Will COVID Impact the American Civil Justice System?
While both systems have been deeply impacted by the COVID-19 pandemic, more Americans interact with the civil justice system than the criminal justice system each year. From myriad categories of damage lawsuits to challenging actions of government, from divorces to health care matters and much more, the civil courts impact most of our lives on a regular basis.
How has the pandemic impacted the civil justice system?
According to attorney Scott Galante, Partner in the Galante & Bivalacqua, LLC, civil law firm, COVID has produced many changes in processes and procedures. While the civil system has partially returned to the previous normal, some of the changes will be permanent. Some were actually under way before the shutdowns, but have been accelerated by the circumstances of the past two years.
“The pace of litigation, particularly at the federal level, is moving again,” Galante reported, “but there is still a lot of backlog. My entire 2021 docket was cancelled. And even the cases that are proceeding are moving more slowly.”
The biggest change – as is the case in so many fields – is that much of the court business is still being done virtually. Galante feels that this outcome is permanent, at least to some degree, and sees both positives and negatives in the situation.
“It’s more efficient in terms of being in my office working while I wait for a hearing or a session,” he noted, “instead of sitting in a courtroom for four hours while other proceedings are going on. It saves lawyers’ time and clients’ money.”
Quite a few aspects of a typical civil case can be accomplished virtually, including taking depositions, filing motions and holding status conferences. As much of this type of work is routine and technical, Galante anticipates continuing to do this in the virtual realm even after in-person restrictions are lifted.
However, there are downsides to this. “You’re a lot more in a vacuum in the practice of law right now,” observed Galante. “You’re not interacting with other attorneys, with judges, not learning by observation. You’re less able to learn and anticipate the tendencies of individual judges.”
The impacts are considerably greater when hearings and trials are conducted virtually. “There’s a lot going on in the human experience when you are seating a jury or trying a case. Where is someone looking, where are their eyes going around room? What is their body language?”
Not only is it impossible for attorneys to observe this in virtual sessions, Galante added that “fumbling and errors are a lot more glaring in the Zoomasphere.” In turn, this potentially creates new and different possibilities for technicalities that can damage cases.
For these and other reasons, Galante believes that “we will get back to almost all jury trials. We’re not there yet, but I think the jury system will always require us to have in-person, in-courtroom trials.”
He does have some concerns about the impact of the pandemic and its aftermath on juries. “I think it’s going to skew jury pools. People already know certain ways to get out of serving on juries, which leads to certain population segments being under-represented. Things like vaccine status, job status will add to this. And I think the average juror’s perspective will be different for a long time.”
COVID’s effects have been substantial in another component of the system: law school. Galante is Director of the Trial Advocacy Program at Tulane University Law School, so he has witnessed first-hand how law students – and recent graduates in their first jobs – have experienced the consequences of the various restrictions.
“It takes away from the learning experience not being able to observe a live courtroom,” he explained. “Young lawyers are not getting that in-person, practical observation and training.”
One positive direction Galante sees in this arena is that he expects the 2022 bar exams to return mostly to normal. 2020 law school graduates were granted licenses without taking the bar exam at all, and the exams were abbreviated this year.
Despite all this, Galante believes that whatever the new normal turns out to be, the wheels of civil justice will continue to turn fairly. “I don’t think, at the end of the road, it will have a fundamental impact on the administration of justice,” he stated. “I believe in our system.”