Old-School Mass. Courts Ill-Equipped For Pandemic, Attys Say

By Chris Villani
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Law360 (March 25, 2020, 11:29 AM EDT) -- As Massachusetts state courts grapple with shutdowns and cancellations amid the COVID-19 pandemic, a lack of widespread online filing and limited use of video and phone conferencing could make an already-backlogged docket even worse.

But the delays could also come with a silver lining, giving lawyers and judges more time to work through pending matters and prepare for hearings once the courts reopen.

State courthouses are shuttered in Massachusetts until at least April 6, with exceptions made for only the most pressing emergency matters when they cannot be handled over the phone. The federal courts are similarly quiet, with jury trials postponed and First Circuit oral arguments canceled for the month of April.

But local attorneys said a big difference between the two forums is that the federal courts have a robust, and mandatory, online filing system. The state system lags behind on e-filing, which could exacerbate delays caused by the outbreak.

"The district courts and the probate court, where I practice regularly, are not as equipped as other courts in the state to handle [the pandemic] because we don't generally use an electronic filing system and things like telephone conferences and video conferences are things we are not regularly using," said Matt Barach of Barach Law Group LLC.

"When the courts reopen and things go back to some normalcy, we will see an unbelievable pressure and an unbelievable amount of work," Barach added. "It's like a pipe system that is going to burst."

Some state courts are already set up for online filing, including the Supreme Judicial Court and the Appeals Court, where it is mandatory. Those courts will also still be able to send out opinions, something attorneys said will keep those courts and the federal courts ahead of the curve compared to others.

But there is "a tremendous amount of uncertainty" regarding the state civil case docket, said Scott Ford, who manages the litigation practice at Mintz Levin Cohn Ferris Glovsky and Popeo PC.

"For our existing cases, we have emailed pleadings and petitions and oppositions to the clerk, but no one really knows if there is a clerk physically in the state courts' clerk's office," Ford said.

Embracing technology may also be difficult for attorneys who prefer to advocate before a judge in person, said Louis Ciavarra of Bowditch & Dewey LLP. He estimated that 90% of litigators feel they can present their clients' cases more effectively in a courtroom.

Case in point: During a telephone motion hearing last week. U.S. District Judge William G. Young remarked that he felt like he was constantly interrupting attorneys when he asked them questions, something he could do with a "raised eyebrow" had they all been in the same courtroom. 

The state Appeals Court held telephonic oral arguments last week and, while the justices thought the arguments went well and were "roughly equivalent" to normal arguments, according to clerk Joseph Stanton, there were a few technical snafus. 

"The biggest problem occurred when counsel could not hear the justices asking a question and kept speaking," Stanton said. "Also, one judge moved a microphone so he could be heard better but it was too close to the speaker phone and created feedback."

Lawyers ran into some issues on their end as well. Stanton said the justices noticed some lawyers having trouble cradling their phone under their ear while juggling their notes. 

"One attorney had trouble finding something because she moved her record appendices to her bed to get away from her dog," Stanton said. The Appeals Court decided to scrap April's oral arguments altogether and will instead decide cases on the briefs.

In state district courts, judges sit in either criminal or civil sessions and Ciavarra said civil judges may be temporarily pulled over to the criminal side to help deal with the backlog there once the courts are open again.

Despite the expected delays, some attorneys are trying to look on the bright side. In state courts frequently jammed up with trial practice, the break in the trial schedule may help move along dispositive motions, Ciavarra said.

"Motions to dismiss, summary judgment motions, it can be difficult for them to get through in state courts when they are constantly trying cases," Ciavarra said. "We may see some movement on some of our cases simply because the judges have more time to focus on pending matters they never would have gotten to before."

Erik Paul Belt of McCarter & English LLP said lawyers could ease a bad situation by using the time as productively as possible, including "writing deposition outlines and doing some of the grunt work needed before you go in to argue a motion."

"With depositions being put on hold, lawyers who were planning to sit in a conference room all day now have the time to sit and think about the arguments they are going to make and the merits of the case," Belt said. "That's the kind of thing that can help reduce the backload."

Nixon Peabody LLP litigator Scott O'Connell also pointed to the extra time judges may have to drill down on legal issues, calling it "an interesting silver lining" for the civil docket.

Despite the disruption and delay, attorneys said they were working to adapt quickly and continue to meet their clients' needs.

At Nixon Peabody, the firm has closed its 16 offices, but "our business is certainly open, we have been busier this week than ever," said Kathleen Ceglarski Burns, co-managing partner in Boston.

"Right now, our clients are really relying on us to be advisers and problem solvers, it's about figuring out these things day-by-day, hour-by-hour, minute-by-minute," she said. "In terms of how hearings will go, either in person or video conferences, we are in a little bit of 'wait and see.'"

Every attorney agreed that a flurry of disputes is likely to arise stemming from issues around the novel coronavirus, further complicating an already difficult situation. Exactly what kinds of issues may arise out of the pandemic are as uncertain as when and how the crisis itself will end. Not knowing the length of time the courts will be shuttered presents a new challenge, even for veteran attorneys.

McCarter & English's Belt recalled starting a month-long patent infringement trial the morning of Sept. 11, 2001.

"We went to the courthouse that morning and the judge said, 'We have orders from President Bush to keep the courts open and business as usual.' Everyone was in a daze, but we started our trial that day," Belt said. "It puts this in perspective. I think it's important for people to know just how unprecedented this is."

--Editing by Rebecca Flanagan and Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.

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