For the first time in seven months, Brooklyn courts will begin to hold jury trials inside courthouses. A number of safety measures have been implemented, including temperature checks, plexiglass screens, and upgraded air filtration systems.
During the last several months, a number of courts worldwide held jury trials outdoors or in large, socially distanced venues. As winter approaches (in the Northern Hemisphere, at least), trials will have no choice but to move indoors. Hopefully they prove to be safe and successful.
The Pew Charitable Trusts hosted a webinar last month with an eye toward helping courts and civil justice stakeholders secure funding to assist with court access during the COVID-19 pandemic. The details, including the link to the webinar recording, can be found here.
The American Bar Association House of Delegates has passed a resolution regarding the use of remote proceedings. The resolution attempts to balance the courts’ need to move forward with their dockets, parties’ entitlement to due process, and the public right to access. Some key points:
FURTHER RESOLVED, That the American Bar Association urges that any authorization of mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction;
FURTHER RESOLVED, That the American Bar Association urges that use of virtual or remote court proceedings be permitted when litigants have consented to the use of such procedures, including being offered a delay until a safe, in-person proceeding can be held;
FURTHER RESOLVED, That the American Bar Association urges that all virtual or remote court proceedings be tailored to the needs of participants and take into account the type of case and proceeding to be conducted, the participants involved, and whether participants are likely to be represented by counsel…
FURTHER RESOLVED, That the American Bar Association urges that advance notice be provided to the public of all virtual or remote proceedings and that full and meaningful public access to such proceedings be guaranteed, while also protecting the privacy of those proceedings legally exempted from public access…
The entire resolution can be found here.
After a two-and-a-half year wait, the Federal Circuit Court of Appeals has affirmed the decision of Judge Ellen Segal Huvelle in National Veterans Legal Services et al. v. United States. The plaintiffs in that case argued that the Judicial Conference of the United States and the Administrative Office of the U.S. Courts exceeded their statutory authorization by using PACER fees to fund internal court projects that were unrelated to the administration of the PACER system itself. (PACER is part of the federal courts’ electronic filing system, which allows the public to access most documents that are filed for a 10 cent/page fee.) The government argued that funding the additional projects did not exceed the court’s authority.
In March 2018, on cross-motions for summary judgment, Judge Huvelle split the difference, concluding as a matter of statutory interpretation that the courts had properly used PACER fees to fund certain projects–including the development of the electronci filing system itself–but had overstepped its bounds in using funds to provide electronic notice to jurors, assist with state court records in Mississippi, and other tangential projects. (I previosuly explored Judge Huvelle’s opinion, and the policies underlying the larger question of PACER fees, here.)
The Federal Circuit concluded that Judge Huvelle’s opinion “got it just right.” But it also added its own gloss on the relationship between the courts and the other branches of government, as seen through the lens of PACER revenue. Continue reading “Federal Circuit affirms PACER fee decision”
On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.
The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.
Continue reading “Making sense of the recent Congressional testimony on courts and technology”
As communities across the United States slowly reopen for business, courthouses are following suit. Extensive precautions and protocols are in place. I have periodically tracked how some court systems have begun their reopening processes, and here is one more: New Mexico resumes jury trials with masks, plexiglass, and cameras.
If these stories seem repetitive, it is only because I am trying to capture a taste of a very unusual time in our history. Many of the lessons to be drawn from this experience will only emerge after a period of reflection and analysis.
As courthouses across the country slowly begin to reopen, individual federal district courts are wrestling with the best way — if at all — to convene grand juries for criminal cases. Bloomberg Law has a good article exploring some of the approaches that different courts are taking. Among them: holding grand jury proceedings in the courthouse with social distancing, holding proceedings entirely online, and simply waiting to convene grand juries until the situation improves.
Each approach obviously has strengths and weaknesses. There are the obvious health concerns about bringing people into a building. But there are also important countervailing considerations. Purely online proceedings may not allow for a fair cross-section of the community, since essential workers and those without adequate internet access (among others) may not be able to participate. At the same time, simply waiting for the pandemic to subside is inconsistent with the efficient administration of justice. As time passes, memories fade and witnesses become harder to find.
So there is no simple answer here. But a system in which courts have the discretion to tailor their approaches allows court leaders to collectively learn from their successes and setbacks.
State trial courts in thirty New York counties are preparing to gradually reopen starting next week. Health precautions, including entry screening, masks, hand sanitizer, and social distancing, will obviously be the norm.
With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.
Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.
There will be much more to say in this story as it develops. Stay healthy and sane, everyone.
Like almost every law professor in the country, I will be teaching from home for the next several weeks. It’s been a quick adjustment to become competent in online learning platforms, but we’ll make it work. Someone recently pointed out that Gen Xers like me are mentally prepared for something like this, having grown up in the waning years of the Cold War. My millennial students get props for taking all of this is stride as well. In the meantime, blogging may be a bit lighter than normal as I juggle work and family from home.
Last night, the governor of Massachusetts shut down all K-12 schools, and most restaurants and bars, until April 7. The state courts are following suit with their own precautions, trying to thread the needle between providing access to justice and protecting the larger needs of the community. The trial courts have announced a triage plan, effective this Wednesday, that will rely heavily on videoconferencing and staggered schedules. The Supreme Judicial Court (SJC) entered two additional orders, one postponing all new jury trials until at least mid-April, and the other limiting access to state court facilities for anyone who is likely exposed to or carrying COVID-19.
We are in the thick of social distancing now, and these measures all make sense. It will be interesting to see how much videoconferencing and online communication with the courts is retained once things return to normal.