Civil Justice in the Pandemic: Innovations, Recommendations, and Redefining Normal, 0721 COBJ, Vol. 50, No. 7 Pg. 8

PositionVol. 50, 7 [Page 8]

50. Colo. Law. 8

CIVIL JUSTICE IN THE PANDEMIC: Innovations, Recommendations, and Redefining Normal

No. Vol. 50, No. 7 [Page 8]

Colorado Lawyer

July, 2021



We are now over a year into the COVID-19 pandemic. While everyone has experienced the pandemic uniquely, it is also a shared experience across our state, our country, and our world. The same is true of our courts. While each jurisdiction has had unique experiences and made individual decisions related to the pandemic, our court system has collectively had to face the challenge of ensuring continued access to, and the delivery of, justice during this time. The result of this challenge has been innovation at a scale and a pace that we haven't seen before—amounting to a yearlong national pilot project for both state and federal courts. At the same time, this has caused many to reframe how we think about courts: not just as a place but as a service.1 While challenging, this process is ultimately to the benefit of our system atlarge. As Michigan Chief Justice Bridget Mary McCormack has shared regarding the impact on our courts, "the pandemic was not the disruption we wanted, but the disruption we needed."2

Pilot projects are a common way to test innovations and reforms in courts before being put in place permanently, and Colorado is no stranger to pilot projects or innovation. For example, beginning in 2012, Colorado adopted a pilot project to test a set of new pretrial procedures designed to increase access to civil justice by reducing cost and delay.3The Colorado Civil Access Pilot Project (CAPP) included new procedures for pleadings, disclosures, discovery, and case management.4In 2015, the Colorado Supreme Court adopted statewide amendments to the Colorado Rules of Civil Procedure, incorporating the best of CAPP and mirroring the rule changes at the federal level that would go into effect later that year.5 By looking ahead to the upcoming rule changes at the federal level, Colorado stepped out as the first state to incorporate the federal amendments, even before they went into effect in the federal courts.

While not a formal pilot project, we nevertheless have gone through a year of innovation in response to the challenges of COVID-19. We have the opportunity to once again learn from the experience, allowing us to chart a path forward as we move out of the pandemic and put in place innovations and new practices to improve the administration of justice going forward.6

Civil Justice Reform Efforts Pre-Pandemic

CAPP was part of a larger nationwide effort to implement civil justice pilot projects in state and federal courts to test improvements to the civil justice process.[7] Some jurisdictions implemented pilot projects to test new civil procedures, such as New Hampshire and Iowa. Others moved forward with permanent amendments to their civil rules, such as Utah and Texas. Together, these state civil justice reform efforts provided experience and empirical evidence to support reforms at the federal level, including the 2015 federal rule amendments.8

Building on these lessons learned from individual state reform efforts, and given the challenges facing our civil justice system, the Conference of Chief justices (CCI) launched an effort to examine the civil justice system as a whole and develop a comprehensive set of recommendations to transform our civil justice system to meet the needs of the 21st century.9CCI created a Civil justice Improvements Committee, supported by the National Center for State Courts (NCSC) and IAALS, the Institute for the Advancement of the American Legal System. In 2016, the committee issued a report with 13 recommendations for improving our civil justice system and a call to action to the state courts to adopt them. As Chief justice Thomas Balmer, committee chair, shared at the time, "our state courts need to transform themselves and the way they deal with the public and the legal community if they are to continue to ensure access to justice in the 21st century."10

IAALS has worked in partnership with the NCSC on a follow-up three-year Civil Justice Initiative (CJI) project, with support from the State justice Institute, focused on implementing these recommendations. From 2017 to early 2020, IAALS and the NCSC provided education, technical assistance, evaluations of pilot projects, and a number of practical tools and guidance to help state courts implement the recommendations nationwide.11

Civil Justice in the Pandemic

Enter the pandemic and its immediate challenges for our court system. Courts had to make quick decisions to ensure continuity of operations and access to justice in the face of public safety guidelines and restrictions. The five most common responses of courts during this time included:

■ restricting or ending jury trials;

■ restricting entry into the courthouse;

■ generally suspending in-person proceedings;

■ granting extensions for court deadlines, including deadlines to pay fines/fees; and

■ encouraging or requiring teleconferences and videoconferences in lieu of hearings.12

In March 2020, CCI and the Conference of State Court Administrators (COSCA) established a Rapid Response Team (RRT) to provide guidance to state courts through this time of national emergency. To achieve this goal, the RRT created a series of working groups to help issue guidance and recommendations, both for what can be done during the pandemic to ensure access and how to resume court operations as we move beyond the pandemic.13Areas of focus included the study of court management (including civil; criminal; children, families, and elders; and appellate), a technology working group, and a communications working group.

The working groups have provided hundreds of webinars, "Tiny Chats," bench guides, checklists, guidance documents, and other resources to help courts deal with the challenges presented in the pandemic.14

This work builds on, and often refers back to, the CJI recommendations issued by CCJ and COSCA in 2016. At the core of those recommendations was

the premise that the courts ultimately must be responsible for ensuring access to civil justice. Once a case is filed in court, it becomes the court's responsibility to manage the case toward a just and timely resolution. When we say "courts" must take responsibility, we mean judges, court managers, and indeed the whole judicial branch, because the factors producing unnecessary costs and delays have become deeply imbedded in our legal system.[15]

The pandemic has driven this responsibility home, as the courts have had the important responsibility for maintaining access to justice and the rule of law during this time. What follows is a collection of this work across a number of different innovations, with highlights and recommendations.

Remote Hearings

One of the key innovations that has been embraced by state and federal courts across the country is the use of videoconferencing platforms to conduct routine hearings during the pandemic. The Call to Action report highlighted the need for courts to take steps "to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services," including promoting the use of remote audio and...

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