By Guest Author Annette Burns
Little did family law attorneys know earlier this year that their counsel tables would be reduced to a 14-inch screen on a dining room table and everything about the practice of law would be reexamined, and altered to keep everyone healthy in the face of a raging novel coronavirus (COVID-19) pandemic.
In fact, on February 14, 2020, I was part of a panel of mediators and settlement judges who spoke on the then-somewhat obscure concept of Online Dispute Resolution (ODR). I discussed my half dozen or so experiences of doing mediation by telephone or through email, and the afternoon session was a demonstration of a live mediation done on something called “Zoom.”
I vaguely was aware of Zoom and other platforms called “GoToMeeting” and “WebEx.” While I thought of ODR as a fascinating concept of the future (and I’m a devoted follower of Colin Rule, the pioneer in the field of ODR (https://www.mediate.com/articles/ ColinRuleNewCEO.cfm), the notion of regularly doing mediations on online video platforms seemed remote to me. While a largely online practice loomed as a possibility, I felt I would not be doing it very soon.
I was wrong. That February 14 seminar now seems quite prescient. Dozens of articles discuss the mechanics of taking a family law practice virtual in light of the pandemic. While it is relatively easy to say, “Our hearings will now be done virtually using GoToMeeting,” so many questions remain. Do these hearings provide the same protections for and assurances to litigants who are worried about their fam- ily court case? Are remote hearings a short-term change,
or will virtual hearings be the norm? Are remote hearings what clients always needed, to relieve them of the loss of extensive work time and the cost of expensive parking in an unfamiliar location? Do remote hearings allow self-represented parties more access to court and encourage a higher level of participation than in-person hearings? Will lawyers ever meet with clients in person again, to whisper in ears during hearings and hold hands during stressful events? How have the COVID-19 changes overhauled feelings about practicing law and connecting with clients and the
FAMILY LAW ATTORNEYS.
Unbeknownst to family law attorneys at the beginning of 2020, we would, in a very short time, be forced to:
- Address client concerns never previously dreamed of, while learn- ing (usually while actually engaged in a live hearing) how to con- duct online hearings while operating Zoom, GoToMeeting, Teams, and other platforms in a reasonably professional way;
- Elicit testimony while masked, from a masked witness;
- Conduct a hearing while maintaining social distance from one’s own client;
- Cross-examine a remote or masked witness who is possibly lying;
- Introduce (and object to) exhibits in a remote hearing;
- Prepare a less-than-computer-literate client to testify online; and
- Deal with hardware, WiFi and other technology problems during a live hearing.
Everything about the practice became novel. Procedures and routines for handling cases, acting as a mediator, communicating with clients, negotiating settlements, offering sympathy and feeling empathy and relationships (with other attorneys and judges) have been rethought, reexamined and, in most instances, changed. Arguably, many of these changes are for the better.
MEDIATION AND DISPUTE RESOLUTION.
Mediation has unquestionably thrived during the pandemic. Not only is dispute resolution a forum more suited to remote sessions, but the lessened availability of court remedies encourages wider use of mediation in family disputes. Zoom and other platforms anticipated the need for private breakout rooms to allow caucusing (which is also available for mediator-attorney private conferences). Remote viewing on a shared screen allows for a truly collaborative effort in preparing memorandums of agreement. Mediation organizations, many of which have promoted ODR for years, quickly rose to the occasion to provide support for mediators who were abruptly thrust into ODR without much training time. https://www.mediate.com/family/
Court systems continue to struggle with COVID-19 responses, specifically the competing interests of public access vs. public safety. Even in severely affected locations where court closure was all but mandated, courts obviously had to be available to victims of intimate partner violence to obtain protective orders and to hear orders to resolve temporary custody and child-related disputes. Disputes between parents about COVID-19 implications increased the court’s workload, as parents disagreed on whether exchanges are safe, whether a child should be traveling or even leaving a parent’s home at all, and whether a parent should be quarantined based on unsafe activities.
