Logistics. It is “the detailed coordination of a complex operation involving many people, facilities or supplies.” There are people who have advanced degrees in logistics, but I wonder how many lawyers, how many judges, how many court administrators have such degrees. We’ve all experienced occasional courthouse closings due to various disrupting events, including earthquakes, hurricanes, tornadoes, and other happenings out of the ordinary. But the closings have usually been short, nothing like what we are experiencing now. Most courts, at least state courts here in California, have been closed for a month or more.
At some point, the courts will reopen and then what? What a backlog will greet them.
Once courts reopen, who will be allowed in the courthouse, let alone the courtrooms? Will there be testing before entry into the courthouse? Will there be testing once in the courthouse along with the present security measures? Hopefully, there won’t be any tantrums like the attorney who pulled off his pants because he was asked to remove his belt at the security checkpoint (and that was several months ago). Will there be temperature checks? Who will do them?
Right now, testing kits are not readily available, as they should be and will need to be. Right now, test results are not readily available on a moment’s notice. Will people have to wait for results before they can enter? How long will that test result be good for? We are told that you can test negative and then subsequently test positive. Will people need to be tested before even going to the courthouse? Will they need a doctor’s note or some similar verification? Unless you have had the virus or are immune, we all know that there are lots of people who are asymptomatic. What do you do about those people going to court?
Let’s assume that you have made it past the security checkpoint (leaving aside the testing issue). We know now (or we should know, and if we do not, shame on us) that most, if not all, routine court appearances can be handled by videoconferencing of one sort or another. Hooray for the reduction in the client’s expense, but maybe not so hooray for the attorney who used to be able to bill for travel time and the time spent cooling heels in the courtroom. So, unless judges refuse to get with the “new normal,” this may be one possible positive result of COVID-19 for the client.
Change the scenario. There are jury trials to be had, and criminal trials take priority. I would imagine that there will be lots of criminal defendants who will raise speedy trial issues and that because the trial did not take place within the statutorily mandated time, the case should be dismissed. I am not a constitutional law maven, but I would hazard a guess that the state’s actions could pass the “strict scrutiny” test. There still will be trials, but, as before, most criminal cases will result in pleas.
But what if the parties ask, “Ready for trial?’ How will that happen given the social distancing and other provisos that will still be in place? Will there be a jury assembly room? If so, social distancing could be well-nigh impossible in that situation. We have an “on-call” juror system here, so jurors are only called if there is a need for a panel.
But you still must “assemble.” Will that “assembly” be remote? What happens when your juror ID number is called, and you need to report to a courtroom? Logistically, how will that work? Normally (I must stop using that word) you would go to the courthouse, go through security, and proceed to the courtroom. Will that still be the process if you “assemble” remotely?
What about courtroom staff? How will they be protected? The clerk, the bailiff, the court reporter, and of course, the judge. Is there six feet of separation among them now? What about counsel? Is there six feet of clearance at counsel table so that counsel can fit? I would guess that there is going to be some choreographing of how this will all work, at least there should be.
How will the courtroom be reconfigured to allow jurors? My guess is that the entire courtroom will be used for juror spacing, and that the spectator area will be a thing of the past, at least for the foreseeable future. (Goodbye open courtrooms.) What do you do about the jury room? What if the jury must be excused while the lawyers and the court discuss certain issues? Are they out in the hallway six feet apart? What if there is more than one jury out in the hallway at the same time? How will that work?
Finally, yes, because my head is about to explode, how will jury deliberations be handled? Jury rooms are notably close quarters (only dinosaurs will remember the movie 12 Angry Men. If you have never seen it, you have time to see it now). Will jurors be permitted to deliberate in the same way as they have in the past? It is the give and take in the jury room that is so essential to deliberations and reaching a verdict.
Biglaw is adjusting to a new normal, and ATL is covering the changes extensively, but it’s not just Biglaw, it’s every firm of every shape and size. It’s also law schools and law students, whether graduating and ready to take the bar, whenever that is, or just starting.
The judiciary will need to adjust as well. How the public will access the justice system once courts reopen? There are tough logistical times ahead. We can whine all we want, not that it will do much, if any, good. Now is the time for us to pull up our big kid pants and help access to justice however we can, and that will mean developing the patience that we are not known for.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.