The Human Presence

In our case over access to e-filings in Maine, I was allowed in as an observer at our first status conference with the federal judge handling the matter. The lawyer on our side sings and plays harmonica in a blues band so he had a fancy mike, standing at home to address the judge. The deputy state attorney general was sitting in bad lighting at what appeared to be a desk in an unadorned office.

The star of the show, the judge, sat at her desk in a vast, dark paneled, and beautifully appointed set of chambers.

The Bangor Daily News was attempting to join us in the case as a plaintiff, and the judge said she had hoped to resolve that minor issue with a concession from the defendant administrators. But the government lawyer said he was going to object based on futility. He was confident the suit over First Amendment access had no merit.

The next day he changed his mind and sent a letter conceding the addition of the Bangor Daily News as a plaintiff in the case.

I am used to the formality of a federal courtroom, the magisterial décor, the high bench, wooden tables, dark-wood jury box and simply the physical distance between everybody.

So it was odd but at the same time really interesting to see everybody up close on a camera, backed by the art and books that tell part of a person’s story, like the framed prints  of ballerinas in our Boston lawyer’s study, the total blank anonymity of the Maine prosecutor’s office, and the elegant working environment of the judge.

A couple weeks later, I listened in on the Fourth Circuit arguments in our case against two Virginia clerks who were withholding access to new cases until after all the clerical tasks associated with preparing a docket, there called “indexing.”

Unlike Ninth Circuit hearings, these were limited to voice transmission with no images for reporters and the public.

So it was a very limited set of a impressions that could be drawn from the hearing except for the voice of Judge Robert King that boomed forcefully through the speakers on my desk at work.

“Judge Morgan had a bench trial and he made findings of fact and conclusions of law. His findings of fact are the facts unless they are clearly erroneous,” said King. “We had a trial. That doesn’t happen very often in these cases. You all litigated this thing and he wrote it all down and wrote a 50-page opinion.”

The trial court opinion from Judge Henry Coke Morgan Jr. came down in favor of Courthouse News saying the right of access is contemporaneous where practicable.

Here at the Courthouse News office in Pasadena, we have made related adaptations over the last year. I have come to work basically every day, while practicing the usual precautions, and was vaccinated earlier this year.

But at times I have been the only one here among nine offices gathered on one floor, and it seemed like being in an abandoned house, with just the fading remnant of a living presence. Now, hallelujah, California, the biggest state in the nation, is coming back to life.

So I have been waiting for this day when we could go back to the way we were, a vibrant and relaxed office where everybody did their jobs while being able to talk and tell stories amongst each other. I was concerned that it was unlikely, but I have been assured here at work that it will.

And after all that everyone all across America has been through over the last 12 months, there is still, to my amazement, a fair amount of resistance to taking the vaccine. But we like many companies are working on a policy that will give people a good amount of time, but then require vaccination, after the shot becomes generally available.

The verdict is still out, however, on what will change and will stay the same after the year of the plague.

The same for the courts. In talking with our lawyers, everyone recognizes the convenience of taking care of minor matters, like the status conference, through a video call. Now that video technology has been forced by the virus onto the courts, and all the players have become accustomed to conducting hearings that way, will the proceedings return to the physical courthouse.

It is so hard to predict because most judges like the traditional ways of conducting litigation, but at the same time they can get more done especially on minor matters through video conferences. What seems most likely is a mix, with some proceedings going back to the physical courthouse while others move to the virtual courthouse.

But, I tell you, it’s nice to have most the crew back with the talk, laughter and rhythm of work all around. The human presence is hard to get along without.

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