly exciting” time, terrible because of the pandemic but exciting because a normally cautious court system had to make changes that will ultimately be beneficial.
“We’ve been forced to innovate in creative and cost-effective ways that could produce really long-term improvements in terms of costs and access to justice,” she said. “People are showing up [online] because they can get on the phone” instead of traveling to the courthouse.
“One great illustration is that if you had told me before the pandemic I had to convince 123 judges in the 11th Circuit that they had to do all their hearings on Zoom, it would have taken the rest of my life,” Bailey said. “Now we’re doing all of our hearings, at least in civil, on Zoom.”
Eleventh Circuit Chief Judge Bertila Soto said, “I continue to be inspired by the willingness with which our judges, staff, attorneys and litigants have embraced and adapted to these changes, which have allowed us to continue to provide access to the courts during this pandemic. We will continue to innovate through technology and case management as we move forward.”
There are also other inspirations. As Curley, who largely works from home, put it: “I get to have lunch every day with my five-year-old daughter, which is a beautiful thing.”