When the Courthouse Doors Are Closed: Trials in a State of Emergency

• Publication year: 2021
• Author: Hon. Craig G. Riemer

When the Courthouse Doors Are Closed: Trials in a State of Emergency

Hon. Craig G. Riemer

Craig G. Riemer is a Judge of the Superior Court of California for the County of Riverside. He is a graduate of the University of California, Riverside (B.A. 1977) and the University of California, Los Angeles (J.D. 1980). After practicing business and real property litigation for ten years, he joined the staff of the Court of Appeal (4th District, Division 2) as a research attorney. In 2003, he was appointed to the trial court bench. He has presided over vertical civil trial departments for most of his 18 years on the bench, including over four years in a complex civil department.

INTRODUCTION

Since March of 2020, the doors into many of the nation's courthouses have been closed in response to the worldwide COVID-19 pandemic. But except for the first few months, the civil justice system has continued to operate behind those closed doors. Case management proceedings, hearings on motions, and trials have continued to take place. Although counsel, litigants, witnesses, and jurors could not come into the courtroom in person, they could appear remotely, through videoconferencing software such as Zoom, Webex, and Bluejeans.

The transition has not been easy. To conduct remote proceedings, both judges and lawyers have been forced to learn unfamiliar software programs. To take advantage of those programs, both sometimes had to buy new equipment. The courts had to adopt different procedures. But after some initial confusion, technological challenges, and inevitable errors, we discovered that remote proceedings work.

COVID-19 is not the first, and certainly will not be the last, disaster to interrupt the operations of our trial courts. Until the current state of emergency has ended, we need to be prepared to conduct our trials remotely. Moreover, because any emergency of significant duration will produce an even greater backlog of cases to be tried, reduce the number of courtrooms available to conduct those trials, or both, we need to hone our trials so that they can be conducted as quickly and efficiently as possible.

I. THE PANDEMIC IS ALMOST OVER, SO WHY SHOULD I CARE ABOUT REMOTE TRIALS?

As this article is written, the pandemic, at least in California and most of the country, is waning. Governor Newsom has predicted that all limitations on occupancy of stores, bars, restaurants, theaters, and courthouses will be lifted by the middle of June of 2021. If life is going back to normal, why should we care about conducting remote trials? There are at least three reasons.

First, the prediction may be wrong. When the emergency stay-at-home orders were issued back in March of 2020, many of us assumed that the closures of our courthouses would be of short duration, and that we would probably be back to conducting in-person trials again within a few months, and certainly by October or November. That prediction turned out to be wishful thinking. Although the current prediction is based on much better information, it could also be wrong. Whether because of a new variant of the virus, because too many of our fellow citizens refuse or fail to receive a vaccine, or because too few of our fellow citizens continue to wear masks and to maintain safe distances from each other, we could find ourselves in the midst of the so-called Fourth Wave. In short, we cannot guarantee that the courtroom doors will be open in June of this year, or even of the next.

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Second, even if the COVID-19 pandemic continues on a downward glidepath here in the United States, it will undoubtedly not be the last pandemic to strike us. Whether it is Ebola, another coronavirus like SARS and COVID-19, or something entirely different, it will come. Although a hundred years passed between the influenza pandemic of 1918 and the onset of COVID-19, we cannot reasonably assume that four or five generations will pass before the next pandemic. Given the increases in both world population density and international travel, it likely to come much sooner. Whether the next pandemic arrives in five months or five years, we should start preparing now by becoming familiar with the presentation of trials remotely.

Third, pandemics are not the only catastrophic events that can prevent you from getting into a courthouse. Even if the next pandemic does not hit the state before we retire, some other sort of disaster probably will. Whether it is an enormous forest fire that engulfs an entire northern county, a 7.5 earthquake that devastates the freeway system in the Los Angeles basin, or something more modest in scope, there will be future situations in which either the courthouse doors are shut or counsel and witnesses have no means to travel to the courthouse. In short, even if the present emergency goes away, other emergencies will arise that will make the presentation of an in-person trial difficult if not impossible. Therefore, we all need to develop the skills to conduct trials during those challenging circumstances.

