Bar News Masthead

Post-Pandemic Practice Survey Results in the Circuit Court and Lessons Learned

 

By Hon. David D. King, Circuit Court

Administrative Judge

In April, I wrote an article about the Circuit Court’s response to the COVID-19 pandemic. At the end of that article, I asked you to help guide us as we consider post-pandemic practices. We then surveyed multiple stakeholder groups, soliciting their recommendations regarding the pandemic-related court adaptations and innovations. The survey focused on e-mailing documents for urgent matters, telephonic and video conferencing for remote hearings across all major case types, mediation in landlord/tenant cases and remote mediation for parenting disputes, and the overall effectiveness of court operations, from the Information Center to clerks’ offices to judges. The goal was not only to evaluate the court’s effectiveness in this unprecedented crisis, but also to plan for the road ahead. We asked you to suggest which, if any, of these responses to the COVID emergency should be adopted in the new “normal” operations plan. I am pleased to report that 282 attorneys responded. Thank you. Here is a summary of key survey results. In a future article, I will share with you the changes we are implementing, many of which are informed by these results.

Participants

The respondent pool included 1,163 participants: court staff, court managers, attorneys, judicial officers, non-attorney stakeholders, and litigants—although not as many self-represented litigants as had been hoped. All respondents were encouraged to only evaluate areas in which they have experience and to provide written comments to support their numerical responses. While a broad range of respondents participated, the results are qualitative and should not be considered statistically significant.

 

General Themes

Overall court response

Across the survey pool, several general themes emerged. Circuit Court judges and court staff are roundly praised for their work during this time. People from all respondent groups are exhausted; many recognize that the pandemic—at least the fallout from the crisis—is not over. Most internal respondents believe the court did well maintaining access and moving critical cases forward, but indicate more resources are needed (time, energy, judges, staff, technology support) to manage all cases moving forward. See Figure 1 for an overall view of the effectiveness rating.

Figure 1. Overall effectiveness rating of the Circuit Court during COVID-19.

Tools Used During the Pandemic

Remote hearings

Since March 2020, we have conducted more than 115,000 remote hearings. The court’s pivot to remote hearings was well-received overall, and respondents were grateful for the option. Despite some benefits of judicial discretion about the best medium for a hearing, some respondents were frustrated by the lack of consistency across courts on the types of hearing that were “in-person” versus “remote.” Using video technology proved challenging for some groups, including self-represented litigants, court staff, and judges.

While most respondents want to retain the option of remote hearings for some non-evidentiary, non-adjudicatory hearing types, they wanted to return to in-person hearings for some hearing types. The majority of respondents recommend that any hearings that involve establishing credibility, evidence, or multiple participants, should be in-person. Some respondents said they could be offered remote if they were conducted by video. Overall they recommended that the list of hearings that are, by default, in-person should be reviewed.

Stakeholders generally agreed that large-group sessions—including group arraignments, small claims pre-trial conferences, and First Appearance—should be discontinued. This is, in part, due to health concerns but also because parties experience substantial dissatisfaction being scheduled for a certain time, but then having to wait, sometimes hours, for their “turn.”

For criminal cases, substantive hearings, including arraignments, should occur in-person. Internal and external stakeholders recommended a staggered, smaller-group, or individual session approach to replace these large group events. For other mass civil or family sessions, consideration should be given to holding them telephonically. Telephonic First Appearance with a case manager is particularly well-rated.

“I think the Court system did a remarkable job in “accelerating” the push towards E-Filing and remote hearings, considering the sudden onset of the COVID-19 pandemic. After getting used to the format and process, I think the combination of E-Filing and remote (both telephonic and Webex) hearings has been efficient, cost-effective, and allowed GREATER access to justice for many low-income and unsophisticated litigants. I wholeheartedly think that this should continue to be the norm (unless parties request otherwise).

— Non-attorney stakeholder

COVID E-mail

The pandemic crisis restricted the ability to file documents at court counters. The Circuit Court responded by instituting both a physical dropbox and an e-mail box for each court location. While the COVID e-mail box, which was intended for emergency filings, had its value, the volume of e-mail submitted was overwhelming to most staff, most of the time, possibly because the rules for it were not clear to external stakeholders, nor consistently applied.

