Lawyers Urge Uniformity in Courts’ Pandemic Response

Remote technology use and pandemic safety measures lack uniformity across California courts, Tuesday’s state legislative hearing revealed.

San Francisco Superior Court. (Courthouse News photo / Maria Dinzeo)

(CN) — Legal aid attorneys urged California lawmakers on Tuesday to impose uniformity on state courts trying to operate in the pandemic, favoring rules that promote technology to resolve cases over in-person hearings, and consistent health and safety guidelines for the state’s 58 trial courts.

The lawyers said their experiences have differed wildly in various courtrooms throughout the state. One court allows remote appearances, while in another court, a judge insists that all parties show up in-person. One court waives expensive call-in fees, while another does not.

“Whether a person has to appear in person or can call in may depend on a judicial officer’s preference and interest in learning the technology,” Genevieve Richardson, executive director of Bay Area Legal Aid, executive director of Bay Area Legal Aid, told lawmakers at a judiciary committee hearing hosted by both legislative houses on how the courts can recover from the disruptions caused by Covid-19.

While most courts have shifted operations either entirely or at least partially online, Richardson said some continue to require litigants and attorneys to crowd into courtrooms for routine matters.

“For example there are in person hearings on fee waivers, traffic citations and evictions,” she said.

Such requirements in the LA County Superior Court prompted a lawsuit earlier this month by pro bono firms like the Inner City Law Center in Los Angeles.

“The fact that this is still happening is insane,” the center’s executive director Adam Murray said Tuesday. “The fact that we are continuing to conduct in person proceedings in non-essential matters when we are in the midst of the worst public health crisis our country has seen in 100 years makes no sense to me.

The problem, he said, stems from 58 different rules for 58 different courts. “We have set up a system where 58 different county courts are making a decision about what is open and closed and what remote procedures are. Then we have individual departments in those courts making those decisions.”

At the start of the pandemic, the state’s policy-setting body for the courts issued 13 emergency rules that among other things, suspended bail for most criminal offenses, halted evictions, and allowed most hearings to be conducted remotely.

In this September 2020 photo, several recent law school graduates protested the California Supreme Court’s refusal to make the state bar exam’s new lower passing score retroactive. (Courthouse News photo / Maria Dinzeo)

But statewide rules, Chief Justice Tani Cantil-Sakauye told the joint committee, don’t take local court culture into account. And while offering guidance, the Judicial Council has largely allowed courts the flexibility to operate as they see fit. “It seems simple to say a statewide rule will work,” she said. “But we know that’s not always the Band-Aid that suffices to fix the problem.”

Since last March, Cantil-Sakauye has issued 470 emergency orders to help local presiding judges respond to changing directives from state and local health officials and their own varied limitations.

Confusion has been an unfortunate byproduct.

“The courts are often looking to the Judicial Council and Judicial Council is often deferring to local courts,” Richardson said. “We need the Legislature to step in and establish statewide safety guidelines for the courts.”

While the Legislature has been reluctant to interfere with a separate, co-equal branch of government, lawmakers agreed Tuesday that the courts will need to come up with a statewide plan to resolve Covid-19 related case backlogs and ensure safety in all courthouses.

“We struggle with setting statewide standards and imposing that locally, but how do we ensure that you can keep the culture of the 58 counties functioning and still be able to set standards so we don’t see differences in access to justice county to county,” Assembly committee chairman Mark Stone, a Scotts Valley Democrat said. “This hearing is for us to understand the challenges you are up against and how we can help.”

“It’s not our job to tell the judiciary how to run their branch of government,” observed Senator Tom Umberg, an Orange County Democrat who chairs the Senate Judiciary Committee. “But we are concerned about certain issues, certain disparities, certain limitations on access to justice, and it would be useful to have a plan, performance standards and metrics that establish the bare minimum of access to justices in California.”

Physical-distancing requirements and staff shortages pose additional hurdles for the courts, as does getting people to show up for jury selection. Nancy Eberhardt, the head clerk for San Bernardino County Superior Court, said her court has an 11% show rate. It used to be 30%.

“Judges are put in a difficult spot. We are asking people to come to court, but jurors are afraid to come,” Cantil-Sakauye said. “And who can blame jurors for being afraid?

Technology seems to be the key to getting courts safely back on track.

Presiding Judge Tara Desautels said it has worked well for Alameda County Superior Court, whose tiny courtrooms cannot accommodate 6 feet of required physical distancing.

“We pivoted at a shockingly rapid rate. By and large we have received overwhelmingly positive feedback from all who interact with our courts,” she said. “Users like remote appearances because they are more convenient. They don’t have to necessarily take time off work or find child care. There’s no need to travel through traffic and fight parking difficulties to make it into a courtroom.”

The court mandated remote proceedings for all civil cases in early April. Jury trials are also held by video, and Desautels said jurors have benefited from being able to simultaneously view evidence and witness testimony on the same screen.

Michele Brown, an attorney who practices family law in San Diego, said remote hearings have also helped self-represented litigants. “It’s expensive to go to court. Uou have to take an entire day off of work, and pay $30 for parking.”

Remote proceedings also reduced attorneys’ fees for low-income clients. “You’re not paying your lawyer to drive to and from court.”

Brown said the judiciary should consider adopting a hybrid of both in-person and remote proceedings.

But innovations are expensive. Desautels said courts will need money for additional staff, software licenses, and reliable bandwidth.

“We need additional video equipment which include modernized display capability,” she said. “We need evidence presentation systems that are user friendly so members of the public can use it, especially self-represented litigants.”

Desautels said she believes tech innovations will continue to improve court access even after the pandemic abates. “These changes were forced upon us, but we want to keep all the good that came with them,” she said.

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