Crisis Is the Mother of Change: How a Pandemic Sparked Progress in Courtroom Efficiency

• Publication year: 2021

Alison Arden Besunder^*

Abstract: American courts, especially state courts, aren't known for being on the forefront of technology, and the rules set by state and federal courts have limited the use of some modern technology that many of us take for granted in our personal and professional lives. But the COVID-19 outbreak left courts with little alternative; it was either stop the judicial system in its tracks or adjust the rules. This forced the adoption of some efficiencies that many lawyers had been hoping for, and now hope are here to stay. This article discusses those changes and the impact they are having on the judicial process.

COVID-19 forced the courts to reckon with persistent inefficiencies in their systems and operations, particularly with respect to state courts. The pandemic further shone a spotlight on the existing technological infrastructure of court systems and law firms alike, many of which disconcertingly found that their technology was woefully inadequate to meet the needs of working remotely on a full-time basis. Although state court processing efficiencies vary state by state and locality by locality, as well as type of court and their volume of cases, many courts were inefficient and suffered from backlog and slow processing even before the onset of the pandemic. These inefficiencies led to increased costs in legal fees to clients, a resulting interference with access to justice, and badly needed dispute resolution in the commercial and contractual arena.

COVID-19 initiated a waterfall of change in state's court systems. As with the dust pile of Dictaphones, fax machines, and carbon copy paper (fun fact: "cut and paste" literally meant to cut and paste the paper in front of you), COVID catapulted an industry comfortably clinging to the antiquated "way it's always been done" into the deep end of the future, leaving us with little choice but to adapt.

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Since the pandemic has been raging for a full year, it should be clear to the legal profession that the "new normal" is here to stay for the foreseeable and perhaps distant future.¹ For all the enthusiasm some may feel about the long-awaited shift, such as avoiding the "time sink" of enduring several hours in court—not to mention traffic (reported to be 54 hours per year for the average commuter)—for a 10-minute conference, there are also irritants attendant to working from home, and litigation is no exception.²

Despite the initial shock of being completely remote for both the courts and practitioners, the interim solutions that were implemented bode well for long-term changes and improvements to efficiencies as courts ease back to normal operations. Hopefully, the courts will continue to use the available technological options that they have already implemented and continue to focus on streamlining operations and maximizing efficiency and productivity. Some of the impacts of the COVID pandemic, both positive and negative, and the prospects for the "new normal" of litigation in the court system, are discussed below, along with key considerations that the courts and practitioners should focus on to strengthen their foundations for the current situation and any future emergencies.

Who's in Your WiFi?

Remote work, or "telecommuting," can only be as seamless as the technology permits. Telecommuting necessarily assumes continuous electricity and WiFi with enough bandwidth to support the many people working and schooling from home. In early August, Hurricane Isaiah unexpectedly threw out power along the East Coast for days, disrupting the otherwise continuous flow of remote work that many had adapted to.

Law firms and courts alike were forced to rely on their employees' own personal computers, left without enough company or court laptops to dispense to each employee. This raises security, privacy, and confidentiality concerns that are almost impossible to entirely protect against from hundreds if not thousands of locations inside and outside a particular state.

Adding to the challenges to infrastructure is the technological capability of human resources and court personnel. Many are not up to date on new software or the tools within that software to work quicker and more efficiently. (Another fun fact: some court personnel and practitioners in New York continue to use Corel WordPerfect).

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A written policy regarding remote working procedures is advisable for any organization whose employees are working outside of the security confines of a centralized office. Employees and court personnel should sign a confidentiality and security policy that reminds them not to work over public WiFi networks and to maintain a password on laptop computers.³ Greater efforts should be given to continuing technology education for employees and personnel to ensure technology agility.

Out-of-Office Collaboration and Where We Work

COVID quickly exposed a pre-existing generational divide in the attitudes toward remote work or "work from home."⁴ In light of the continuing safety protocols and social distancing, workers and employees need to adapt to working remotely and telecommuting as a "new normal" and not just an exception or an earned privilege. For law firms especially, this leads to the need to reformulate criteria for what constitutes productivity.⁵ It is also incumbent on employers and court supervisors to encourage improving on communication skills and utilizing tools to collaborate rather than just popping into an associate's office and expecting her or him to always be available at the desk.⁶ This can be challenging in litigation, which tends to be paper-heavy, whether by preference, necessity, or a combination of the two. Moving toward digital record keeping, scanning, and securely shared...