COVID & the Courts

Episode Notes

Transcript

Lawyer 2 Lawyer

COVID & the Courts

12/11/2020

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John Stiff:  Just imagine people who are depending on the outcome of the lawsuit and they’re now waiting even longer than they were before with the system.  It was already pretty cumbersome and unwieldy.

Danielle Hirsch:  I think one really interesting thing just like John mentioned for attorneys is to see a lot of judges who were really leery of things like Zoom eight months ago who are now really proficient at Zoom in navigating waiting rooms and figuring out how to troubleshoot.  I think it’s just having to meet the moment.

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Intro:  Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

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J. Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Sunny California.  I have a legal blog named May I Please the Court.  I have two books out entitled How to Get Sued and The Sled.  Well, before we introduce today’s topic, we’d like to take this time to thank our sponsors.  LEX Reception is a close team of virtual receptionists dedicated to professionalism, warmth and a 24/7 availability for law firms and attorneys.  Well, we all know that the pandemic is still raging and litigation is looking very different than it was before the pandemic.  Courtrooms across our country have had to adapt to the pandemic through new safety measures and the use of technology to keep up.  But while these changes have allowed courts to operate, they haven’t come without their headaches, and for some clients, very real challenges.  So, have the courts done enough to ensure access?  What does today’s courtroom and court procedures look like?  What about jury trials and jury selection?

Today on Lawyer 2 Lawyer, we’re going to discuss COVID in the courts.  We’ll be talking about justice during the pandemic, taking a look inside what’s going on in courtrooms today, the impact of all of this is having on judges and jurors, clerks, attorneys, bailiffs and their clients, and what’s being done to ease and speed up this whole process?  To do that, we’ve got two great guests for you today.  Our first guest is attorney John Stiff.  He’s the founding partner of Stiff, Keith & Garcia.  John has 30 years of experienced civil defense with an emphasis on complex litigation including professional liability, construction defect and coverage litigation.  And he recently wrote a piece for Themis Advocates Group titled A Litigator’s Guide to Handling a Jury Trial During the Pandemic.  Welcome to the show, John.

John Stiff:  Thank you, and thank you for having me.

J. Craig Williams:  And next stop, we’ve got Danielle Hirsch.  She is the principal court management consultant for the National Center for State Courts.  Danielle has worked closely with the conference and chief justices on how courts are responding to the pandemic and has got great knowledge and understanding of what’s going on in our nation’s state courts.  Welcome to the show, Danielle.

Danielle Hirsch:  Thank you for having me.

J. Craig Williams:  And Danielle, I’d like to start with you and kind of give us an overview of how the pandemic has had an effect on the courts?  What kind of delays have occurred?  What judges and the inside courtrooms are doing to be able to accommodate not having other proceedings in the court with attorneys and everybody else?

Danielle Hirsch:  So, Craig, thank you again for having me.  Just a little bit of background about the National Center.  We are the secretary for the conference of chief justices and the conference of state court administrators.  And since about the end of February, those two bodies convened a rapid response task force that was really trying to understand how the pandemic would be affecting state courts and then to come up with recommendations and mechanisms for information sharing across jurisdictions about how they’re responding to the pandemic.  And I think the pandemic is not the disruption that courts wanted, but it is the disruption that courts needed to try to think about how to innovate and meet all of their court users differently especially as it relates to using technology.  And so, we look forward to that conversation that we’re going to have and both your and John’s experience, it has been an enormous amount of change and adaptation as we both learn more about social distancing and experiment with different kinds of technologies, remote proceedings as well as hybrid proceedings.  But I think there has been a lot of great change that has happened across the country that we can talk about.

J. Craig Williams:  Certainly.  Well, John, you’re an actively practicing attorney.  What’s been your experience in the courtrooms?  What’s happening?

John Stiff:  Well, I tried a case in a jury trial, the second week of August.  In New Mexico, we have had the initial reaction in March was to vacate all trials, and then, the New Mexico Supreme Court indicated that they could no longer delay the right to jury trial, which is a constitutional right.

