There is no dispute that Covid-19 has affected everything. Conducting the people’s legal business is no exception.
Court houses shut down hard in March. No hearings. No trials. No status conferences. In April, a few court houses and a few court rooms started to try to open back up, experimenting with Zoom and Web-x. A few court houses literally opened back up. One of them was Newton County who, sadly, just last week lost a Judge to Covid-19 while another tested positive.
The Supreme Court has issued four Executive Orders since the March shut down, each more specific than the last. The most recent one was issued on Friday. While it does not mandate video hearings, conferences and trials, it strongly encourages them. It only allows in-person court-room appearances when public safety guidelines can be met. As much as those guidelines shift, I’m not sure what the Supreme Court means and I’m pretty sure that court house staffers feel the same way.
Some individual county courts are handling the issue in their own ways. Cobb County Superior Court is requiring video hearings and trials unless the appointed judge can be convinced otherwise.
Gwinnett County Superior Court recently had a confirmed Covid case in the Clerk’s office and therefore has shut down that office, which is the heart of any court house.
Chatham County Superior Court’s air conditioning has gone out, causing the air to stagnate and potential Covid particles to dangle about for hours on end. The Chatham County Courthouse is shut down for the next two weeks.
Fulton County Superior Court keeps on trucking, holding virtual hearings, conferences and trials non-stop, though with very little effectiveness since the activity seems to be far more procedural and not at all substantive.
So what is a family law litigant to do?
The Supreme Court’s emphasis on video hearings replacing in-person appearances has only gotten stronger with each passing Executive Order. Bright and enterprising judges are pushing the envelope hard to experiment with and perfect what a video hearing looks like.
There are monumental challenges to video hearings when all you have ever done is in-person hearings. How do you judge the credibility of a witness when you don’t have them physically before you? Instead, the witness is a talking head via a camera of limited utility on a microphone that wasn’t exactly designed for the best audio quality in a room that is light challenged under the best of circumstances.
How do you use documents during the examination of witnesses when you are used to providing them to the witness as you reach that portion of their testimony? Impeaching witnesses will not have the punch it once did.
When hearings can take hours and trials can take days, how does anyone sit still in front of a monitor for hours and hours on end trying to focus the same attention that a live court room hearing generates? How can justice be done when the format is better suited for a sit-com? That’s about as long as most judges seem to grant, anyway.
The art of trial law is changing right now as drastically as it has ever changed. And with the convenience (in many ways) that most judges will perceive from the video opportunity, for some types of hearings, I predict that we will never go back to appearing live in court.
So what is a family law litigant to do?
It used to be that when you were picking your attorney, you looked at their library. Was it extensively stocked with multitudes of well-arranged books? A few decades ago, the savvy consumer stopped looking for books and started looking for monitors. Now, I suspect that the ultra-savvy consumer will want to see the room where it happens, where the hearings are broadcast from. And I do mean broadcast.
We are at the tip edge of a new age. Successful attorneys will have to add drastically new skills to their arsenal. We will need to become producers of video format with all that it entails.
So what is a family law litigant to do? Ask the right questions about how hearings are conducted. Ask to see the room where it happens. Ask about all kinds of details that the firm should have thought out is this new, technologial age. Ask the attorney how often they have participated in video hearings and trials.
Family law has finally entered the 21st Century. We family law firms had better be ready.
-Michael Manely