How court systems have handled the drastic changes in services varies widely throughout the country, and procedures change weekly depending on a location’s COVID-19 density. Wayne County Michigan (Detroit), as of the end of June, had met criteria necessary to proceed to later stages (Phase 3) toward full reopening. https://courts.michigan.gov/News-Events/Pages/COVID-19.aspx
In Maricopa County, Arizona (Phoenix), however, the family court had attempted reopening phases, but the May through July outbreaks creating an Arizona COVID-19 hotspot have eliminated progress towards anything that might be considered reopening. Family court hearings are proceeding remotely, with in-person appearances at court- houses strongly discouraged. In-person access to court facilities is limited to those actively involved in a hearing or for filing or deliveries. Online filings are widely used. As with most jurisdictions, COVID-19 positives among court personnel remain a serious concern.
In the 11th Judicial Circuit, Florida (Miami), limited use of court facilities for in-person hearings continues as of the end of July, but remote/virtual family court hearings are being conducted. https://www.jud11.flcourts.org/coronavirus/ArtMID/2392/ArticleID/3479/Virtual-Court-Resources-by-Division-Case-Type Even domestic violence and related emergency orders are being heard via Zoom at least through July, 2020.
In Maryland, judiciary operations follow a phased plan issued by the Court of Appeals, and, assuming Maryland’s pandemic responses remain successful, Maryland courts employed Phase IV of that plan as of August 31. https://www.courts.state.md.us/coronavirusphasedre-opening
Generally, major court jurisdictions have implemented all or most of the following protocols for hearings or use of the courthouse: Distancing of at least six feet, use of masks where appropriate and where distancing cannot be maintained, barriers between workspaces and medical screening of all persons entering the courthouse, including questionnaires and taking temperatures. Hearings are conducted virtually to the maximum extent possible.
A drawback for practitioners and the general public has been the difficulty in keeping up with each court’s policy changes as the pandemic progresses or regresses. While court websites are helpful, the plethora of administrative orders and rule changes issued to deal with safety issues are hard to follow and change almost weekly.
Individual family law attorneys, law firms and committees have jumped into the breach, disseminating information and issuing guide- lines and recommendations to assist parents with court access and COVID-19 issues. In a particularly fast response, the Oregon Statewide Family Law Committee issued recommendations to assist parents on subjects like exchanges, travel, illness and even makeup parenting time in light of school cancellations and illness concerns. https://www.courts.oregon.gov/programs/family/sflac/SFLAC%20Documents/SFLACGuidelineForParentsDuringCOVID19Pandemic.pdf
Courts that were previously lagging in the implementation of online filings found themselves rushing to put those systems in place, while jurisdictions already using online filings were rewarded. As one example, Maricopa County, Arizona, in February 2020, started allowing online Orders of Protection for domestic violence cases, allowing petitioners to fill out all forms online prior to coming to the courthouse for a hearing. When COVID-19 shutdowns occurred, that court was able to quickly pivot to holding those hearings (on the already-prepared and filed Petitions) by telephone. https://azpoint.azcourts.gov/Home/fbclid/IwAR3AeVGD4ytcWCEkECipXkkld_vNvM7-tV5sDXr5WruIkWxlapzsspyVAJo
What does all this mean for the future of family court? Courts are investing millions of dollars in new hardware, software and online platforms, and it is unlikely those investments are planned only for short-term use. In 2013, a forward-thinking trial judge noted, “There will be a steady increase in video appearances by parties for motions hearings, including some evidentiary hearings, which will include remote witnesses, lawyers, and judges. Some judges or lawyers will come to this
process kicking and screaming but will nevertheless relent due to necessity . . . ”
https://www.americanbar.org/groups/judicial/publications/judges_journal/2013/summer/technology_and_the_ courts_a_futurist_view/ Most of the anticipated progress towards video appearances did not happen between 2013 and 2020, but mid- 2020 finds family courts in the throes of “kicking and screaming” which is likely to lead to overall
In his 2014 year-end report on the Federal Judiciary, U.S. Supreme Court Justice John G. Roberts discussed technology, saying: “[T]he courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.” https://www.
This era of coming late to technology has ended for family courts. There is no longer a choice but to proceed remotely, or not proceed at all.
Annette Burns is an attorney in private practice in Phoenix, Arizona, specializing in family law and a past president of
the Association of Family and Conciliation Courts.