Adaptation and Innovation: Judicial Response and Lessons Learned from the COVID-19 Pandemic

The Bencher—July/August 2020

By Judge David W. Lannetti

Like virtually all other aspects of society, the administration of justice has been affected by the coronavirus pandemic. Many courts initially continued non-essential actions and gradually adapted to remote appearances by parties and their attorneys. Clerk’s offices quickly employed innovative measures to continue providing legal services to the public to the extent possible. Although change is seldom welcomed, some of the new court procedures arguably have proven to be improvements. As the judicial system transitions back to some semblance of normality, it is a good time to reflect on the operations of the past few months and assess what modified procedures might be employed moving forward, especially while physical distancing is required. At the same time, the importance of in-person interactions between the bench and bar—during both formal proceedings and informal activities—should not be ignored or underestimated.

Courts, like other organizations, were taken by surprise when the coronavirus arrived in the United States with little warning. Although most had some sort of written pandemic policy metaphorically collecting dust somewhere, the unfamiliarity with that policy, the unknowns associated with a novel virus, and the need to quickly adjust judicial operations led to a rocky transition in many jurisdictions. The initial emphasis was to continue to hear “essential,” time-critical cases, including criminal arraignments, bond hearings, protective orders, preliminary injunctions, and emergency child custody matters. Even these matters required modified procedures to minimize the number of people in the courthouse and reduce the transportation of incarcerated criminal defendants from local jails to prevent potentially exposing them—and others in the jail—to the coronavirus. Courts began to shift to remote appearances, something new to many courthouses. Consistent with the concern of a quick spread of the virus in confined areas, many jurisdictions started releasing non-violent offenders from jails early.

The concomitant delayed access to justice led to many jurisdictions waiving criminal speedy trial rights and staying all “non-essential” matters. Of course, almost every case is essential to the litigants involved, and some espoused the legal maxim that justice delayed is justice denied. In addition to the confusion stemming from some of the stay orders, including whether discovery-related deadlines were stayed, the virtual shutdown of courthouses led to huge backlogs in cases. In Virginia, for instance, 673,000 cases had been continued as of May 1. The state estimated that 97,000 cases a week are being added to the growing backlog. Meanwhile, most court clerk’s offices responded to the pandemic by working from home and making more services available online, via telephone, or via appointment; of note, however, many citizens have a true need for in-person services due to a lack of technology or related skills, a reminder that innovation can have drawbacks and unintended consequences.

Attention is now being shifted to the “new normal,” as courts attempt to balance public safety with maintaining current dockets—and hopefully chipping away at the enormous backlog of cases. Some version of physical distancing almost certainly will be with us for the foreseeable future, and it quickly has become obvious that courthouses, courtrooms, and current judicial procedures were not designed with this in mind. Hence, there are challenges and many yet-to-be answered questions: How will citizens respond to the call to serve as jurors in light of health concerns? How—and where—will courts facilitate voir dire, seating juries to hear cases, and providing juries appropriate spaces in which to deliberate? Will highly segmented judicial dockets become the norm? Should clear physical barriers be installed at key points of interaction with the public? Is it appropriate to conduct judicial proceedings that are not open to the general public?

But as much as human nature resists change, we must be mindful that change can be a catalyst for growth and innovation, often leading to previously unexplored and improved procedures. Certain proceedings are well-suited to remote hearings and can preclude out-of-area travel requirements, assuming that all parties are in agreement. Although virtual participation can directly lead to time and cost savings, proper attention must be given to connectivity issues, maintaining appropriate formality, and the inability to “read” certain nonverbal cues during the hearing. Many hearings and trials arguably can benefit from more stipulations, proffers, and affidavits, thereby minimizing the number of live witnesses. More emphasis should be placed on meeting with clients, working out plea deals, and conducting pretrial conferences in advance of court. Incorporating such changes can better serve clients, as well as provide effective and efficient administration of justice.

Amidst the evolution, however, we should not lose sight of the benefits of justice dispensed in the courtroom and personal interactions between attorneys and judges. And, when it is safe to do so, these in-person contacts should resume, as they provide unique value to the public, the bar, and the bench. Most courthouses are designed to reflect the dignity and importance of justice. Having litigants appear in these stately venues—complete with their solemnity and formality—reminds them of the judicial commitment toward, and reverence for, the rule of law.

Personal appearances also eliminate the “complications” often associated with remote hearings, including inappropriate dress, distracting backgrounds, unexpected pet visits, and inopportune noises. Simply stated, citizens and attorneys appear to take judicial proceedings more seriously when in the courtroom with a judge. Attorneys and judges also benefit from personal interactions. In the courtroom, they can read each other’s body language, work together to efficiently administer justice, and better coordinate pro bono service to the underprivileged. Outside the courtroom—via bar association and other bench-bar activities—they can get to know each other better, work to improve professionalism, and make the practice of law more enjoyable. In crafting a “new normal,” we should not ignore these important aspects of the profession, which make us and the justice system better. When we look back on this unique time in the history of the world, may we see it as a turning point for positive change.

Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s Fourth Judicial Circuit). He is a past president and current Executive Committee member of the James Kent American Inn of Court in Norfolk. Lannetti is also a member of the Editorial Board for The Bencher. The views advanced in this article are those of the author alone and should not be mistaken for the official views of the Norfolk Circuit Court.

© 2020 Judge David W. Lannetti. This article was originally published in the July/August 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.