Even in the absence of any existing or imminent emergency, there is more reason to become comfortable with this new approach: It has the potential to save your client money. Think of the expert witness that you would like to call. The expert charges $5,000 per day, whether for testimony or for travel. The expert lives out of state, and will incur at least one day in travel, possibly two depending on the timing of the testimony. Even if the rest of the trial is conducted in person, presenting that expert's testimony remotely will reduce the cost of that testimony from $10,000 or $15,000 down to $5,000. But that savings is possible only if counsel is willing to master the technology and the procedures for presenting that expert's testimony remotely.

II. FUTURE EMERGENCIES WILL REDUCE THE SUPPLY OF CIVIL COURTROOMS

The precise impact of an emergency on the ability to conduct a trial will obviously vary according to the nature of the particular emergency, the severity of its impact, and the geographic scope of its impact. However, it is safe to make two assumptions: (1) that the emergency will reduce the number of courtrooms conducting trials, possibly to zero; and (2) that after the emergency has abated, the demand for civil trial courtrooms will greatly exceed the supply.

Courtrooms may be closed for many different reasons. As we have recently seen, the threat of disease may require the court to bar attorneys, litigants, witnesses, and jurors from entering. The same threat may deprive the court of judicial officers or other staff. In a different scenario, courthouses may be destroyed or damaged by fire, flood, earthquake, riot, or insurrection. Depending on the nature and scope of the emergency and the resources of the particular court system affected by it, it may shut down some, most, or all the trial courtrooms. For instance, in 2020, Riverside County Superior Court suspended all trials, in all types of departments, for several months. As the emergency abates, or as the court figures out how to operate despite the ongoing emergency, trials will resume. But unless the duration of the emergency was very short, the effects of the suspension of trials will be felt long after trials resume. That will be particularly true for trials of civil cases. Criminal defendants have a right to a speedy trial.¹ Civil litigants have no comparable right. Therefore, when the court can open some but not all of its trial courtrooms, the first to be reopened are likely to be devoted to criminal trials. The resumption of criminal trials may slow or stop the growth in the backlog of criminal cases awaiting trial, but the number of civil cases awaiting trial will continue to grow.

Even when civil trial departments are able to open, they may not be trying civil cases. Because of the backlog of criminal trials and the constitutional and statutory imperatives to try those cases within limited time frames, the court may find it necessary to suspend civil trials so that criminal cases may be tried in courtrooms normally devoted to trials of civil cases.² In short, not only will the civil backlog have grown over the length of the emergency, but the number of courtrooms allocated to the trials of those cases may have shrunk. Thus, even after the emergency has abated, the combined effect of that greater workload and smaller workforce will mean that one resource will be in very short supply: trial time in civil trial departments.

A. Adapting to the Scarcity of Trial Time

The scarcity of trial time will affect both the managers of that resource—the civil judges—and the consumers of that resource—counsel in civil cases. The civil judges will seek to allocate that scarce resource as efficiently as possible, so that as many civil cases as possible can be tried within the limited trial-time available. Those cases which can be tried more quickly and efficiently are likely to be tried ahead of those cases in which counsel do not appear to be concerned with efficiency.

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Civil trial counsel will be competing for the limited trial spots available. Because efficiency is one of the primary criteria that the judges will be applying when determining which of the competing cases will be tried, wise counsel will come to the trial date, or to the trial readiness conference, prepared with a plan that demonstrates that the trial time will be used as efficiently as possible, and that the trial will be as short as possible.

B. Achieving an Efficient Trial

Efficiency can be achieved by thoughtfully and realistically considering exactly what you need to prove and what is necessary to prove it.

1. Issues to Consider Before Beginning Any Trial

(a) What Is the Underlying Dispute Between the Parties?

Is the primary dispute a factual one: what happened; what the parties did or did not do; and what resulted from those acts or omissions? Or do the parties simply disagree over the law, i.e., over the legal consequences that flow from those...