Since January 2020, the new coronavirus COVID-19 has been the reason for many event cancellations and changes in our routines. Even legal disputes have to go under different procedures because of the outbreak. And for the first time in a century, the Supreme Court had to postpone oral arguments.
“In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session”
– Announced the Supreme Court of The United States on March 16, 2020.
This decision of the Court is quite unusual, as it held oral arguments even in 2012 when the rest of official Washington was closed due to Hurricane Sandy. The Supreme court usually continues operations even when other government agencies shut down. But when we need to keep social distance and stay at home as much as possible, courts and agencies are making modifications to help stop spreading the virus.
There is no single contingency plan that will apply to all courts, as the U.S. federal judiciary is decentralized. Some are closing courthouses, restricting courthouse access, canceling non-case related activities, and rescheduling or switching to video conferencing of oral arguments.
Past Pandemics and Experiences
The official press-release published by the Supreme Court noted that it’s not the first time the Court has had to reschedule oral arguments.
“The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
Pandemics are not something new. We all have heard and read about the black plague that took the lives of 25 million people. Or the Spanish flu, which was an influenza pandemic started in 1918 and lasted for almost 36 months. The death toll for the Spanish flu was approximately between 17 million and 50 million and could be as high as 100 million – there are no exact numbers for the pandemic. 11,315 people died in 2014-2016 during the Ebola outbreak In Africa. There have been seven cholera outbreaks in the last 200 years, and the Asian flu pandemic between 1957-1958 took the lives of almost 1 million people.
“Since 1900, there have been three pandemics, the last of which occurred in 1968; it is anticipated that another is due. Whether the next pandemic will be mild or severe cannot be predicted. Given the historical impact that pandemics have had in terms of illness and deaths, it is vital to develop a structured plan for preparing the courts to cope with a pandemic outbreak.”
The guidelines for Pandemic Emergency Preparedness Planning in 2007 estimated up to 40 percent of staff at courts would be unavailable, as some might get sick or have an infected person in the family. According to the guidelines, the virus might impact workers’ ability to get to work or even restrict staff access to the court facility itself. If so, the court’s pandemic emergency plan should consider alternative methods of accessing those employees’ expertise and abilities. “Computers, along with fax machines and other telecommunication, should be considered to allow staff members to function offsite.”
The United States Centers for Disease Control and Prevention, in its pandemic strategy (www.cdc.gov), is guiding the country’s preparedness and response to an epidemic with three goals: (1) stopping, slowing, or otherwise limiting the spread of a pandemic to the United States; (2) limiting the domestic spread of a pandemic and mitigating disease, suffering, and death; and (3) sustaining the infrastructure and mitigating impact on the economy and society’s functioning.
But when a pandemic occurs, it impacts the essence of society. Health systems are overwhelmed, while businesses across the country are closing and all government agencies are seeing a severe impact from the virus.
“A pandemic with elements of continued crisis and contagion would present unique challenges to our system, including law enforcement, courts, and corrections.”
– Domingo S. Herraiz director at Office of Justice Programs U.S. Department of Justice 2007
Although there have been numerous guidelines on pandemic preparedness, it’s impossible to predetermine the scale of an outbreak, and each court has to find the best possible solution to keep the staff safe while they keep operating.
Postponements Due to COVID-19
COVID-19 made it challenging for courts across the country to continue operations as usual. It became inevitable to make changes in the way they do business, such as finding ways for remote hearings and keeping only essential staff in buildings.
Federal courts are individually coordinating with state and local health officials to obtain information and make decisions.
The Supreme Court announced that they postponed the oral arguments scheduled for March and April arguments sessions, but they will move some of them to the telephonic arguments scheduled in May.
“The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.”
The Court’s order of April 15, 2020, also encourages parties to serve filings through electronic means only, so there is no need for paper service, which would increase the risk of spreading COVID-19.
Bankruptcy courts are adopting temporary rules that will provide relief for consumer debtors and small businesses during the outbreak.
Technology and Justice
For a society to remain to function as a society, it’s crucial to maintain access to justice. And the only way to do so is by keeping the courts open. But when a deadly virus like COVID-19 is a threat to citizens and employees in courts, the way to keep going is by using technology.
The Judicial Conference of the United States has temporarily approved the use of video and teleconferencing for certain criminal and civil proceedings. For certain criminal proceedings, chief district judges, under certain circumstances and with the consent of the defendant, can temporarily authorize the use of video or telephone conferencing during the COVID-19 national emergency.
“Emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally”
Courts are exploring alternative means of communication such as telecommunications and video conferencing to reduce in-person interactions. Courts should determine the hardware and software for such communications.
The U.S. Court of Appeals for the Federal Circuit will arrange all oral arguments telephonically during the court’s May 2020 session. The Court will also offer live audio access to such arguments, and information for live audio will be available by 9:00 am each day of argument on its website. Audio recordings of the arguments will also be available from the court at the end of each day.
The highest court in Illinois joined other states in utilizing technology for justice and will hear May session’s oral arguments through videoconference.
“This was not built into the way courts were designed to operate and function, but the key component, I think, is courts being a service, not a place,” Bill Raftery, senior knowledge and information services analyst with the National Center for State Courts in Williamsburg, said. “In other words, the idea is to administer and have access to justice, and that doesn’t necessarily mean we have to go to a courtroom if we have the technological capacity.”
– According to the Southern Illinoisan.
Attorneys can test their connection with court officials before arguments to make sure the technology they are using is working correctly. But moving to the online world brought some unexpected issues to the courts not related to technical problems.
“We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc.,”
– Wrote a Florida Judge Dennis Bailey.
According to the Florida judge, a male lawyer appeared shirtless, and a female lawyer “appeared still in bed, still under the covers,” during a hearing. Although the hearings have moved to the online world, lawyers and attorneys should dress the way they would in court, as the video is the part of the online conferences and their inappropriate outfit or behavior is as unacceptable as it would be in the real world.
Courts also approved taking depositions remotely. However, A federal court in New Mexico rejected a plaintiff’s request to allow depositions using remote means. It was because of “the complexity of the case, the need to present documents, the probable length of the deponents’ testimony, the possibility of technological difficulties, and the difficulty of preparing witnesses remotely,” so it all depends on the particular case and the court.
According to the Cares Act, the authorization of video and telephone conferencing will end 30 days after the date on which the national emergency ends, or the date when the Judicial Conference finds that the federal courts are no longer materially affected – whichever happens first.
“Recovery from an epidemic begins when a court determines that it has adequate staff and resources to resume normal business functions. Once normal operations resume, the impact of the epidemic on court operations, staff, and other stakeholders should be assessed, and an after-action evaluation of the court’s response should be drafted. Such an evaluation can assist courts in updating their continuity of operations plans as well as other emergency response plans, as appropriate.”
For now, it is unclear when COVID-19 will leave our reality. As it is impossible to live in a world without justice, the courts will remain working remotely and moving to the online world until the pandemic is over.