The Courts and COVID-19: Effects on Constituents

Part 2

The second of a two-part post covers courts’ varied responses to the coronavirus (COVID-19) pandemic, the implications for different constituents, and what to expect as shelter in place restrictions are lifted.

The COVID-19 pandemic has had profound effects on the United States legal environment, from both the professional and the client perspective.

From foreclosures, personal injury and immigration to child custody, bankruptcy and criminal procedures, a good proportion of the population still needs to resolve legal issues — despite the lockdown. In our new reality, how can these clients be supported? With 64,000 U.S. legal job losses announced in April, and ongoing pandemic-driven restrictions in the U.S. courts that have resulted in court closures, delays and cancelations of hearings, depositions and trials, what can the public expect from the legal community?  

Downsizing, pay cuts across the board, hiring freezes, and an intensified dependence on technology form part of the solution. With no fixed end to the global COVID-19 crisis, America’s law firms must morph rapidly to serve their existing clients in an unpromising economy. To stay afloat and compensate for the sudden shuttering of lucrative industry areas (think restaurants, entertainment and travel) legal firms have been spurred to rapid adaptation.

Traditionally cautious about new technology, law firms have become leaders in the use of innovative technological tools to serve their clients. Video-conferencing software has become a key enabler of client meetings and lawyer conferences. Any lawyers still working are doing so remotely during the crisis, and it’s working out surprisingly well. Correspondence, writing briefs, video and phone meetings, and even some carefully orchestrated in-person meetings are still occurring.  The pre-COVID days of packed conferences and face-to-face confrontations may be a long time coming back, but video- and tele-conferencing has come to the forefront, and there’s still plenty to be done behind the safety screen of technology.

Beyond the thousands of legal professionals who have been furloughed, laid off or had their compensation reduced, there are some areas of the legal profession where the Coronavirus wounds may have an equally lasting impact. Litigators and those working on a contingency basis are probably the most deeply affected. As the pandemic drags on and court access remains restricted, many litigants no longer feel pressured to settle their cases and are adopting a wait-and-see strategy.  Law firms specializing in business mergers and acquisitions have also experienced a sudden lull. Many of their clients can only wait for the pandemic to pass and the economic situation to become clearer before making any major business decisions.

On the plus side, some law firms are experiencing a surge in business. Insurance lawyers have been needed to define coverage exclusions with regard to risks. Employment attorneys are playing key roles in helping employers navigate the increasingly complex matters of employee safety and layoffs. With the dramatic expansion of remote working, attorneys skilled in the many aspects of cybersecurity are in hot demand. Interest in the three areas is expected to remain strong for the next 12 to 18 months.

Increased Demand for Legal Expertise

With the tsunami of unemployment sweeping the country as a result of the COVID-19 induced financial crisis, bankruptcy attorneys are also expected to field many more cases in the coming months. For renters, moratoriums on evictions and prohibitions on late rent fees have been widely enacted across the different states, but nevertheless there are exceptions, and requests for legal advice in these areas is expected to spike. The same is true of mortgage foreclosure suspensions: these are continuously being announced and extended, but exceptions apply and consumers will increasingly require legal counsel in order to protect their rights.

Immigration law is a tightrope that few can walk without legal help even in normal times. H1B workers who have been furloughed, laid off or put on reduced hours; people with about-to-expire visas; those unable to leave the country as required:  all will need ongoing assistance from expert attorneys as the COVIC-19 picture unravels.

From the mundane to the life-threatening, many aspects of the law will be changed for constituents. For example, those in the throes of personal injury cases should be prepared for significant delays in their court-based timelines. Home Owners’ Association boards may not meet, but since the ramifications of non-compliance with state law can be severe, boards will need to review their foundational documents and consult with legal counsel before conducting board meetings in the new COVID-19 era.

For criminal defendants, immediate constitutional rights are now at stake—most notably, their loss of liberty. All criminal defendants are considered innocent until proven guilty and have a constitutional right to a fair and speedy trial held before an impartial jury. They also have the right to a public trial, the right to confront witnesses and their accusers, and the right to counsel.

But during a public health emergency, courts must balance the constitutional rights of defendants with protecting the health of judges, court staff, attorneys, and jurors.

For critical cases, courts around the country are implementing different tactics, including the use of videoconferencing, allowing virtual meetings, waiving appearance requirements, extending deadlines and suspending trials that are not facing constitutional deadlines.

Some courts finished criminal cases that were in progress when governors started issuing shelter-in-place orders. Others suspended all criminal trials, even those in progress. But now court systems are rolling out remote access tools at an incredible pace. Even so, potentially innocent defendants might end up in jail longer and have a harder time preparing a defense with their counsel. On the other hand, the delays may actually work in the favor of defense, since inevitable backlogs could result in more openness to better plea deals for defendants.

For all constituents, one of the first challenges is safely communicating with a lawyer.  To prevent further spread of COVID-19, attorneys have sought to minimize in-person contact with existing and potential clients. They are finding ways to implement effective precautions while still providing legal assistance to those who need it. Whether from the office or from home, lawyers are now at the forefront of virtual communications technology.

Many believe that the law has been permanently transformed into a digital industry by the crisis. It is expected that law firms will experience exceptional caseloads post-pandemic. These new work methodologies will enable law firms to retain this crisis-born agility and adaptability in a post-COVID-19 world.

*Updates and key facts for consumers are available from any number of legal sites.  A sampling can be found at Nolo.com with information and resources for many different constituents, the American Bar Association on family law issues, and the Department of Labor on relief measures for employers and employees. Please also see Part I of this blog post, published in May, for information targeted at legal professionals.