Some of the risk the Covid-19 virus poses to litigators, judges, and court personnel can be remedied with non-medical technology.
Putting aside the more complicated issue of trials, and especially the right to a speedy trial in criminal cases, litigation includes numerous matters requiring court appearances, e.g., case management conferences, motion arguments, appellate oral arguments, etc. Potential virus exposure might involve public transportation to get to the courthouse; presence in the public space of the courthouse; and being in relatively close quarters with others while entering, waiting, presenting, and leaving the premises. Once finished, lawyers called to court for these matters have to return to their homes or offices, with trips of varying lengths. For those with longer trips, this may involve using public rest stops if driving.
It would seem obvious that teleconferencing or videoconferencing can obviate much of this risk when dealing with case management meetings or oral arguments.
Just Friday, Rhode Superior Court Business Calendar Associate Justice Brian Stern sent this message to Rhode Island’s Bar Association:
“As we continue to take Coronavirus precautions, the Supreme Court has implemented video conferencing software for the Providence Business Calendar. The WebEx® platform allows certain matters, including chambers conferences, to be conducted remotely.
WebEx® allows the Court to set up the video call without any cost to the Participants. All that is required is a camera and microphone on your computer or installing the WebEx® application on your iPhone or Android device. If you do not have access to a computer or phone with a camera and a microphone, you may also dial into the conference. All of the information is in the invitation email that you receive before the video conference. You may also find it helpful to read the WebEx® information for Attendees by clicking here.”
Some courts are already aware that videoconferencing is available, and others are using it. As we posted last September, New York’s Commercial Division Advisory Council proposed a video conferencing rule, and in the course of doing so provided a detailed supporting memorandum including an extensive list of courts already using videoconferencing. We also identified a number of business courts already making videoconferencing available in some circumstances. You can link to that post here.
While some courts may not have videoconferencing technology built into their court administrative systems or infrastructure, or a readiness to experiment at this time, they all presumably have telephones that can handle teleconferencing. Although low-tech by 21st century standards, teleconferencing can perform an important function in this uncertain time.
With the number of 60+ year old lawyers in practice, and judges on the bench, any inconvenience should be weighed against potential consequences. Having participated in telephone conference oral arguments, it feels a bit distant at times, especially if opposing counsel is physically present, but I have never felt it affected the outcome or diminished the court’s ability to understand an argument.
Looking at some specific courts’ responses where the courts have not closed their doors, Ohio Chief Justice Maureen O’Connor has instructed Ohio’s judges to “maximize the use of technology to do the work of the court, especially telephone conferences …”
Delaware’s Court of Chancery issued a Standing Order to use the telephone for both conferences and hearings when “it would be practical and efficient to do so and [the Court will] promptly consider any request by the parties to change a hearing from being held in-person to a telephonic hearing.” Delaware’s Superior Court uses the same language in its Standing Order on the subject.
Atlanta’s Fulton County Superior Court has ordered that “no non-essential hearings will take place during [a 30 day period], unless they can be conducted by video or teleconferencing. Parties or attorneys in any non-essential matters should contact the chambers of the judge assigned to their case if they have any questions and/or need help to ensure their compliance with the order.”
North Carolina’s Supreme Court has ordered all matters in the state trial level courts held in abeyance for thirty days, absent certain exceptional circumstances. These circumstances include, among others, that “the proceedings will be conducted remotely” or “the senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding can be conducted under conditions that protect the health and safety of all participants.”
The Ninth Circuit issued a notice on March 9, 2020, allowing “[c]ounsel who wish to appear remotely for any hearing may file a motion in that case for such relief.”
Many of the court orders cited above were issued on Saturday, March 14, 2020, showing the importance of addressing the risk, and dynamism of its evolution.