Courts around the world have been grappling for several months with the impacts of the coronavirus pandemic. There have been impressive responses to the multitude of problems facing the courts, including the creation and sharing of appropriate resources. For example, the National Center for State Courts is regularly gathering and updating much of this information at https://www.ncsc.org/pandemic, and the U.S. federal courts have posted information at https://www.uscourts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19. After reviewing many sources like these, in this blog post I am highlighting what I see are the short-range (next 8 months) major practical issues for the courts; in the next blog post I will assess what the long-range (2021 and beyond) situation may be.
The primary issue for courts right now is continuing to minimize personal contact between people to reduce the risk of spreading Covid-19 virus infections. This includes persons who may come to the courthouse as well as judges and staff at work inside. So far, courts have commonly restricted outsiders from entering courthouses via several measures:
- health screening people at public entrances (taking temperatures, asking questions about health status, etc.)
- restricting or suspending in-person proceedings
- restricting or deferring jury trials
- implementing greatly expanded use of teleconferencing and videoconferencing for hearings
- granting extensions of time for court deadlines (e.g., to pay fines and fees)
- practicing social distancing for anyone inside the court facilities
In addition, courts are focusing additional measures on protecting health, like the use of personal protective devices (primarily face masks) and comprehensive, regular environmental cleaning. I foresee that most, if not all, of the actions outlined above will be continued for many more months as the pandemic runs its course. For instance, even if we get past the initial infection wave, until there are universal inoculations of an effective vaccine we will continue to need to combat new infections for the foreseeable future.
Courts must adapt to this situation for at least the rest of 2020. In order to reduce personal contact, there are a plethora of areas that need attention, such as: facilities, technology, supplies of needed materials, human resources (e.g., wellness issues and training), coordination with a wide variety of justice system partners (necessitating effective communication and collaboration), and calendar management in the face of deferred hearings and changes in caseloads.
Because of the need to minimize personal contact, almost all courts have implemented remote voice and video appearances for a wide range of hearings. Courts have often done so on an emergency basis, with the result of technologies that are barely functional to very sophisticated. Good systems have robust audio and video quality, flexibility to incorporate many participants, built-in security (e.g., for privacy and infrastructure), and ease of use. Absolutely imperative is for all courts to immediately work to ensure their technologies are the best possible. Justice is not served by inferior solutions.
As if all of the above issues are not enough, governments are now facing huge budget deficits which will greatly impact court resources, making effective responses very hard. Government loss of revenue is a direct result of the severe economic impact of the pandemic. As more and more people are unemployed (over 30 million U.S. unemployment claims filed in the past three weeks alone) and economic activity is severely depressed, tax collections are greatly reduced. For instance, if consumers are not buying goods and services, sales tax revenues decline commensurately (where there is a sales tax). If people are not working, income tax revenues are not collected (where there is an income tax). A third major area of lost revenue is in taxes related to the petroleum industry — fewer miles driven by everyone sheltering in place means fewer gasoline taxes collected; in oil and natural gas producing states like my home state, New Mexico, which gets about 40% of its revenue from petroleum-related taxes, the impact can be devastating.
Soon, courts will be fighting to preserve their current budgets and, in many cases, contend with legislative actions to cut budgets significantly. This situation will also mean the judiciary will have to compete with other government entities for funding, never an easy process. The freezing of pay and furloughing or termination of government staff has already begun in many state and local jurisdictions, and it is inevitable that this will also occur in courts. It is in this fiscal environment that courts will be implementing their action plans.
Courts are in the business of adjudicating disputes. Under even normal circumstances, most courts do not have excess capacity to resolve cases. Now courts are faced with the extraordinary situation of deferred hearings and jury trials, budget pressures likely leading to reduced resources, and developing case filing pressures in many jurisdictions. We already are, or will be, seeing increased case filings in these areas due to the pandemic’s effects (e.g., massive unemployment, increased homelessness, hospitalization and death of victims, people living in confined circumstances, shutdown of many businesses):
- Covid-19 related, like medical malpractice, wrongful death, and other liabilities
- Consumer debt
- Domestic relations, including divorce, protective orders, and child support enforcement
- Commercial burglaries (conversely, a decline in residential burglaries)
- Issues related to discrimination based on Covid-19 immunity as society bifurcates into those who are or are not immune (e.g., employment, housing, access to public and private spaces)
- Constitutional issues (religious freedom, right to assemble, right of confrontation, privacy, etc.)
Courts are thus faced with the massive challenge of administering and adjudicating their dockets in the extreme environment of severe problems outlined above. How will courts handle the new case filings while catching up from the workload deferred from the past? How can jury trials be held safely? How can existing technological infrastructure hold up? Courts must address, and hopefully solve, these problems soon or they may buckle and fail to uphold their missions.
At present there is growing sentiment to “reopen” society around the world. There is a hodge-podge of countries, regions/states, and localities that have begun to loosen restrictions. Whether or not these actions are justified, courts need to be attuned to their environments and respond appropriately, even it means not loosening restrictions in synchronization with other societal sectors. I believe that we are entering a phase of gradual recovery from the first wave of the pandemic, with a (hopefully) flattened roller-coaster ride of progress and setbacks that will last far into the future. A return to a post-Covid-19 world is just not going to happen, so courts need to adjust accordingly via adaptive leadership.
I highly recommend reading the most recent monthly “Trends” article by Janet Cornell and published by the NCSC, “COVID-19 and the Courts: A Case Study of Contrasts, Reengineering and Observations,” https://www.ncsc.org/microsites/trends/home/Monthly-Trends-Articles/2020/COVID19-and-the-Courts.aspx. This article has wonderful advice on how court leaders may (and should!) adapt to better lead in this environment. Here is the ending paragraph from that report:
While courts continue to reengineer and redesign current and future operations, perhaps the most important leadership actions consist of leveraging the stark contrasts of how courts worked in the past versus how they work in the present and future. Courts will look back on this as a defining moment. New techniques will be shared. Refined strategies will build upon them. Further analysis will occur. Courts will learn from each other. Courts must be part of the “new normal” by leveraging the contrasts, adapting solutions, and measuring how they work.
This is the first of two blog posts about the current and future situation in the courts in the age of the Covid-19 pandemic. Reader comments are welcome about this post, and to share thoughts about where we are headed in the coming year(s).