WHAT'S HAPPENING

California Courts During and After COVID-19

Introduction

Courts across the United States universally have been impacted by the ongoing COVID-19 pandemic. While some jurisdictions have coped well, other jurisdictions have struggled to provide safe and meaningful access to courts. California, the country’s largest state, faces unique challenges, and its courts face a significant backlog of cases as a result.

On February 10, 2021, Judge Jeremy Fogel (the current Executive Director of the Berkeley Judicial Institute) moderated the “COVID and the Courts” seminar, which addressed some of the challenges California courts are facing. Panelists included Judge Anthony J. Battaglia (United States District Court – Southern District of California in San Diego), Judge Kirk Nakamura (Orange County Superior Court), Judge James Donato (United States District Court – Northern District of California in San Francisco), and Judge Ursula Clemons, who recently retired in December 2020 as the Presiding Administrative Law Judge at the Cal/OSHA Appeals Board.

The panelists provided valuable insights into the impacts of COVID-19 on California courts generally, how courts are addressing case backlogs, and what pandemic-driven adjustments they would like to see continue after California exits the pandemic.

California Courts and COVID-19

Judge Battaglia says that the United States District Court for the Southern District of California has successfully leveraged Zoom and telephonic hearings to help keep courts open and accessible throughout the pandemic. His court used funding provided under the U.S. Coronavirus Aid, Relief, and Economic Security (CARES) Act to acquire and rollout Zoom and other solutions that enable parties and witnesses to appear remotely for hearings and trials when necessary. Judge Battaglia also reports that the Southern District successfully completed 25 in-person trials (both civil and criminal) between March and December 2020. To aid these efforts, the court worked with public-health experts who recommended the use of clear plastic masks for use by the judge, jury, attorneys, and parties. The clear masks facilitate non-verbal communication, which is essential to in-person hearings and trials. In addition to masking, the court has relied on a robust HVAC system to pump fresh air into the courtrooms, and the courtrooms themselves are spacious enough to permit effective social distancing.

Judges Donato, Nakamura, and Clemons largely echoed the themes that Judge Battaglia addressed, though Judge Donato notes that civil jury trials in the Northern District of California have not continued since the first shelter-in-place order was implemented in March 2020. Even so, Judge Donato notes that Zoom has facilitated procedural hearings, conferences, and in some cases, access to bench trials when and where parties have waived their right to jury trials.

Orange County, for its part, has completed an astonishing 170 in-person trials, which includes 29 civil trials, between March and December 2020. Orange County has been able to use extra court space to maintain social distancing for jury deliberations, and the court has scheduled trials on the first floor and in courtrooms accessible by escalator, in order to avoid crowding in elevators. The Cal/OSHA administrative courts also have adapted well. The Cal/OSHA courts have successfully rolled out Zoom hearings, which are facilitated by pre-hearing conferences that assist the parties with technological issues before hearings start and have helped to limit its backlog. Similarly, Los Angeles County has implemented a proprietary videoconference system, LACourtConnect, for remote court appearances, including mandatory settlement conferences that we have participated in during the pandemic. The transactional fees necessary to participate remotely are modest: $15 for audio and $23 for video.

A common area of concern that each of the panelists discussed, however, was meaningful access to technology—especially as it relates to criminal cases. This issue primarily concerns socioeconomic status and access to adequate technology and high-speed internet. For example, Judge Donato notes that the Northern District puts over any criminal hearing for out-of-custody defendants who do not have access to adequate technology or internet. Unfortunately, these continuances have exacerbated the backlog of cases in the Northern District, which also impacts its civil docket, since by rule the criminal docket is prioritized.

Case Backlogs

According to the panelists, a unifying theme across California courts is a large backlog of both criminal and civil cases, though the issue is somewhat less pronounced in Cal/OSHA’s administrative courts. As discussed above, Cal/OSHA’s administrative courts achieved early buy-in from stakeholders and do not need to address the complications presented by juries since all administrative proceedings are bench trials. Both federal and state courts, for their part, are addressing backlogs by prioritizing in-custody criminal trials and hearings. For example, civil courts are directing litigants to settlement conferences and encouraging bench trials in order to help clear the backlog.

The news is not all bad. The panelists discussed many positives, including greater public access to trials with significant public interest. They also noted that the widespread use of video conferencing has cut down on travel, which may have a positive environmental impact, promote training (cost of associates attending hearings and trials is greatly reduced), and help improve attorneys’ work-life balance.

After the Pandemic

The panelists are optimistic that as California exits its current pandemic posture, courts will continue to leverage technology to not only clear case backlogs, but also provide greater access to justice and civil relief. Zoom and similar technologies can be leveraged to conduct hearings more efficiently and reduce litigation costs and barriers (e.g., travel time for parties and witnesses), which hopefully will promote greater access to the courts.

Conclusion

Once California exits the pandemic, we are of the mind that courts should continue to rely on Zoom and other video-conferencing solutions to get back on track. It will be critical to ensure that courts not only have adequate funding, but also that rules (where necessary) are changed. For example, Judge Donato encourages attorneys, judges, clients, and the public alike to contact their representatives and local courts to voice their support for the continued use of video conferencing in federal courts, which presently is authorized on an emergency basis only and likely will be rolled back unless the rules are changed.

Parties and lawyers alike have adapted to these technologies admirably, and we at Atheria would welcome their continued use in California’s courts when and where appropriate in order to improve judicial efficiency and provide greater access to justice.