Over the course of the past two years, the COVID-19 pandemic has had a tremendous impact and effect on our daily lives. Unfortunately, it was mostly negative. However, one area in which the pandemic had a positive impact is that it forced court systems across the country to modernize their practices and procedures. As was the case for many workplaces, the courts were shuttered for a period of time and, once reopened, were largely in a remote setting. As a result, the courts were prompted to act and determine how best to proceed and not shut down an essential branch of the government, realizing the necessity of the system to handle life-changing legal problems. They had to look to technology and how best that could be utilized going forward.
A few months after the start of the pandemic, courts had to update their processes to shift from paper filings to electronic, as well as from in-person hearings, arguments, and conferences to remote proceedings. In many states, while some aspects of criminal cases were held remotely, it was not common practice to do so in civil cases. The courts realized that they could not allow cases to be pending indefinitely as some civil matters can have tremendous consequences and could not wait until in-person proceedings began again at an unknown time. As the old saying goes, “necessity is the mother of invention,” and courts began to transition from in-person to virtual hearings, and from paper filing and document exchanges to a digital exchange of the information. In Texas, 1.1 million remote proceedings took place between March 2020 and February 20211. Between April 1, 2020 and June 1, 2020, Michigan held 35,000 video hearings, compared to zero in the same period one year earlier. On November 18, 2021, New Jersey Supreme Court Chief Justice Stuart Rabner noted in an order discussing future operations of the court that since the start of the pandemic, there had been more than 260,000 virtual court events involving more than 2.7 million participants. Prior to that, there were very few remote hearings in civil cases in New Jersey, and to the extent there were any, they were always by phone.
Other than finding a way to keep the legal process moving forward, these remote hearings have led to several additional benefits for litigants and their attorneys. By handling many matters remotely, proceedings are less costly for litigants who no longer have to travel, take off of work, and/or incur costs of sending witnesses and attorneys fees for hearings or conferences. In a volume-driven area of the law, such as collections, remote hearings allow for witnesses and attorneys to handle several matters in one day resulting in a more timely and effective prosecution of the case because there are fewer scheduling conflicts and requests for a different date. Allowing for electronic filing has streamlined the process and expedited the time it takes to process a filing.
With the above being the case, the courts must continue to do their best to ensure that all parties in a case have equal access to the courts and that the process is fair for all involved. Courts must design systems and practices to ensure a fair process for those who are less technologically inclined, who (for a variety of reasons) may lack access to sufficient internet equipment, or for whom English is not their first language.
As cases continue to decline and the COVID-19 pandemic is hopefully winding down, courts are now left with the question of “Do we return to the old way of operating or to the best way possible?” In answering that question, we can review how three states in which Weltman has a footprint are responding. As mentioned above, in New Jersey, there was an order
issued on November 18, 2021, wherein the Supreme Court provided that many aspects of the process would become virtual. Those included motion arguments, case management conferences, most settlement conferences, and most importantly, all trials for matters of less than $15,000.00. Court-ordered arbitrations
have largely continued remotely while trials on matters in excess of $15,000 are left to the discretion of the applicable county or judge.
Contrary to New Jersey, which has a uniform process across the state, Pennsylvania procedure differs from county to county. The Pennsylvania Rules of Civil Procedure
are largely silent on the use of Advanced Communication Technology (ACT)
. As it currently stands, Pennsylvania largely returned to in-person hearings before Magisterial District Justices, arbitrations, and trials. Some conferences have remained virtual in some counties, while they are back to in person in others. To remedy this issue, there are two proposed rule changes to allow for the expanded use of ACT in civil proceedings:
- The first is a proposed amendment to Civil Rule of Procedure 244, which would allow for the use of ACT in civil proceedings, subject to parameters established by local rule. Each judicial district would then determine the specific rules implementing ACT and for which proceedings ACT would apply, as well as the process to have a case heard virtually. This would greatly benefit Weltman clients who would no longer have to send in-person witnesses to trials or arbitrations.
- The second proposed change in Pennsylvania is with regard to Magisterial District Court Rules 202 and 215. The change to these rules would allow for more expansive use of ACT than currently provided for in cases before the local Magisterial District Justice, where a majority of collections claims are initially filed. The proposed rule would expand ACT to include both audio and video communication, whereas the current rule allows for audio only. However, the proposed rule would shift the determination of ACT from the individual district judges to the local rules as determined in each judicial district.
Finally, similar to Pennsylvania, the Ohio Supreme Court has proposed rule changes to provide for increased use of technology for remote hearings in an effort to make court proceedings more time and cost efficient. The rule amendments would take effect July 1, 2022, if they are adopted. Similar to Pennsylvania, the proposed rule changes would be entirely at the discretion of the court. The proposed changes to Civil Procedure Rules 1 and 16
would provide for pre-trial conferences to be held remotely. Civil Rules 39 and 43
would be expanded to allow a party to request that a trial or hearing be held remotely, in whole or in part, subject to the court’s applicable notice and timing restrictions. Finally, there are proposed amendments to the discovery rules to allow for remote depositions of witnesses located out of state via remote technology, which again will provide tremendous cost and time savings for those involved in the case.
Our team of attorneys is constantly monitoring for additional updates and proposed rules changes in all states where we practice as the courts adapt and continue to expand the use of remote technologies.
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
1"How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations", The Pew Charitable Trusts, December 1, 2021