When COVID struck in March 2020, the courts reacted by implementing several orders to keep the wheels of justice turning. Now that we are somewhat turning the chapter on it, the question is what should the new normal look like?
Obviously, there is no need for an emergency order to continue jury trials. In fact, I just completed a jury trial at the Metropolitan Courthouse with everyone wearing masks, jurors spaced out around the room and surprisingly, it went pretty smooth. Jury selection took three times as long though because not as many jurors showed up for jury duty and when they did, only a limited amount could be in the courtroom at once for social distancing purposes.
Moving forward, I propose thought that two of the major COVID changes remain in effect – webex appearances and business casual attire.
Apparently, the courts spent over $10 million by installing video conferencing in each courtroom. Rather than having to personally appear, attorneys simply call the court clerk to obtain the call-in number or video link to make the appearance. The technology is extremely useful for handling simple appearances that require little more than a continuance. It has saved lawyers, court staff and civilians countless hours in travel and traffic. Now that we have this efficient system in place, we should continue to take advantage of it.
There is a legitimate concern that abuse of it could lead to attorneys needlessly continuing cases, rather than coming to court in person to resolve them. That can be solved by judges issuing guidelines on when an attorney can use webex. Perhaps limit it to the first 2-3 appearances on a case. Alternatively, a judge can use their discretion and on a case-by-case basis let the attorney know if the next appearance would require in-person attendance.
In terms of witness testimony, if both sides stipulate that the witness can appear via webex, then why not permit it? The prosecutor and I both had witnesses testify via webex in our last trial and it was win-win for everyone.
In the same vein, the courts have been allowing criminal defense attorneys to appear on their clients’ behalf on felony matters, when usually that courtesy is only extended to misdemeanor cases. This experiment has proven to be successful and felony cases have been resolving smoothly, like misdemeanor cases. Why not keep this momentum up?
The point is that COVID has forced us to think and work outside of the box. An unintended benefit of it is still at our disposal. Let’s not waste it.
Since April 2020, attorneys and court staff have been permitted to dress casual in the courts. While no one quite understood why, it was quickly embraced by the legal community. And it has been liberating to not have to wear a suit and tie to court for the past year. It is almost as if the courts have finally caught up to the rest of professional culture when it comes to wardrobe. This has created a more friendly, warm and collegial atmosphere in the courthouses. Shawn Achor, a NY Times bestselling author of The Happiness Advantage and Big Potential said, “Happiness Inspires Productivity.”
I’m not suggesting that it be a free-for-all. Perhaps the courts can allow for business casual from Monday through Thursday and even allow for casual Friday. (Maybe I am pushing it a little on that one.) Certain types of hearings such as trials should continue to call for formal attire.
We are now at crossroads and decisions to come will likely last in the courts for the next 100 years or longer. Hopefully, there won’t be another global pandemic that will require them to be re-visited. Let’s not be so quick to blindly dial back to the way things were. Over the last 15 months we have made so much progress in the courts. And it would be such a shame to squander it.