By Nicole Westbrook for NITA.
Hefty trial loads — and potentially, the weighting of cases — may be on the court case docket in Colorado, 2021.
The justice system is weighted down by a backlog that grows larger by the day. Even while the courts struggled to ease their doors open this fall, the recent upswing of COVID-19 cases and the Governor’s response have trickled down to both the state and federal courts. The District of Colorado has announced the suspension of all criminal and civil jury trials and all in-person bench trials through January 8, 2021. Grand jury proceedings were also suspended. Chief Judge Martinez of the 2nd Circuit (for Denver City and County) likewise announced that all jury trials would be suspended at least until January 4, 2021.
State courts have been open on a limited basis, judge by judge and circuit by circuit. Both the buildings and courtrooms are unusually quiet–not a lot of people are there. Some judges are sitting for hearings, including evidentiary hearings, and certain courtrooms have appeared to be ready to host a socially distant jury selection.
Throughout the pandemic, the courts have been introducing creative solutions to keep court proceedings moving forward. Courts are now outfitted with COVID-related precautions such as glass in front of counsel tables and sandwich baggies on microphones. After an attorney speaks into the microphone, the clerk throws away the “used” sandwich bag and replaces it with a new one for the next speaker or hearing.
The federal court buildings are still closed here in Colorado, but court is in session, running virtually on a Webex platform, including evidentiary hearings. Webex has been upgraded to show documents and it is working well.
Similarly, most mediation and arbitration are taking place via zoom, as are depositions, made possible because court reporters are showing up for work. Some lawyers are inviting clients into their conference space to manage frayed nerves and, at a minimum, be in the same room as the witness. Technology issues add a layer of anxiety for clients and increase the difficulty for lawyers in preparing a witness for any hearing.
Although not the same as being in person, these technology-enabled formats are starting to work and become more effective. Not only lawyers but also judges are learning to work with the technology, and are becoming so familiar with the problem, participants are better equipped to work through in real time solutions that work vis a vis each of these platforms.
Moving Forward
We have to. We have to keep moving court proceedings forward. It is almost laughable how many trials have been reset to the first quarter 2021. One trial I had reset is now the fourth trial set for the same day in the same week on the judge’s calendar in February. Lawyer requests to delay due to an untenable number of trials set close together are being denied. Will all these trials go to court? Will any of them go? That remains to be seen but the justice system has an obligation to move forward despite these challenges.
My civil case load is backlogged. Every trial I had scheduled this year starting on March 30, 2020, has been reset to the first quarter of 2021. Between January 15 and March 30, 2021, I currently have five trials scheduled, which is a caseload that is really not possible to carry. At this point, I don’t know if any of them will go as currently scheduled because no one knows what will happen with the pandemic.
Jurors in Court
It’s hard to bring jurors into this scenario. Having jurors present is an important part of the justice system. Many jurors in Denver, however, are retired people who might not be comfortable being in a big room with hundreds of people for a Monday morning jury call. When you receive a jury summons, you have to be there by law. The real question in my mind is whether you can force people to come.
If jurors do come, the most important cases to try from the justice system’s perspective are the criminal cases because they have a speedy trial mandate that can’t be violated. Criminal cases go first. A lot of civil judges are being annexed away from the civil cases and being used to push through criminal cases, contributing to an even larger backlog of civil cases.
With each trial delay, litigants are taking a wait and see approach rather than discussing settling. As litigators, we know it isn’t until litigants are on the cusp of a trial that they truly feel the pressure necessary to settle. We need people to believe trials will go forward, that their feet are to the fire, per se, to move to settlement when that is the best outcome for our clients.
The uncertainty is going to make the first quarter 2021 very interesting, and perhaps the first half of 2021. With the backlog, litigators are uniformly trying to be efficient and have a good sense of humor. With cases piled up, it’s hard to see how the judges are going to get through their work load.
Weighting Cases
If we get a vaccine around the beginning of the year, my hope would be that the court system would return to near normal. But dealing with the backlog may not be as simple as scheduling out new court dates. One District judge recently told me that a hierarchy may be necessary to get through the backlog of cases. First up would be criminal cases because a speedy trial is constitutional. Then, other cases would be weighted for priority. The weighting would not be based on which case was filed first. Rather, the weighting would be based on factual scenarios or the claims made to process more sensitive cases first, followed by the money cases later. This means a personal injury case, especially one where someone was hurt or hospitalized or worse is likely to be given preference over commercial cases.
At the end of the day, it will be my sector–complex commercial litigation–that will be pushed further down the docket. A creative way to deal with this delay is to agree with the opposing side and move the case to arbitration. Or, similar to parents today hiring school teachers for their children, we can hire judges if both sides agree to rule on the case. Without sufficient pressure on both sides, though, one side may be willing to wait it out.
Protracted proceedings weigh on everyone across the judicial system. If cases drag on too long, the reasons preventing both parties from moving forward creatively or with a settlement could fall away. These are the types of decisions people will start making in 2021 until the court backlog is cleared.
Nicole Westbrook is an attorney with Jones & Keller in Denver. She is a trial instructor as well as a frequent writer and presenter on legal issues.
This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the matters addressed above.