00:05:00

So, jury trials did resume.  They were recently stopped again until the end of the year.  But from August through the end of or mid-November, they were going forward.  I think New Mexico is unique or I know most of the States are still holding several trials in advance.  And the jury trial that I had aside from the topic of the case, was as challenging as any trial that I’ve had in the time that I have been doing this type of work.  But I really enjoyed it, I love jury work, that’s why I do what I do, I suppose.  In fact, I’m set for another trial coming up in just a few weeks.

J. Craig Williams:  Danielle, has that been your experience in the state courts?  I mean, I know the one I was in this morning out in Palm Springs is conducting an all-appearances via WebEx.  You dial in and enter in a meeting code and you’re — they’re in front of the court as if you were on CourtCall, except there’s no charge for it anymore.  And the court is also now streaming its in-courtroom procedures live on camera on the internet, is that how it’s going?

Danielle Hirsch:  Yeah.  In a number of states, that’s correct, yeah, but in Texas, in Michigan, and parts of California there are YouTube dedicated channels where you can click between — and that’s not exclusive, Idaho, many states, where all of the proceedings that — would be ordinarily open to the public if you were to come in to the courthouse to see it, and you can now just with a click of a button watch via YouTube.  And there are trials and litigation going all over the country.  There have been civil jury trials conducted exclusively via Zoom about civil and criminal trial.  The pace is not nearly as robust as it would have been in ordinary time.  So, there is an enormous — a backlog and delay in getting those cases heard.  And some states are faster at scheduling those cases than others, but you’re right, when in the jurisdictions where they’re doing all of it from jury selection to the jury proceeding remotely, it’s very much like you would just enter a Zoom hearing.

The interesting thing to me has been some of the very first jury trials which came out of the State of Texas.  A lot of the interviews with jurors after the fact and participants found actually that participating via Zoom, everyone seemed more engaged.  I mean, I’d be curious what John’s experience was if it was virtual or in person in New Mexico, but the experience at least in those instances in Texas, the jurors seemed really focused (00:07:39) could review the evidence more easily on the screen and at least their experience, especially a couple of the jurors had been in jury selection before not via Zoom and they found this experience to be easier as they focused.

John Stiff:  So, my trial was in person.  It was still at a time in our progress for the pandemic where people were still learning about the pandemic.  So, we had to operate under pretty strict guidelines.  As an example, our trial judge issued an order a week before we started saying that if any of the lawyers got within six feet of another person in the courtroom, she would hold us in contempt and sanction us.  We were told that we could not have our client next to us, and we had to communicate with our client over a text function on a computer screen.  I could not have a legal assistant or a co-counsel.  I was lead counsel, but I had other counsel for the corporate entity that I was representing in another room watching the whole trial on Google Meets.  The whole trial was broadcast.

And if we wanted to — we couldn’t handle a physical object that another person might then touch.  So, when I wanted to introduce an Exhibit for the jury, I had to have the court bailiff come over with Formula 409, wipe off the piece of paper or whatever the object was, disinfect it, and then, let the Formula 409 dry and then it could be published to the jury.  So, we did everything electronically.  I had a projector, the other side did not so, I found myself — the other side saying, “Hey, would you mind showing my Exhibit on your computer to the jury?” and, “Of course,” I said, “I couldn’t be more pleased.

But anyway, it was a challenge.  At one point, I asked the bailiff, I forgot myself.  I said, “Hey, just hand me down a stapler.” and she handed me the stapler and oh my god, I thought, “I hope the judge wouldn’t come out of her seat.”  We got through that moment of drama.  There were several differences I don’t want to go on and monopolize the time, but I’ve tried a lot of jury cases and this was very different in many ways.

00:10:06

Although I think they did a great job and I think they came out at the right place as they usually do.