About half of respondents expressed interest in retaining the inbox for some types of filings, e.g., DV petitions, emergency child-related petitions, notification of readiness to plea. For courts to provide this service, respondents want clear, public guidelines for its use. Also, more staff are needed to manage the flow, printing, etc.

 

Alternative Dispute Resolution

Overall response to alternative dispute resolution being offered over phone and video conference was extremely positive. Sixty-seven percent of respondents wanted to keep this option moving forward.

 

Tools for Post-Pandemic Practice

Respondents were asked to consider what tools or resources would be helpful to maintain or implement as the Circuit Court shifts to post-pandemic practice. Respondents rated each option from 1 (no, we absolutely should not do this) to 5 (yes, we absolutely should do this).

 

Criminal

As mentioned above, many respondents (weighted average: 2.37) indicated the court should not return to in-person multi-case arraignments, but suggested arraignments should still be in-person. Status and other non-evidentiary and non-trial hearings were seen as viable hearings to “keep” remote (weighted average: 3.78), with telephonic being the preferred medium.

 

Civil

For civil cases, all stakeholder groups agreed that remote mediation should remain an option (weighted average: 4.11). There was mixed interest in remote hearings. While most stakeholder groups indicated they prefer some hearings to be telephonic (weighted average: 3.86), respondent groups differed on preference for video, with attorneys strongly requesting video hearings (4.18) and other groups expressing no preference for video.

 

Landlord/Tenant

In landlord/tenant cases, all groups favored keeping the pilot program that “offer[s] mediation before hearing on the merits” (weighted average: 4.09). No stakeholder group expressed strong preference for keeping telephonic or video hearings.

 

Divorce/Parenting

In divorce/parenting cases, most of the options instituted during the pandemic were ranked very positively. Remote and after-hours mediation was particularly well-received (weighted averages:4.67, 4.41 respectively). Only “Return to in-person, multi-case First Appearance sessions with a judge” ranked as “Don’t Keep” by all groups (weighted average:1.94). Video hearings were less preferred than telephonic hearings, but were still slightly preferred to keep as a discretionary medium.

 

Guardianship, Child Protection, and Juvenile

In guardianship, child protection, and juvenile cases, respondents were in favor of keeping “e-mail for truly urgent filings” (weighted average: 4.68) and “offer remote mediation” (weighted average: 4.19). Though most respondent groups were unsure about keeping remote hearings, judges had the strongest preference for both (3.68 video, 4.03 telephonic).

 

DV/Stalking

In domestic violence and stalking cases, many respondents want to keep “allow use of e-mail for truly urgent filings” (weighted average: 4.71) and “allow e-mailing of petitions” (weighted average: 4.47). Neither video nor telephonic hearings were favored by respondents based on averages, though some narrative responses indicated parties are less anxious and more able to secure counsel if remote hearings are permitted.

 

Probate

As with other case types, respondents were positive regarding most of the changes and thought they should be kept including “ e-mail for truly urgent filings” (weighted average: 3.93), “offer remote mediation” (weighted average: 4.56) and “holding telephonic hearings” (weighted average: 4.13). Video hearings received mixed support.

 

Conclusion

The COVID-19 pandemic ushered in a period of unprecedented change and uncertainty within the Circuit Court, yet many of the respondents were complimentary on how the courts adapted. With little forewarning and with great effort on the part of our judges, court staff, and court security officers, courts were kept open and access to justice continued, even under rapidly shifting circumstances and technological hiccups. This survey offers insight into how the adaptations were received and recommendations by various stakeholders on how to leverage the lessons learned during this crisis to effect greater efficiencies and satisfaction in the years after the pandemic has passed. As we work to modify our playbook going forward, we will try and extract the silver linings learned from the pandemic to create efficiencies for court staff and stakeholders. We are grateful for all those who took part in this survey and look forward to working with you to improve access to justice throughout the Circuit Court.