Courts and Covid-19: where are we, and where are we going? [part 2 of 2]

In my last blog post I reviewed where courts are currently during the Covid-19 pandemic. Now, let us consider what may happen in 2021 and beyond.

The Big Picture

What will the pandemic look like in the future? Will the health crisis be mostly over at year’s end, with an effective vaccine and treatments widely available? Or will we be grappling with wave after wave of infections while trying to deploy a vaccine (which may never be found)? A recent article presented three alternate futures for the next few years, based on University of Minnesota research (https://www.nytimes.com/2020/05/08/health/coronavirus-pandemic-curve-scenarios.html):

• Scenario No. 1 depicts an initial wave of cases — the current one — followed by a consistently bumpy ride of “peaks and valleys” that will gradually diminish over a year or two.
• Scenario No. 2 supposes that the current wave will be followed by a larger “fall peak,” or perhaps a winter peak, with subsequent smaller waves thereafter, similar to what transpired during the 1918-1919 flu pandemic.
• Scenario No. 3 shows an intense spring peak followed by a “slow burn” with less-pronounced ups and downs.

Of course, we do not know precisely what will happen because there are so many variables. For instance, a significant variable that will affect the future is the outcome of the November 2020, elections at the federal, state, and local levels which will elect our political leaders for 2021. We also do not know if vaccine research will be successful, and if so, when. What I conclude from my research, however, is that society and courts will be affected by, and responding to, the health effects of the Covid-19 pandemic for a long time to come.

At the same time, we will be surrounded by the dramatic collateral economic effects of the pandemic. For instance, massive unemployment will lessen, but employment not return to 2019 levels soon. The combined health and economic effects will continue to cause widespread social welfare issues that the courts will have to operate in.

Many jurisdictions worldwide are now “reopening” their activities. Let us not kid ourselves, however. The loosening of restrictions is and will be a very gradual process, whether sanctioned by governments or not. Even if all legal restrictions are ended, most people are not going to just return to life as we knew it in 2019 (partially because the economic world will not suddenly be “back to normal”). We will be taking incremental steps to reconstitute our world, more a matter of recovery than reopening – and this will take at least several years.

A major result of the pandemic will be heavy societal pressure for significant reforms in many areas, such as the delivery of government services that people have a renewed reliance on, including the courts. People have been forced to change their personal and professional habits, growing accustomed to doing things remotely while maintaining social distancing. This leads to the expectation that things like teleworking and online services will be routine and not the exception.

Major Court Action Areas For Long-Term Success

There are many action areas that courts need to address in order to successfully overcome the Covid-19 pandemic. Before I address these areas, I highly recommend taking advantage of the pandemic resource information and guidance provided by the National Center for State Courts at https://www.ncsc.org/pandemic. In particular, the NCSC is hosting excellent webinars, such as “Expanding Court Operations II: Outside the Box Strategies: Administering the courts while the COVID-19 curve is flattened.”

• Strategic Planning. Whether or not a court already has a robust strategic planning effort, it is vitally important to engage in such an effort right now. There are a multitude of important factors and decisions that must be made in a less than optimal environment. Please note, however, that this planning effort should be a very nimble, not bureaucratic, process (unlike many formal strategic planning programs). This is not a one-time effort, either – the planning team will need to repeatedly consider and adapt to the fluid environment of the next several years. A key component of any plan is the court’s Continuity of Operations Plan, to which many courts now must add “pandemic” to the list of possible scenarios. And, do not forget to add an evaluation component to assess the achievement (or not) of goals to enable adjustment of plans based on data.
• Building capacity. Courts need to work to build in the capability to flexibly respond to changed circumstances. If nothing else, the pandemic has taught us this lesson.
• Normalization of remote participation. The world has almost instantly been forced to use remote participation in a wide variety of life situations. Courts are conducting a multitude of hearings remotely while many judges and workers are teleworking. As noted above, society is now going to expect that this will be made routine. The legal definition of “in-person” will be reassessed and redefined.
• The modernization of technology. A major way that courts will increase capacity and normalize remote participation will be to modernize automated systems. Here are key areas:
  • Creating/expanding online tools. This includes provision of information kiosks, online access by the public and litigants to case records and information, e-filing of documents, e-scheduling of hearings, support for alternative dispute resolution like mediation, and online dispute resolution (ODR).
  • Creating/enhancing automated, artificial intelligence enabled, workflow processing support systems for judges and staff that support teleworking and greater efficiencies. At the same time, such systems need to appropriately support employee performance management efforts.
  • Institutionalizing robust audio and video conferencing systems for remote participation in hearings and trials.
  • Upgrading cybersecurity systems in general, and particularly for online tools and remote workers (with attention to the range of remote devices that judges and employees may use).
• Managing new caseload realities.
  • Courts are currently deferring non-critical court hearings and trials. Prominent among these are jury trials. For instance, the State of Washington has deferred all jury trials to at least July 6. In a recent survey from the National Judicial College, “Nearly 6 in 10 of the 867 judges who responded said their courts were down to 25 percent or less of normal. Nearly 80 percent said they were operating at 50 percent or less. Fewer than 1 in 4 said their court was operating at 50 percent or better.” https://www.judges.org/most-courts-have-cut-back-to-25-percent-or-less-of-activities-due-to-covid-19-concerns/
  • The result of the case deferrals will be a very large backlog of hearings and trials that will need to be adjudicated. Clearing this backlog will not be simple, and will still be a reality in 2021 in many jurisdictions. Courts should be planning now how to solve this problem.
  • Due to the pandemic, there will be changes in the amount, and types of cases being filed. Here are many of the case types that will see increased filings (in no particular order):
    • Covid-19 related, like medical malpractice, wrongful death, and other liabilities
    • Contract
    • Landlord-tenant
    • Consumer debt
    • Bankruptcy
    • Unemployment claim disputes
    • Domestic relations, including divorce, protective orders, and child support enforcement
    • Mental health
    • Education
    • Issues related to discrimination based on Covid-19 immunity as society may bifurcate into those who are or are not immune (e.g., employment, housing, access to public and private spaces); some are seriously proposing “pandemic passports” and all that entails.
    • Return to work/teleworking issues
    • Constitutional issues (religious freedom, right to assemble, right of confrontation, privacy, etc.)

