Like 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.