April 1, 2020 Letters
Tech in the Age of COVID-19
As an active member of the Bar, with a practice that spans the state, I am familiar with the general practice in many of our circuit and county courts. As we now consider the potential of the spread of the coronavirus and with the potentially devastating effects of contracting that disease, I wonder if we might utilize some of the contemporary technology at our finger tips to help reduce the potential of infection for our judiciary and Bar?
In a past life, while not a public-health professional myself, I was privileged to work beside and supervise a number of public-health programs which implemented practices and procedures similar to those that are being suggested to reduce the incidence of COVID-19.
Among the most important practices is, of course, effective hand washing, frequently. Effective hand washing requires washing with a good lather for at least 20 seconds to remove the maximum possible pathogens from the hands and then good rinsing to dispose of them down the drain. Believe it or not, this simple technique will have a significant impact both on spreading of the disease and on contracting the disease.
While hand washing is important, another means to minimize the spread of such viruses is to minimize the number of gatherings of many people. One infected person in a gathering can lead to many or all of those present becoming infected, thus “person to person” infection or “community spread” infection.
It strikes me that we in the trial practice are particularly vulnerable to such “person to person” or “community spread” exposure and infection. Especially those of us who frequent UMC’s or other crowded court events, such as arraignments, pre-trial hearings, etc. It also strikes me that many of these gatherings can be avoided relatively easily.
Some of the courts I frequent have already adopted voluntary telephonic hearings and I’ve even been offered a Skype opportunity in the past. While court-call is great, the costs add up quickly, though, even so, those costs seem likely to be perceived as cheap, when compared to the ultimate costs of becoming a victim of COVID-19.
Admittedly, evidentiary hearings, trials, etc., are not likely to be able to be effectively held telephonically or over internet protocol video, but, many of the hearings we participate in don’t require the production of evidence or testimony and can be easily held through such remote participation technology.
Can we now move to hold non-evidentiary hearings telephonically or over internet protocol video, such as Skype? We have the technology, we can do this, and in so doing, we may be able to slow or even avoid widespread infection in our profession.
West Palm Beach
Despite all the disaster recovery plans everyone has drafted and (maybe) practiced, the coronavirus outbreak has revealed how unprepared we remain. In this moment of statewide emergency, there is no cohesive voice, rules or guidance aside from the Supreme Court’s AO, which still left many items unanswered. For those with statewide practices, we had to look at each circuit’s website, search for announcements, and then determine how each court was handling each different type of matter.
We need a uniform “Emergency Dashboard” that shows each circuit, whether courts are open or not, and then lists each hearing type and its status. The fact that each circuit has its own website, with inconsistent designs and functionality is ridiculous. It’s equally ridiculous that each circuit has their own docketing system. The Supreme Court needs to exercise authority over all circuits and create one docketing and calendaring system for all of the courts. And each circuit’s website should use the same template with the ability to update information from a central command. I know every circuit has already invested heavily in their own system, but if ever we need (yet another) example of the need for one platform, this was it. Scrap what we have. Start over. Get one.
Other states like New York have done it. We can to.
I remember my first year at FSU Law as I sat in Professor Ehrhardt’s evidence class with over 100 fellow students. He announced that we would spend the next 10 minutes discussing the Hearsay Rule. And then announced that we would spend at least the ensuing two weeks discussing exceptions to the rule.
The premise of the Hearsay Rule itself is not earth shattering. The statement of a testifying witness as to what an out-of-court declarant told him or her, or a document without a verifying witness, is inherently unreliable and thus inadmissible, if offered for the truth of the matter asserted by the declarant, who is not available for cross examination in court by the party opposing the witness’s testimony.
But the rationale for the rule is offensive in its assumptions and applications. The fallible rationale underlying the Hearsay Rule is that the average juror is not smart enough to figure that out for themselves, and in their indolent ignorance will give a hearsay statement more weight than that to which it should be entitled. Thus, we must protect the ignorant, by preventing them from hearing or reading less reliable testimony, because left to their own doltish devices they may place too much weight upon it, and justice will suffer.
That may have been true 400 years ago (although perhaps even then it may have been an offensive assumption). The reality today is that a simple jury instruction that such evidence may be given less weight by a juror, in their own discretion, would likely suffice. And such a process would save large amounts of time by avoiding the endless hearsay objections that are argued throughout jury trials. Indeed, who among us as trial lawyers has not heard a judge in a bench trial overrule a hearsay objection by simply stating as to the proffered evidence that the objection merely “goes to the weight” of the proffered evidence? Jurors are equally able to process that concept. With all due respect, it is absurd to believe that judges can glean this proposition, but jurors cannot.
We trust jurors in numerous instances to understand that some types of evidence should perhaps carry more weight than other types, and that some evidence is more credible and other evidence is less credible. But when it comes to the Hearsay Rule, the knee-jerk reaction is “jurors are too dimwitted to comprehend how to apply these notions to hearsay.” Why? Because we have believed this to be true since the memory of jurisprudence runneth not to the contrary. And few are willing to confront the fact that maybe, after 400 years, it is time to change that notion.
Give a simple instruction to the jury about weighing evidence. Let lawyers make closing arguments. And please, give jurors some respect for mental acuity.
I must apologize for bewildering attorney Gary Beatty regarding the term “social justice” in my previous letter to the News. And yes, Mr. Beatty, I truly understand what it means.
Nonetheless, I have sought more academic expertise. Social justice is defined in the “Oxford Reference Dictionary of Environment and Conservation” as “the objective of creating a fair and equal society in which each individual matters, their rights are recognized and protected, and decisions are made in ways that are fair and honest.” Quoting G. Papageorgiou, “Social Values and Social Justice”, Economic Geography, Vol. 56, No. 2 (April 1980), pp. 110-119.
“Social justice requires resource equity, fairness, and respect for diversity, as well as the eradication of existing forms of social oppression.” Joe R. Feagin, “Social Justice and Sociology: Agendas for the Twenty-First Century: Presidential Address,” American Sociological Review, Vol. 66, No. 1 (February 2001).
Social justice is also built into the United States Constitution. The 14th Amendment provides, in part, that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.”
I am proud that the Bar has a Standing Committee on Diversity and Inclusion, which inspired its Real Property, Probate and Trust Law Section to institute its fellowship program with a goal to attract and cultivate a diverse leadership, as described in the March News. It is programs like these that will lead to an enhanced bench and bar inspired by social justice.
Recently, published letters highlight hopefully-rare situations where activist judges issue orders and rulings based on ideology, and not on the law.
Judges are not elected to revise laws, or to legislate from the bench. It is not their job to advance a political, social, or even personal, agenda by putting even a finger on the scales of justice. We elect judges to interpret laws, and apply laws to facts without bias, and in accordance with well-established principles. We expect judges to recuse themselves whenever faced with an articulable semblance of a conflict of interests. All of this is absolutely essential to the confidence we have in our judiciary.
Diversity, as the political-correctness advocates consider it, is nice, but competence and adherence to the law and judicial principles is vastly more important. Frankly, I care not about qualities of a judge that satisfy politically-correct concepts of diversity: but I care passionately about unbiased competence. Mistakes are made, and we have appellate courts to correct them, but intentional deviations from judicial standards threaten our form of government.
A judge who wants to be a social justice warrior should resign and run for the legislature or Congress. We do have some, but fortunately they are relatively rare. But even some, is much too many.