How Florida's Courts Have Been Forever Changed By COVID

By Carolina Bolado
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Law360 (March 11, 2021, 6:52 PM EST) -- The technological revolution in Florida's legal industry brought on by the COVID-19 pandemic has improved efficiency and saved clients money, but the necessary shift to online interactions has made mentoring young attorneys a challenge, and delays in jury trials are expected to clog up courts in the coming years.

Attorneys said the silver lining of the pandemic has been the forced adoption of time-saving technological tools that the legal industry, which can be slow to innovate, had previously been reluctant to employ. The shift to remote proceedings opened up opportunities for attorneys around the state, who could now handle matters in cities several hours away with ease.

"It made the state of Florida smaller," Luis Salazar of Salazar Law in Miami said. "If you're a South Florida attorney or a northern Florida attorney, now it's not such a big deal to practice in one court or another. Before, you'd have to hire someone local to handle motion calendar."

But the lack of face time made interacting with colleagues more difficult, networking especially tough and jury trials nearly impossible. 

Here's what worked, what didn't, and what's to come in the next year.

Silver Linings

Attorneys and judges agree that the motion calendar — the morning cattle call in state court when dozens of attorneys would pile into a courtroom and wait for hours just to have 10 minutes before a judge — will never go back to its old format. Instead of going to the courthouse — or hiring coverage counsel for a matter in a different circuit — and spending hours on a simple matter, attorneys can now appear from their homes or offices, where they can continue getting work done as they wait.

Beyond the motion calendar, Judge Lisa Taylor Munyon, who sits in the Ninth Judicial Circuit Court in Orlando, said she expects remote hearings to become the norm for most simple motions and non-evidentiary hearings.

"The video platforms are probably here to stay," said Judge Munyon, who also chairs the Florida Supreme Court's COVID-19 workgroup. "They are just so efficient, and they save their lawyers time and their clients money."

In addition to saving their clients money, eliminating the need for travel saves a lot of "wear and tear" on attorneys, according to Stuart Singer, managing partner of Boies Schiller Flexner LLP's Fort Lauderdale office.

The shift to online oral arguments before appeals courts was seamless, according to Robin Bresky, an appellate attorney in Boca Raton. She added that at the trial court level, orders came out more quickly than usual.

"The judges were able to be a lot more efficient," she said. "It was a function of not having a crowded courtroom, and because jury trials were suspended for the better part of a year, the hearings the judges did have, they were able to hand out those orders more quickly."

And managing partners said that while they were at first concerned about how an all-remote work situation would pan out, they saw no dip in productivity from attorneys and staff who continued to handle their work from home, even despite distractions and other life commitments.

"One thing I've learned is that people have an amazing ability to adapt to adversity and to overcome it," said Bowman Brown, chairman of the Shutts & Bowen LLP executive committee in Miami. "It's been almost shocking to me the ability of our lawyers and other staff to rise to the occasion and to find a way to make it work."

For attorneys with commitments at home that might demand more flexible hours or some work-from-home time, the pandemic has helped normalize remote work and should make it more palatable to firms even once the pandemic is over.

The Challenges

While attorneys said they had no trouble adapting to remote work, remote mentoring or collaborating with colleagues was a different matter. Don Hayden, a co-founder at Mark Migdal & Hayden in Miami, said he has made the effort to make calls with mentees or set up video conferences, but "it's not the same as being in the office and interacting in that way."

Bresky, who helped organize the Florida Bar's annual convention last year, said that while the fully online format brought record attendance, the networking opportunities were limited. For young attorneys trying to build connections and a book of business, the lack of networking events could set them back.

And though many court hearings went remote without a hitch, virtual jury trials were an entirely different matter that never quite got off the ground despite a much-publicized statewide pilot program that tested various pandemic-safe trials, including a trial held entirely on Zoom and another in which jury selection was done remotely but the trial was held in person.

Judge Munyon said the pilot programs went well, and the Florida Supreme Court authorized the use of virtual formats for civil jury trials in every circuit. Just last month, the court issued a new administrative order allowing remote jury trials for criminal cases.

But few remote jury trials have actually been held, because most parties have been reluctant to agree to the format, she said. Judge Munyon said she does not expect there will be many takers for remote criminal jury trials.

"There may be the unique case where a defendant is in custody and believes that he's got a very strong case, and the state may agree to it just to get a trial sooner than they might otherwise," Judge Munyon said. "But I would be surprised."

The Future

While many courts around the state have managed to hold some jury trials during the pandemic, they have been resource-heavy affairs, requiring about three times the amount of space than a normal trial to allow for everyone to maintain social distancing.

The state court system is projecting that as of July 1, there will be 1.1 million more cases pending than normal. That includes cases that were delayed because of court shutdowns during the pandemic, as well as filings delayed by the pandemic and new lawsuits like foreclosures and contract disputes stemming from the pandemic's economic fallout.

Chief Justice Charles Canady has requested an additional $12.5 million from the state Legislature to fund the courts' Pandemic Response Plan, which includes employing senior judges and magistrates to help move cases along in much the same way they pitched in when courts were overwhelmed during the foreclosure crisis. The chief justice also requested another $3 million in COVID-19 response needs like personal protective equipment and remote technology.  

The courts system is operating on a three-year timetable and expects it will take approximately that long to get through the backlog of cases, according to Paul Flemming, spokesman for the state courts administrator.

"In this way, the foreclosure crisis of the last decade informs how we're approaching this," Flemming said. "It takes some time to address when you've got a lot of water behind the dam."

The courts will also have to deal with challenges to decisions made during the pandemic to forge ahead with remote hearings or masked proceedings over objections by a party. As Bresky explained, parties have a constitutional right to confront a witness, and under Florida's rules of civil procedure, if one party objects to a telephonic hearing because of this, the hearing must be held in person.

But she said judges went ahead with telephonic or Zoom hearings over these objections, which will create issues on appeal.

On Monday, in the first felony trial in Miami since the start of the pandemic, the public defender asked to ban masks in the courtroom on the grounds that the face coverings would prohibit or impede a defendant's constitutional right to confront a witness and judge the demeanor of jurors. The judge denied the request, but in the event of a conviction, the issue will no doubt be at the heart of an appeal.

"The rules have not caught up to that," Bresky said. "Technology is always ahead of the law and the rules of the court."

--Editing by Kelly Duncan.

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