When people say that progress is not linear, they’re expressing the idea that tomorrow won’t necessarily be better than today. Yes, we’ll reach our destination, but we might follow a circuitous route and may arrive later than anticipated. The expression is intended to galvanize our resolve to stick with the game plan and to carry on in the face of adversity—and be prepared to step back, if necessary to regroup and then forge on.
With coronavirus cases rising in many locations nationwide, plans for reopening courthouses across the U.S. are about to be tested for their ability to cope with nonlinear progress.
On June 30, state and local governments reported more than 47,000 new coronavirus cases—the highest number since the beginning of the pandemic. According to the New York Times, new coronavirus cases rose 80 percent during the preceding two weeks. The nation’s leading infectious disease expert, Dr. Anthony Fauci of the NIH National Institute of Allergy and Infectious Diseases, delivered more bad news when he told Congress on June 30 that daily cases could reach 100,000 if the virus remains unchecked.
This is not the path the legal community expected the virus to take. From mid-April through the first weeks of June—when federal and state officials were busy writing guidance documents for reopening courthouses—the number of new coronavirus cases had tracked slowly downward. It was reasonable to expect that courts would gradually reopen their physical spaces during the summer months, that jury trials would begin and “non-essential services” would be handled in a somewhat traditional manner.
Courthouse reopening plans described a linear progression from an initial “just getting started” phase to ever-more-open subsequent phases until something approaching normal court operations is achieved. As COVID-19 receded, courts would become more open as the year wore on.
Today that seems unlikely, at least in the near term. Courts that tied their reopening plans to a fixed date on the calendar are being forced to revise their schedules. Courts that linked reopening to their jurisdiction’s success in flattening the coronavirus incidence curve could be moving backwards on the reopening timeline, rolling back whatever courthouse opening measures have been instituted so far.
On June 29, the Texas Supreme Court revised its timetable for jury trials in that state, postponing them until Sept. 1, 2020. Some courts in Arizona and California have been conducting jury trials, but the situation is changing quickly in what have been coronavirus hotspots of late.
In addition to a phased reopening process, most court reopening plans share two other broad similarities:
Courts: Appear Only When Necessary
In Michigan, the state supreme court’s reopening plan charts a path through four separate phases for initial opening to “full capacity.” However, full capacity doesn’t mean everyone with judicial business will be welcome. According to Return to Full Capacity (PDF), Michigan’s objective is for courts to physically accommodate only those people who absolutely need to be on the premises:
“Full capacity” in 2020 means something different than in prior years and will require a culture shift in the judiciary based on advancements in court technology and remote work capacity achieved during the early stages of the COVID-19 pandemic .… Although there will be a time when litigants and the public can return to the courtrooms for more proceedings, we must change our philosophy and only require attendance when absolutely necessary. Each court’s plan and definition of “full capacity” should take advantage of technology to the extent possible under current administrative orders.
Similarly, a working group convened by the Delaware judiciary linked increased use of technology to decreased congestion at local courthouses. The working group’s May 20 Interim Report of the Delaware Reopening Committee (PDF) states:
In order to limit the number of people in the courthouse, whenever it is reasonably possible to do so, the court should consider the use of technology in the presentation of evidence or legal arguments.
California’s Pandemic Continuity of Operations Resource Guide (PDF) calls on local courts to “continue or expand, where appropriate, the use of technology to reduce the need for in-person visits to the courthouse.” Discovery conferences and voluntary settlement conferences are mentioned as proceedings appropriate for the use of remote communication technologies.
Local Courts Set Their Own Rules
In most jurisdictions, state supreme courts have allowed each local court to set its own rules for reopening courthouse premises. In Texas, for example, the state Supreme Court issued guidelines for reopening trial courts but it allowed each court to submit a reopening plan tailored to their locality. Similarly, in Illinois, the state Supreme Court published Guidelines for Resuming Illinois Judicial Branch Operations During the COVID-19 Pandemic (PDF) that authorized local trial courts to develop—and submit for approval—conforming plans for reopening their courthouses.
Many courthouse reopening guidelines are tied to local government officials’ assessments of the locality’s success in minimizing the incidence of coronavirus. If local conditions worsen, a courthouse could find itself closing up again.
Barring a dramatic increase in the spread of the coronavirus, most courts will soon be moving to a “partially open” situation to accommodate the public and resume in-person proceedings to a limited extent. There’s a surprising degree of uniformity among the courthouse reopening plans published so far. Nearly all reopening plans include calls to:
At this point, no one can say when courts will reopen, even to the limited extent described above. Courts and lawyers are careful and risk-averse creatures, and they are not subject to the same pressure to reopen as other parts of the economy. The only certainty is that technology will continue to grow in importance for the legal profession, regardless of the course of the COVID-19 pandemic.