April 22, 2020
Just as the response to the COVID-19 pandemic has varied in timing and scope from state to state, so it is with the nation’s courts.
While state courts in 34 states have suspended all in-person proceedings, the remaining 16 states have left matters up to court officials at the local level. Likewise, the timing of federal court orders relating to court business, operating status and public employee safety have varied, thanks to the administrative discretion given the chief judge of each district. Still, there has been consistency among the federal circuits: all have limited public access to federal courthouses, postponed or continued jury trials, permitted hearings to be held by telephone or video, and either extended filing deadlines in March and April or conveyed a willingness to extend deadlines if proper motions are filed. As for the U.S. Supreme Court, it postponed 20 oral arguments scheduled for sessions in late March and April and announced on April 13 that it would hear oral arguments remotely in May for a limited number of the postponed cases.
But while courts have modified their operations to accommodate the special circumstances caused by the pandemic, some judges also have given clear instructions to counsel to move their cases forward to the extent possible. For example, on March 23, Chief Judge Waverly Crenshaw of the Middle District Court of Tennessee issued an order “for clarification [that] the Court emphasizes that all deadlines previously established in both civil and criminal cases remain in full force and effect, absent further order . . . [and] [t]he Judges unanimously expect that counsel for all parties will continue to diligently work on cases to comply with established deadlines.”
As brick-and-mortar law offices go quiet, home offices are buzzing—or at least click-clacking—as lawyers and support staff continue their work remotely. In the securities fraud and shareholder rights practice of law, new case filings and court rulings on pending matters continue without an appreciable decline, although a recent study across all practice areas showed that rulings are beginning to slow down as compared to prior years. Lawyers continue to initiate cases, file briefs, argue motions telephonically, take video depositions, and even participate in video mediations.
This “new normal” takes adaptation and patience on both sides—especially for cases in discovery with depositions. They must now be taken remotely, which requires additional logistical preparation to ensure that the deponent and all counsel are properly equipped. Everybody involved needs enough internet bandwidth, plus the computer, camera, and audio-video quality to allow the court reporter and videographers, also working remotely, to capture a clean record and to make sure the deponent and counsel can see any exhibits introduced and marked on the screen.
Technology aside, video depositions present some fundamental challenges. For counsel taking the deposition, it is much harder to develop a rhythm of questioning and assess witness credibility on a screen than face-to-face. For counsel defending the witness, meanwhile, it is tougher to assess how well the witness is tolerating the process and provide effective guidance during breaks that are not in-person but rather over the phone.
In general, counsel may also find it difficult to strike an appropriate balance between their duty to advance their client’s interests and their concern about how to best communicate with clients and judges who may have more pressing matters at hand.
Despite these and other challenges, effective advocacy continues amid these most uncertain and difficult times.