Court Deadlines and Statutes of Limitations in the Time of Coronavirus

hourglassAs I write this, many state courts have announced that they are closed to the public due to the coronavirus (COVID-19) crisis and will continue to operate but only for designated “essential functions.” This could obviously affect deadlines in existing cases as well as statutes of limitations for filing new cases. States have already sought to address the problem. In Pennsylvania, for example, the highest court has closed all state court to the public except for “essential functions.” It has also ordered that “all calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, are SUSPENDED through April 3, 2020.” In New York State, which similarly has postponed all non-essential judicial proceedings, Governor Cuomo has issued an order providing that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” 

Federal courts are different. Congress long ago decreed that “[a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.” 28 U.S.C. §452 (emphasis added). Hence, while many trials and public proceedings may be postponed due to the crisis, all ordinary deadlines in federal court will apply, unless courts by general orders applicable to classes of cases or in individual cases extend the deadlines. For example, the United States Supreme Court last week issued an order extending the time for petitions for review from 90 to 150 days after the lower-court ruling. Federal court clerks’ offices are expected to remain open, albeit with limited staff due to the need to limit personal interactions, with filings accepted in person or electronically throughout the crisis. 

So with federal courts open for business with limited staff available to the public and some state courts closed for all but non-essential business, what can you expect if you have deadlines in an existing case or a new case that needs to be filed before a statutory deadline? The first thing is for you or your lawyer to consult the orders and rules that apply to the court where your case is pending or where you intend to file the case. If the case is an existing one, the deadlines may be adjusted by general rule, as in Pennsylvania or New York. If the deadlines are not adjusted by general rule, prudent counsel will confer with opposing counsel and make best efforts to reach agreement and proceed by remote filing whenever possible. It is hard to believe that courts anywhere would look kindly on litigation opponents who are unwilling to cooperate with opposing counsel on reasonable requests for extending deadlines in this time of national crisis. Wherever possible, counsel and clients should work it out reasonably with their opponents and seek judicial approval of scheduling adjustments at the earliest opportunity.

The much harder case is what to do with statutes of limitations, which are generally regarded as absolute bars to recovery if the lawsuit is filed late. Will the closure of a law office due to the crisis extend the deadline for filing? What about if the court is closed and will not accept a new filing until after the statute of limitation has passed? What legal effect will orders like the ones issued by the Pennsylvania Supreme Court or Governor Cuomo ostensibly extending all deadlines have on this issue? 

There are no current answers to any of these questions, and no lawyer or client wants to be the test case. As a result, prudent counsel will take whatever measures are necessary to file actions within the statutory time periods and without hoping that late filings of new matters will be excused. If the court is open and will accept the complaint for filing, either in person or electronically, the best course of action will be to file timely anyway. Even if the court closures prevent counsel from doing all the due diligence and preparing the complaint with the degree of rigor normally employed, because in-person meetings with clients or witnesses are not possible for example, counsel can still file a competent, bare bones complaint that satisfies professional obligations under the circumstances, and can later amend it if necessary. 

If the court is closed to the public and will not accept new filings, either in person or electronically, then counsel should make best efforts to file by mail on time. A credible argument can be made that, if the complaint was mailed with a postmark several days in advance of the deadline, the statute of limitations should be satisfied. Correspondence to the opponent in litigation advising that the complaint was mailed and providing a copy of the complaint prior to the deadline will help the argument.

In short, common sense must rule. Keep all deadlines if possible. Seek and agree to extensions wherever it would be reasonable to do so. If the court will not accept the filing of a complaint prior to the statutory deadline, do your utmost to document that you tried to file it on time and gave the opponent notice. If you follow this guidance, your cases may be delayed but will not be lost due to missing deadlines as a result of the current crisis.  

Courts and Counsel Confront Coronavirus Closures— How Will Your Legal Matter Be Affected?

Female Lawyer working from home with Justice statueLike many other law firms, mine is subject to government mandated shutdown for all public business and physical human interaction due to the coronavirus (COVID-19) pandemic. This means that our attorneys and staff can continue to work, as long we do it remotely, without personal contact with anyone else, such as clients, courts, witnesses, and other lawyers. No employees can come to the office.

