Courts Move Toward Regular Operations -- Speeds Vary

Procedures are largely up to each individual U.S. circuit or district court, said Federal Judges Association (FJA) President Rick Clifton, a 9th U.S. Circuit Court of Appeals judge in Honolulu. He said that circuit continues to do remote oral arguments and the courthouses are closed, and it’s “inching toward more normal operations.” “Different organizations are working at different paces,” with employee safety and local conditions key when considering timing of reopening courthouses, he said. The Prettyman U.S. Courthouse in Washington is tentatively planning for resumption of in-person proceedings in September (see 2107160066).

When the Administrative Office of U.S. Courts, in the Marshall Federal Judiciary Building in Washington, D.C., reverts from working largely remotely could be a signal to a lot of individual federal courts, Clifton said. “People are conscious of that operation being mostly remote.” The AO didn't comment last week.

A deputy to FJA immediate past President Cynthia Rufe, a U.S. District judge in Philadelphia, emailed that the courts are “working hard to return to more normal court operations.” Rufe’s office forwarded a Pennsylvania Supreme Court order earlier this month declaring the state’s Unified Judicial System as of July 6 had a “return to prepandemic status” with courtrooms, chambers and offices “fully opened and staffed.” As of July 12, all clerks’ offices and public counters for the Washington Court of Appeals and Superior Court will open, and use of in-person jury trials will expand, though hearings will remain remote or partially remote, the D.C. Courts system said.

The D.C. Court System at least through Sept. 10 is continuing to conduct all civil hearings remotely except for jury trials, Chief Judge Anita Josey-Herring ordered last week. Except for jury trials, parties or attorneys aren't to appear in person unless told to do so by a judge, per the order. More details are at 2107160066.

Louisiana state Judicial District Judge Scott Schlegel said numerous Louisiana courts have been fully open for months, conducting trials, though they capped jury trials to two or three weekly. "It certainly hasn't been wide open," he said. Courts employed such precautions as having jurors spaced across the courtroom instead of in the jury box, and everyone vacating the courtroom instead of sending the jury to the jury room, he said. As of July 1, those caps ended, he said. Judges will take "as many precautions as we can," Schlegel said, saying he would allow the jury to use the courtroom to deliberate if needed. Schlegel emailed Friday that the end of those caps has meant "no problem at all" and that he has handled a pair of civil jury trials since.

Use of videoconferencing in court hearings is seen as one trend likely lasting well beyond the pandemic.

Virtual Court

Remote hearings via video were relatively rare for most courts nationally but going forward will be part of "the new normal," said CCJ's Hecht. He said handling of traffic tickets and non-jailable criminal offenses will likely be done by remote hearings and trials, as will family court proceedings. Large civil trials might not follow that practice. "Just handling the exhibits alone is really difficult," he said. Hecht said increased use of videoconferencing could have far-reaching effects on staffing and on in-person attendance.

Louisiana's Schlegel said use of video is "going away somewhat," with more people returning to in-person court appearances and hearings. He said it's "judge-dependent," and for some proceedings such as a motion of summary judgment or discussion of documents, "I see no reason to come into court." He prefers in-person witness testimony: "I'm obsessed with technology ... but some things should be done in the courtroom. Technology can't solve every problem."

The 9th Circuit's Clifton said the court and appellate practitioners have had discussions about the effectiveness of videoconferencing and making it a more-permanent option. He said practitioners and judges widely see video as having worked well, but it’s not a perfect replacement for in-person. Technical issues like a poor connection can hurt a lawyer’s presentation, he said. “The story is told in the briefs,” so oral argument rarely changes an appeal's outcome, he said. Making video a permanent option raises questions of whether there’s an advantage if a lawyer appears physically, Clifton said. He said the court might lean toward leaving it to lawyers’ discretion.

Editor's note: This is part of our ongoing coverage of the COVID-19 pandemic and its effects on telecom and associated sectors. Our article on virtual oral arguments is here. Surveys of convention plans are here and here. Our latest update on virtual congressional hearings is here. Our most recent update on FCC pandemic transparency is here. And an update on recent days on the agency's eventual physical reopening is here.