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Law360 (March 20, 2020, 6:52 PM EDT) -- Reflecting on the hardships that many in the legal arena are facing amid the coronavirus outbreak, the chief justice of Massachusetts' high court called on the local bar to invent new ways to "keep the wheels of justice turning."
In an open letter Thursday, Chief Justice Ralph D. Gants of the Supreme Judicial Court asked the legal community — from criminal defense attorneys and prosecutors to solo practitioners and BigLaw partners — to approach getting through the public health crisis by asking "what if?"
Gants invited the Massachusetts bar to "work with our courts to figure out how we can find new ways to protect the most vulnerable, preserve individual rights, resolve disputes, and somehow keep the wheels of justice turning in the midst of this frightening pandemic."
"I look to your collective wisdom and creativity to devise such improvisations, and try them out," he added. "Sure, we will make mistakes, but if we have the agility and wisdom to learn from those mistakes, we will fail, and fail again, until we succeed."
The Supreme Judicial Court's "triage plan" for the spread of COVID-19 is to limit in-person proceedings to only emergencies that can't be handled over the phone or through a videoconference. The First Circuit and the state appeals court have both canceled arguments scheduled for April. Massachusetts federal court and the state trial courts have delayed all trials. Law schools have moved to online learning.
Gants said the current crisis has forced the Massachusetts courts to violate a commandment offered by famous Second Circuit Judge Learned Hand: "Thou shalt not ration justice."
"We ration justice for precisely the same reason that we ration food in hard times," Gants said, "to focus our limited judicial resources on avoiding serious and immediate harm and to make sure that we and our justice system survive to see a better time."
Surveying the harm caused by near-shuttered courts — pretrial defendants in custody, crime victims awaiting closure, children awaiting custody or adoption decisions — Gants said, "We know we must do what we can to limit their pain."
District attorneys in Suffolk and Middlesex counties are working on releasing some prisoners for public health reasons during the pandemic.
The Massachusetts Bar Association's Chief Legal Counsel Martin W. Healy said the cooperation seen between the courts and the bar after the 2013 marathon bombing offers a "blueprint" for the coronavirus pandemic. Then, the bar donated time and expertise to victims of the bombing, including programs offering free legal advice by phone.
"We stand ready to support the courts in their efforts to maintain access to justice, and have begun marshaling our resources," Healy said.
Gants said he's always seen the courts in Massachusetts as a kind of "duct tape" system that solves all types of issues as they emerge. He compared it to MASH units that provide mobile surgical services in combat areas.
"We find a way to fix a problem and get the job done," he said. "Now our courts are unleashing the creativity, adaptability and imagination of a MASH unit in times of war to figure out how to communicate to the public, answer questions, provide necessary guidance, and resolve matters by telephone, videoconference, and email that only a few weeks ago were resolved only in person in court."
--Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