Similar prohibitions apply to all businesses and organizations that have been designated by the law as “non-life-sustaining,” in contrast to life-sustaining industries such as hospitals, grocery stores, gas stations, farms, and transit systems. I live and work in Philadelphia, but restrictions like these are being imposed in cities and states throughout the United States.

Smart lawyers and judges defer to experts in other fields, and public health experts everywhere are calling for strong measures like these to save lives. The need for these measures is undisputable. If anything, this should have started sooner.

While law offices are closed for all but remote work, many courts are closed to the public for all but “essential” functions. In Pennsylvania, for example, the state supreme court has issued an order closing to the public all courts statewide except for essential functions, such as issuance of search warrants, criminal case filings, and preliminary hearings for incarcerated persons, and limited civil matters such as those involving juvenile delinquents, protection from abuse, and emergency equity matters, until at least April 3.

By the same order, the Pennsylvania Supreme Court also:

  • suspended time for the calculation of all deadlines relevant to court cases or other judicial business through April 3;
  • specifically authorized and encouraged the use of advanced communications technology to conduct court proceedings; and
  • ordered all courts to consider, whenever possible, deciding matters on the papers, without oral argument.

The United States Supreme Court has closed its building to the public, postponed oral arguments scheduled for March, and extended the time for filing petitions for review from 90 to 150 days after the lower-court ruling. Other federal courts are addressing the crisis on a court-by-court basis. The Court of Appeals for the Third Circuit has announced that it is still holding oral arguments and that the clerk’s office is open, although staffed minimally, with most staff working remotely and able to return phone calls. Many of the federal district courts nationwide also remain at least nominally open, but with public functions such as trials postponed for weeks at least, leaving judges and their staffs working remotely as much as they can.

Where does this leave you and your legal matter? For cases already in the court system that cannot be decided without a trial, this almost certainly means further delay, probably of months, as the backlog of cases set for trial grows. Cases that can be decided on the papers may move faster than usual, because the curtailment of public proceedings should mean that trial judges and their staffs will have more time to focus on reading and deciding motions.

For cases not yet filed, uncertainties abound. The need for justice does not end just because many courts are closed due to the coronavirus. Clients will still need to consult lawyers and lawyers will still need to file lawsuits and other proceedings. Some of this can wait until the crisis passes, but some of it cannot wait. The employer who uses this crisis as an excuse not to pay workers needs to be sued and forced to pay quickly. The 69-year-old client who just realized they need a will cannot wait long. Absent legislative action, statutes of limitations will still run, which means lawsuits need to be filed or somehow preserved, even if the court system will not accept filings through ordinary means. There are countless legal matters that will require attention by courts and counsel throughout the crisis.

While courts and counsel must comply with and respect the social distancing mandate, putting large parts of the justice system on ice for weeks or longer is simply not an option. It is essential to restrict in-person interactions, but most lawyers, judges, court staff, and clients can find ways to continue to work remotely. Fortunately, this is easier in our field than in others, because a large part of the job for many of us includes research, reading, writing, and conferring with others by phone, all of which can be done remotely. Video technology has made it possible for us to hold meetings and even conduct depositions all without leaving our home offices. In a very real sense, law firms and courts are still open for business to a great degree, and clients should be able to expect that close attention will be paid to their cases even during these difficult times.

All players in the justice system must recognize the downside risk inherent in the closure of law offices and the partial closure of the court system. It could have a negative impact not just on the current cases, but on the cases that arise during the immediate crisis, and even on cases that arise later, because of the substantial backlog of cases likely to result. Justice delayed very often leads to justice denied.

We also must consider self-preservation and sanity. Most of us need our work to support our families and to keep ourselves engaged. It is far better for us to take on the challenge of finding ways to continue our work as lawyers and judges than to consider ourselves checked out for the duration of this frightening episode.

Finally, there is the need for us to provide employment not just for ourselves but for others during these difficult times. Whether it is other lawyers or nonlegal staff, our colleagues need to be given work to do, so they can support their families and maintain their sense of self-worth.

For all these reasons, it is incumbent on judges and lawyers everywhere to find ways to make the justice system work remotely during this crisis to the greatest extent possible, consistent with public safety and the social distancing mandate. Mitigating the adverse effect of the health crisis on the justice system should be a matter of utmost concern for the judiciary and legal profession.