Lawyers Should Burden The Judiciary Less During The Pandemic

Lawyers Should Burden The Judiciary Less During The Pandemic

Earlier in the COVID-19 crisis, I wrote an article about how judges and court officers are some of the unsung heroes of the pandemic. Many judges and court officers needed to appear in person to complete their jobs during each part of the pandemic because some essential court functions are difficult to perform remotely. As a result of the public-facing role of the judiciary, many judges and court officers were exposed to COVID-19 at shocking high rates, and numerous judges and court officers passed away due to COVID-19. Because numerous trials, hearings, and other judicial matters have been delayed during the pandemic, the judiciaries of many jurisdictions are currently struggling with a backlog of work. Moreover, states have needed to cut judicial resources to cover budget shortfalls, which is making the administration of justice more difficult in the present environment. As a result, lawyers should strive to burden the judiciary as little as possible for the remainder of the pandemic so that judicial resources can be spent on essential matters that cannot otherwise be resolved.

The sheer volume of litigation matters in many jurisdictions is having a significant impact on the administration of justice. Since many judicial systems have less staff because of budget shortfalls relating to COVID-19, many jurisdictions currently have a high number of outstanding litigation matters with fewer judges and support staff to oversee cases. Moreover — and this is second-hand knowledge (I’d love to hear from judges to get the inside scope about the allocation of resources) — jurisdictions seem to be prioritizing criminal matters over civil matters to ensure that criminal defendants get a speedy trial and are provided quicker resolutions to their cases.

Settling cases is often desirable for many types of matters because litigation is expensive, and it often makes sense to resolve a claim through settlement than to spend time and resources litigating a matter. However, parties often do not see eye-to-eye on the valuation of a case or believe that they may be able to recover more money if the case kicks around for a longer time. However, in the interest of clearing up as many outstanding matters as possible, lawyers should do everything they can to settle cases, even beyond what is done under normal circumstances. Such effort will help conserve judicial resources for the matters that are beyond a voluntary resolution.

Motions and other judicial requests can be somewhat burdensome for judges and their staff. When deciding motions, courts need to read the submissions, possibly hear oral arguments, and then prepare an order to resolve a disagreement. Despite these burdens, we all know lawyers who routinely run to court whenever there is a dispute in a case about discovery issues or other matters.

Nevertheless, in the current environment, lawyers should think more carefully about whether a matter absolutely needs to be resolved by judicial intervention. Attorneys should be more amenable to resolving disputes without filing motions and burdening courts. For instance, earlier in the pandemic, I requested an additional deposition of a party since the original deponent did not have information about an area of interest. My adversary obviously did not want to produce another deponent. Although I thought I was entitled to an additional deposition, I agreed to resolve the dispute by obtaining information through written interrogatories. This allowed me to obtain the information I required without holding a full deposition, which is often challenging in the current environment. More importantly, we did not need to burden the court with resolving our dispute and were able to find a solution that did not require judicial intervention.

Courts have quickly created new procedures to confront challenges posed by COVID-19. For instance, I have seen some courts use certain scheduling apps to coordinate remote compliance conferences, since such conferences often need to be held virtually in the present environment and such apps allow for easy scheduling. Other courts have also established new email addresses in order to receive communications about legal matters. Moreover, numerous courts have relaxed procedures relating to courtesy copies because court staff are often not in chambers to receive printed courtesy copies. Courts have also created specialized filing systems and other methods to administer justice in a manner consistent with the ongoing public health crisis.

I have heard some bellyaching by lawyers about the array of new procedures that have been adopted by different courts to meet the challenges posed by COVID-19. However, lawyers need to have more understanding about how courts are trying to maintain operations under unprecedented conditions and may have established an imperfect system. In any case, lawyers should do everything they can to become well-versed in the new procedures of the courts in which they practice and follow any new procedures to make it easier for courts to operate.

All told, judges and other court officers have acted admirably during the ongoing COVID-19 pandemic and have continued to administer justice under unprecedented conditions. In recognition of the challenges faced by the judicial system, lawyers should try to burden courts as little as possible by resolving matters on their own and embracing procedures adopted to meet current conditions.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.