J. Craig Williams:  Well, Danielle, to kind of leapfrog off what John is saying in this morning’s virtual hearing that I was in, the court is only conducting in California by WebEx or Zoom platforms, remote platforms.  One of the attorneys said, “We have a plaintiff who is in a remote area of San Bernardino County that doesn’t have internet access.”  She’s elderly, and so they can’t really take her anywhere because they can’t expose her to COVID, and the court essentially was basically saying the plaintiff is going to have to make it happen or take whatever technology you need to make that happen being appear virtually. 

What’s going on in those cases where — is it is with some of our school systems trying to do remote learning.  We have parties, clients and so forth that don’t have remote access.  How is that being handled?

Danielle Hirsch:  Yeah, the digital divide is a real challenge as it relates to jury trials, but frankly as it relates to court participation and remote proceedings much more generally and it affects not only people who are self-represented or otherwise vulnerable, but it could just be geographic where you live with bad broadband.  And so, it’s a real challenge and it’s not one of the courts uniquely can solve, but some courts across the country have been trying various innovations.

So, some courts in New Jersey and Texas being two examples, but not exclusively so have procured iPads that are available in various courthouses that are very stripped down to basically include whatever their desired web platform looks like that have a Wi-Fi — their Wi-Fi enabled and that participants and lawsuits can come — or jurors frankly can used those devices to participate in proceedings both to ensure a cross section of a community for jury selection as well as for participation in trials.

Other, the State of Hawaii has published a Wi-Fi map of places where parties can go whether it’s parking lots in courthouses or public libraries, spaces that — if they’re open where people can participate in proceedings and get decent Wi-Fi, but this is very much a work in progress.

I don’t think a year ago people appreciated quite how much the internet and access to it was like a public utility at this point, but it really is.  And so, courts often are working with their state legislature or their public schools or other groups to try to figure out how to expand Wi-Fi reach.

J. Craig Williams:  Well, John, I’ve recently — in fact, tomorrow I’m starting another day of an arbitration is being handled virtually where we appeared by video in front of the arbitrator and the witness appears and we have a technological consultant who throws the exhibit up on the computer screen which frankly couldn’t be easier to look at and easier to deal with.  So, fumbling with exhibits is a thing of the past.

It seems to be more convenient in a lot of ways, but there is also a kind of dark side to all of it.  There has been a huge delay.  What have you been finding in your experience in terms of timeliness of getting hearings set, of getting cases brought to trial?

John Stiff:  There’s a tremendous backlog that’s been created by this pandemic, and the reason is that I think whether you agree with the steps our society has undertaken in order to struggle with this extraordinary crisis, the fact remains that many of our day-to-day activities had been disrupted.

As a result — I mean, just to give you an example, I think from March 15 through August 10, there were no civil trials being undertaken in New Mexico.  And based on my research, I think that there are many states where they’re still are not civil jury trials undergoing whether they are virtual or in-person.  So, that creates a tremendous backlog and talked to me and just imagine people who are depending on the outcome of a lawsuit and they’re now waiting even longer than they were before with the system that was already cumbersome and unwieldy.  So, I think it has been a tremendous (00:14:48) has been created.  I don’t do criminal work, but I would bet you that a criminal bar is also experiencing a tremendous backlog.

00:14:59

J. Craig Williams:  They are and we can get into that, but before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors.  We’ll be right back.

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And welcome back to Lawyer 2 Lawyer, I’m Craig Williams and with us today is Attorney John Stiff, he’s a founding partner of Stiff, Keith & Garcia, and our second guest is Danielle Hirsch, she’s the principal court management consultant for the National Center for State Courts.

And before the break, we were talking about the impact on criminal courts, and Danielle, as we all know, if a defendant insists on it, he’s got a 10-day right to go to trial.  What are courts doing?

Danielle Hirsch:  So, I mean, a lot of courts are really struggling with balancing what to do with social distance and making that constitutional right possible.  And so, there’s a real range of how states are handling it.

