Court Procedures: Changes in Response to Coronavirus

26 March 2020 Coronavirus Resource Center:Back to Business Blog
Authors: Robert Slovak Steven C. Lockhart Rachel Kingrey O'Neil Jonathan Michael Thomas Andrew A. Howell

As the Coronavirus pandemic further envelops the United States, many state and local governments enacted stay in place restrictions which limit routine personal and business activities.  Despite those orders, a myriad of courts, both state and federal, remain open subject to emergency orders impacting existing and future civil litigation.  

  • Court Access: To limit risk of exposure to and the spread of the Coronavirus, courts imposed restrictions to limit courthouse access.  

  • Trial Delays and Deadlines:  Many courts have placed limitations on or simply delayed previously scheduled jury and bench trials.  Trial delays notwithstanding, other deadlines largely remain in effect.  For example, in California, the Chief Justice issued a statewide order suspending all jury trials in California’s superior courts for 60 days and allowing courts to immediately adopt new rules to address the impact of the COVID-19 pandemic. 

  • Hearing Restrictions:  Numerous courts have cancelled non-essential hearings; however, what is “non-essential” varies from one court to another.  In lieu of cancellation, some courts have transitioned from in-person to remote hearings utilizing videoconference, telephonic or other means.  Because alternative hearing technologies also vary, acquisition of additional technology resources may be necessary.  For example, in Texas, the Office of Court Administration “is providing judges ability to stream and host court proceedings via Zoom and YouTube. Under the Open Courts Provision of the Texas Constitution, it requires that all courts maintain public access.”  

  • Evidentiary Requirements:  Some courts relaxed evidentiary requirements allowing courts to consider sworn out of court statements and remote testimony as evidence. Lawyers should carefully balance the value of these alternatives to the risks on appeal.

  • Other Remote Proceedings: If faced with impending discovery deadlines, there are a variety of litigation support services equipped to provide remote / videoconference depositions.  Similarly, some mediators provide remote mediation services.

  • Reliance on Emergency Orders: Some emergency orders purport to modify substantive legal rights or limitations including, for example, the tolling of the statute of limitations for bringing claims.  There remains substantial debate regarding whether such orders are enforceable and whether it is appropriate to rely on such emergency order provisions.  

Due to a lack of uniformity, it is imperative to carefully review and understand each court’s emergency procedures and to consider how to proceed if any of those procedures might exceed the court’s authority.  Suffice it to say that, due to the massive societal disruption caused by the Coronavirus, court procedures will continue to change and everything will take longer. 

For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

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