Conversely, some case types may decline, such as traffic tickets and auto accidents due to the effect of widespread teleworking and other distance-enabled actions.

• Other caseload factors:
  • Courts are experiencing rather dramatic increases in appearance rates for video-enabled hearings, thus enhancing caseflow and avoiding non-appearance actions (e.g., issuing warrants).
  • Decreased rates of incarceration are likely to continue, either by executive action or reform of criminal sentencing laws. This may have a large impact on courts and probation services that will now be supervising defendants instead of turning them over to corrections institutions.
• Courts will need to proactively respond to these new caseload realities. Possible responses include:
  • Triaging cases into multiple tracks that commit appropriate resources to the priority levels of cases. Courts that already have “differentiated case management” (DCM) are familiar with this technique.
  • Creating specialized divisions to handle cases with common, but specialized needs.
  • Use of hybrid calendaring, with master-calendared preliminary or simple matters, and individually-calendared complex matters.
  • Heavy use of online, remote hearings and trials.
  • Stricter continuance management by judges.

No matter what happens, courts should never lose sight of their mission to uphold the Rule of Law. This includes adherence to the preservation of litigant rights, with particular attention to human rights issues like housing, social security, health, and personal liberty.

• Operational Issues.
  • There will be a huge societal emphasis on enhanced sanitation and hygiene. Courts will be institutionalizing new policies and procedures to protect the public and courthouse workers. This will necessitate such things as increased housekeeping support, purchase of supplies (including personal protective equipment), and training on personal actions.
  • Human resource issues will need to be addressed. Staff who have been teleworking will raise return to work concerns about safety and other adjustments to being back in the court setting. The morale and mental health of court staff will probably be adversely impacted, so court leaders need to find ways to avoid this situation. An enhanced employee wellness program is a good way to do this. The supervision of a greatly expanded teleworking workforce must be effectively managed. Supervisors and staff should receive training on how to keep productivity up (and even better!), as well as how to measure performance in this environment. As noted above, there are good ways to leverage technology with workflow management systems to accomplish better teamwork and supervision.
  • Social distancing will continue to be necessary until widespread use of an effective vaccine. Courts need to adjust physical spaces accordingly. This will include public hallways and spaces, public service counter and work areas, hearing and courtrooms, employee back-office work areas, and public entry screening zones. Such zones will need to be changed to incorporate health screening, which will not be easy in many courthouses. A huge challenge is to enable social distancing in jury trials. A court recently simulated a social distancing jury trial and had to use three courtrooms to make it work! It is obvious that to incorporate social distancing space, courts will be hard-pressed to make effective solutions, especially in older, historic courthouses.

• Budget/Resources. As if the above issues are not enough, governments are now facing huge budget deficits. It is highly likely that court budgets will be reduced for the foreseeable future (this has already occurred, for example, in Virginia), making effective responses very hard (as needs go up, budget dollars go down). Courts need to be prepared to compete with other government entities in the reallocation of scarce resources, stressing the critical importance of the judiciary in this time of crisis. Perhaps new revenue sources can be found, such as new or increased user fees. A robust strategic plan will greatly help manage the use of resources. Nevertheless, courts should be prepared to implement measures to reduce payroll. These include:
  • Freezing pay (merit, cost of living)
  • Furloughs (partial or full)
  • Voluntary leave without pay
  • Job-sharing as part of reduction of hours
  • Layoffs

All of these actions may result in employee dissatisfaction, so court leaders need to handle payroll reduction plans very carefully and transparently, supporting staff as best as possible.

Conclusion

We find ourselves in a once in a generation time of crisis. The challenges are big, diverse, and many. It is times like these that present opportunities. For instance, now is the time to change the rules we operate by in the courts. Now is the time to modernize how we do business. Now is the time to craft solutions that are people-centered, maximize access, and increase personal safety. It will not be easy to overcome resistance to change (especially during probable diminished resources), but we can emerge from the pandemic crisis stronger than ever. We can increase efficiency and effectiveness by being proactive and responding to what our constituents need.

We can maximize our chances of success by adopting Adaptive Leadership techniques to address the wide variety of challenges outlined in this blog post. We cannot keep doing things the same as before, including our leadership actions. In the next Vantage Point Blog post, my colleague Janet Cornell will present the key elements of Adaptive Leadership.  Meanwhile, I hope this post has provided useful information and an insight into how courts will need to act in the coming years to respond to the Covid-19 pandemic. Do not forget, the new normal will be one that we create!

This is the second 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!