I guess the one thing I would say, which isn’t directly responsive, but is to both you and John’s earlier point, is I think courts are using technology in different ways that are helping clear out some of the high-volume case types that traditionally take up a lot of judicial time and inefficiency in a lot of hearings.  And the hope is as the vaccine comes around the corner and courts are able to reopen, there will be more judicial time available to handle some of these more complicated highly backlogged case types.  But you’re absolutely right.  The criminal right to a speedy trial is a really difficult issue that courts are handling.

J. Craig Williams:  John, you and I both know because we’re a little bit old or long in the tooth in terms of our practices, there are still attorneys who had their secretaries open their emails and then print them out so that they can read them.  What advise would you give to attorneys to get ready for to deal with the way that courts are handling the pandemic through the internet?

John Stiff:  I really think it’s incumbent on us as a profession to embrace the technology and embrace the tools that had been given to us, which includes Zoom or videoconferencing technology.  I think that we, as a profession, we’re trained to be as thorough as possible so that the default was always to do in-person depositions.

I’ve learned I don’t need to do in-person depositions except for a particularly delicate point or a case where the exposure justifies that kind of expense, but I have not done an in-person deposition since March.  And I think even after this pandemic is over, I suspect that I won’t be doing as much traveling as I was.  I really miss it.  I miss the travel, I miss seeing people, I miss interacting with people, I really miss the conferences and the CLEs and going to conferences wherever they might be.  But I think the short answer to your question is we really need to embrace the technology and help to make it available to everybody in our profession, not just the folks who are younger or people who are older or people at the end of their career.

J. Craig Williams:  Danielle, what resources do you know that might be available for attorneys to turn to learn how to do this and to adapt to this changing technological world?

Danielle Hirsch:  So, the attorneys that I know the best are actually the judges, and the National Center for State Courts’ pandemic website has an enormous amount of webinars on logistics about how to use Zoom, how courts are preparing for various kinds of proceedings.  And I think those resources could be as valuable for advocates, are open for the public, and they’re all archived, and that’s one place.

And I’m sure bar associations across the country are offering CLE to help their membership learn how to use various different platforms.  I think one really interesting thing, just like John mentioned for attorneys, is to see a lot of judges who are really leery of things like Zoom eight months ago who are now really proficient at Zoom and navigating waiting rooms and figuring out how to troubleshoot.  I think it’s just having to meet the moment.

J. Craig Williams:  That’s how I think I found it.  But, John, when I’m using Zoom, I have found the chat feature to be an extremely powerful tool.

John Stiff:  For sidebars?

J. Craig Williams:  For sidebars, for conversations with your client.  Heaven forbids, conversations with the witness while they’re testifying.  What are the ethical concerns that we’re looking at here?

00:20:00

John Stiff:  Well, I just got out of a Zoom deposition where one lawyer forgot to go to a separate meeting area on Zoom for a conference with her client, so I had to interrupt them and say, “I can hear you.”  So, you need to be aware of how to engage somebody in a manner that is not public.

I think we all need to be aware of our duty to be adequately aware of the technology.  We do have a duty under the rules of professional responsibility to our clients as well as a very human duty to our staff and opposing counsel.  So, I think the duty to exercise competence, the duty to maintain confidentiality are the two that come to my mind immediately.

J. Craig Williams:  I would agree with that.  Danielle, I wanted to turn to the concept of how we’re going to begin to recover from this.  Obviously, as John has pointed out and you’ve mentioned, there’s a huge backlog.  What should we expect in terms of a return to normalcy when the vaccine generally becomes available, or how is that going to be engaged?  When can courts reopen?  And then once they do reopen, how long is it going to take to deal with this backlog?

Danielle Hirsch:  Well, I think part of it will be a sense of — I don’t think we’re going back to exactly the normal that it was a year ago, I think courts will look a lot different and there will be a lot more hybrid or ability to do certain things remotely than there were before because of the efficiency of it.

I spend most of my time looking at civil access to justice and access to justice gap where people aren’t represented by good counsel like you and John.  And there are a lot of case types where because things are now done remotely, attorneys can come in pro bono in a way that traditionally in a rural community, a lawyer might have to spend three hours in a car each direction to get to a hearing and now can participate via Zoom.

