Everyone talks about how they are going to take care of business when life gets back to normal. After five months of quarantines, executive orders, and emergency procedures, its time to wake up, smell the coffee, and realize that this is what normal is going to look like for the foreseeable future. It’s also time to recognize that we all need to figure out how we are going to make life go on in the face of what we call the new normal. No, where it that more important than in the court system and legal profession. It’s time to get innovative and figure out how we continue to offer legal services and resolve cases while keeping everybody safe.
In March, when the city and state governments started to issue a shelter in place orders and shut down restaurants, gyms, and other businesses, we all thought that this was going to be a short term fix for what seemed like at the time a very temporary problem. All but people working in essential services were encouraged to stay at home. At the same time, the courts began issuing orders that virtually closed the courthouses to the public and ground the legal system to a halt. All but the most critical functions were closed down.
The court system in this country is how we, as a civilized people handle out disputes. For this very reason, the people who work in the courthouse and the legal profession are essential personnel. However, concern about the spread of CoVid-19 has made it difficult for the court system to do its job. Under the emergency orders, judges cannot hold court, impanel jurors or move its caseload. While the economy has opened back up, the courts are moving at a much slower pace. As Chief Justice Harold Melton said in his address to the State Bar of Georgia, “The difference between courts and restraints or gyms is that we make people come to court. They don’t come into the courthouse because they want to. We have a higher duty to ensure their safety.”
Shutting down the court system was the right decision at the time. However, the problems that people bring to the courts to resolve did not stop with the shutdown. As time goes on, the backlog of cases mounts. In Georgia, we are on the fourth extension of the original emergency order, and based on the data, there is likely to be the fifth extension. Each extension order has relaxed some of the restrictions and encouraged lawyers, parties, and judges to finds ways to move cases forward. To get back to business, there needs to be a good deal of innovation and change.
Lawyers and judges, by the very nature of the profession, are problem solvers. They take conflicts between people and either try to find creative solutions to the dispute or present the matter in an orderly fashion to a judge or jury for them to come up with a solution. On the other hand, lawyers and judges are resistant to change, especially when it comes to the practice, procedures, and the rule of law. For the most part, that is a good thing. The laws regarding the practices and procedures in court are time-honored and tested methods that ensure that disputes are handled fairly. The challenge for the courts is to innovate and adapt in such a way that it can move the crushing backlog of cases, ensure that disputes get resolved fairly and impartially, and everyone can maintain proper social distance. To accomplish this, there needs to be a greater reliance on technology, collaboration, and alternative dispute resolution.
Amongst the bench and bar, there as a broad spectrum of skills and understanding when it comes to technology. While some lawyers have automated their practices and work completely paperless, others are avowed luddites and resent the fact they have to file documents with the courthouse by computer. Many judges are the same way. Just as the law improved with the integration of the typewriter, telephone and fax machine, computers are now an integral part of the practice of law. While many lawyers and judges are still struggling with e-mail and transferring documents, the need for social distancing mandates the use of video conferences.
The challenge for lawyers, judges, and their staff is to get good at using the available technology and implementing it to resolve cases, whether or not they want too. While the bench and bar may not like change, they are required to keep up with changes in the law. The implementation of technology as a part of practice and procedure is no different. The courts need to push lawyers and parties to use technology for settlement conferences, mediations, and hearings. The courts and the legal services industry need to be a driving force to improve the technology to get past the annoying glitches as well as improve the way we can hear and move cases.
There has to be more significant legal of collaboration between the bench, the bar, the court staff, litigants, and even the technology industry. While some lawyers have always made a reputation out tough, stubborn fighters, to move cases in the wake of a global pandemic, there needs to be a higher level of cooperation beyond the ability to agree to disagree. There is no reason why two lawyers cannot come together to create a framework that they can use to resolve a disputed matter fairly. It requires may require a good bit of creativity and most certainly will not be a “one-size-fits-all” solution. Lawyers and judges should be able to come up with a plan to streamline a case to use the least amount of the court’s precious time resources while ensuring each side gets fairly heard.
The bench and bar also need work with the technology industry so it can see the unique needs of the legal system and offer products designed to the needs of operating a court system instead of just using off the shelf products developed for business meetings. While Zoom and WebEx are excellent platforms to conduct hearings, there are limitations in presenting evidence to a court in a hearing. Furthermore, the courtroom setting offers some acoustic challenges to having hearing s with multiple parties on a single video screen.
Ultimately, the courts need to increase their emphasis and reliance on alternative dispute resolution move cases. For the past three decades, courts have mandated that litigants participate in mediation before a lawsuit is set for a trial. Many use mediation as a way to get cases settled fairly and at much less expensive than a trial. However, some still see mediation as a ticket to punch before getting to trial. With a backlog of cases that increases exponentially every day, the reality is that it may be years before many cases ever see the inside of a courtroom. Most court cases do not get better with age, and mediation is much more conducive to a video concerning and social distancing that court.
Some mediators pioneered the use of teleconferencing and video conferencing long before anybody ever heard of the terms CoVid or social distancing. Platforms like Teams and Zoom are much more conducive to mediation than a courtroom. With that, the courts and parties need to look at other means of alternative dispute resolution. The Courts can appoint special masters to deal with smaller disputes within a case, such as discovery. At the same time, lawyers can look to the appointment of arbitrators to hear some of the more complex cases at the convenience of the parties and not the judges.
The great challenge to the court system at this time is to move cases forward while the world around us moves forward during this global pandemic. While some of these may be temporary solutions to a current problem, we may discover vast improvements in which the court can serve the communities that need them. The challenge for the bench and bar innovates and gets creative while ensuring that matters get resolved in a just, fair, timely, and safe manner.
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