BUSINESS LAW 101 / CORONAVIRUS AND THE COURTS

By Albert L. Kelley

Concerns over the coronavirus have spread to every aspect of our lives.  Schools have extended spring break; colleges have switched to online classes; grocery stores are closing early; people have stopped shaking hands as social distancing becomes a trending phrase.  Even in the halls of government we hear of more legislators self-quarantining themselves after potential exposure. The legal system is not immune to the effects.

It is rare that our court system shuts down; as a constitutional part of our government, it must continue to operate so the rights of the people can be protected.   People who have been arrested have a right to a speedy trial so those who are innocent do not languish in our jails. Those who have property at risk have a right to emergency hearings to prevent it from being lost.  Landlords are entitled to remove tenants who are damaging their property or not paying rent. Sometimes it seems the wheels of justice move slowly, but they do move. Until an emergency occurs. 

After Hurricane Irma, many Courts were closed.  Provisions were put in place for emergency matters, but the day-to-day court proceedings were stopped, while people and infrastructure were returned. The coronavirus is not presenting an infrastructure emergency like Hurricane Irma, but it is presenting a people emergency. With the government telling us to reduce large gatherings and to keep our distance from other people, the courts search for solutions that will keep justice moving and protect those that are involved in judicial proceedings.  Some of the answers will be temporary; others may result in a new system of procedures. 

The legal system presents difficulties in the administration of justice with social distancing. Lawyers and their clients must sit close enough together that they can talk without being overheard. Jurors routinely sit mere inches from each other in a small jury box, and on busy days such as arraignments, the gallery is packed shoulder-to-shoulder.

Last week the Chief Justice of the Supreme Court issued an order that “all grand jury proceedings, jury selection proceedings, and criminal and civil jury trials are suspended during the period beginning Monday, March 16, 2020, through Friday, March 27, 2020”.  The Order also suspended the speedy trial rule through the end of the month. This does not mean the Courts are closed; they will continue with other activities but will also search for ways to proceed that limits face-to-face communications. Luckily, some of these procedures have already been implemented.

Years ago, in certain circumstances, lawyers were allowed to appear telephonically for some hearings.  This was done sparingly as the court often only had one or two phone lines and often those were only in the Judge’s chambers.  Today most every courtroom has a telephone and most judges have adopted a system such as Courtcall, where lawyers call in to a conference line and attend the hearing without being physically present.  Courtcall allows countless lawyers to participate, so the judge could technically hold the hearings with nobody physically present. This does lead to difficulties in evidentiary hearings where documents must be shown and submitted and even judges who use Courtcall often want personal appearances in certain matters such as pre-trial hearings.  

What the coronavirus has done is given us a glimpse into the future of litigation.  While many changes are short-term, designed to get us through the crisis, other changes may be long-lasting.  Courtcall will likely evolve to videoconferencing (a capability already present), where all hearings will be held on video. This videoconference would also adopt the use of whiteboard technology, where documents and drawings can be viewed by everyone on the conference call.  With split-screen technology, the video could be divided to allow the judge to view each lawyer, party and witness simultaneously. For jury trials, the entire proceeding could be filmed out of the jury’s presence and then edited to remove objectionable questions and sidebar conferences.  The jury would then just watch the edited content before making a ruling. This could also shorten the appeal time as an overturned case may not need to be retried; just re-edited and shown to a new jury.

The coronavirus is certainly making life difficult in the short-term, but we should look at it in another way – an opportunity to move forward.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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