So, I think there will be assorting of figuring out what works and what doesn’t and courts are collecting data right now in various metrics to try to understand what works and what doesn’t and where they can get efficiencies to make space for all of these hearings.  I know a lot of courts are facing big budgetary cuts, but they are also looking at ways to bring back retired judges when it’s safe to try to consider the backlog with additional resources and judicial power.

So, the hope, the glass half full view of this, is that technology will enable and whether it’s online dispute resolution, whether it’s remote hearings, whether certain case types can be handled more efficiently which will leave more time to handle the backlog as courts try to figure it out.  But I think this is very much a work in progress as courts are trying to understand what is working because they often put things together really quickly and have been adapting accordingly.

J. Craig Williams:  It’s a great idea and your opportunity of what might be available in the future, I’d like to turn to John and say, how can attorneys utilize what’s coming in terms of the way that the courtrooms are going to be shaped as Danielle is pointing out a lot different than they are right now.  What opportunities are available to attorneys to build on that?

John Stiff:  Well, I think the Zoom technology and the videoconferencing is it’s been great for my practice.  I may have a doctor expert witness in Los Angeles that I need to speak with.  In years past, I would literally — because it’s so important to meet who (00:23:45) you’re going to have as your expert witness.  I’d get in an airplane and go to interview this person before I retain them.  Now I can go over a Zoom call.

New Mexico in particular is very rural, meaning the population is centered in two or three metropolitan areas and the vast part of the state is very, very low density of people.  So, using Zoom, you communicate with clients.  It’s a real godsent.  I would have to drive four hours to do a deposition in the southeast part of a state and now it’s 10- or a 15-minute commute to my desktop, to my webcam and I’m there.  It’s great.

I don’t know whether this will change long term.  I suspect that as a profession, we’ll use more videoconferencing in the future than we did before.  But I am cynic enough to think that lawyers and people in general want to go back to the old ways.  So, my guess would be that by next year or the year following, things will look much more like they used to, but that’s a guess.

J. Craig Williams:  Great conclusion there.  It looks like we’ve reached the end of our program, so I’d like to take a chance here to let you both share your final thoughts as well as your contact information.  So, Danielle, I’ll turn it over to you first.

00:25:00

Danielle Hirsch:  But I want to thank you again.  The National Center for State Courts, as I mentioned, has a number of resources related to the pandemic specifically on the website which is ncsc.org/pandemic.  My email address is [email protected] and I’d be happy to connect any of your listeners with resources that might be relevant if they want to reach out.  And I thank you again for the opportunity.

J. Craig Williams:  And thank you for being on the show.  What a wonderful set of resources.  And, John, your final thoughts as well as your contact information if our listeners like to reach out to you.

John Stiff:  You bet.  My name is John Stiff and I have a firm in Albuquerque, New Mexico.  My email address is [email protected].  You can also reach me at (505) 243-5755.  Having picked a jury and had a jury trial, I’ve got great suggestions.  I’d be glad to extend any advice or thoughts to anybody who’s starting either a Zoom or an in-person trial and I would just encourage people to continue to be open while this crazy time is with us to be flexible, to be open and to remember why we’re really here, which is to be of service to our clients and always remember it’s a lawyer’s job to close files.

J. Craig Williams:  It sure is.  Well, thank you very much.  I’d like to thank our guests, John Stiff and Danielle Hirsch for joining us today.  It’s a pleasure having you both on the show.

John Stiff:  Thank you.

Danielle Hirsch:  Thanks.

J. Craig Williams:  And for our listeners, if you’ve liked what you heard today, you can rate us on Apple Podcasts or your favorite podcasting app.  You can also visit us at LegalTalkNetwork.com where you can sign up for our newsletter.  I’m Craig Williams, thanks for listening.  Please join us next time for another great legal topic.  Remember, when you want legal, think Lawyer 2 Lawyer.

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