According to a recently released report by the Center for Infectious Disease Research and Policy (CIDRAP) the duration for the current COVID-19 pandemic, “will likely be 18 to 24 months, as herd immunity gradually develops in the human population.”
This viewpoint brings into question a critical timeframe for which society, businesses and individuals will need to act immediately in the post crisis, pre-vaccination period. The unknown is the transition period, which could be months, a year or longer. The report further highlights three potential scenarios during this period, which are based on the analysis and parallels of previous pandemics, which all point to a long duration.
How does this then impact the legal industry and court reporting as a whole? Will there be a return to normal, as some predict, or will there be a very different new normal? Perhaps the reality emerging lies somewhere in between – modifications to the previous normal.
Recently, the Administrative Offices of the US Courts, issued initial guidance outlining a four phased approach to re-opening. Courts must pass through each phase before proceeding to the next. With the fourth and final phase being a complete resumption of operations. However, the guidance states that full functionality will occur, “…after public health officials announce the virus is suppressed within the United States.” Given the CIDRAP research, with a potential for 18 to 24 months of waves or a “slow burn,” the potential for resumption of full court functionality may be much further off.
In the considerations for re-opening the courts, resuming with trials and even depositions, there are many complexities post-crisis to contend with. How will litigants, attorneys and court personnel respond to reopening? How does the legal system need to prepare for a potential larger at-risk population that may not be able to resume normal participation – think juries, depositions and more?
There’s also a behavioral conditioning effect to consider. Essentially, what is the public’s willingness to return to legal participation, particularly after adapting to new norms, such as social distancing? What happens if witnesses are not willing to be in the same room with others, or if a court reporter or attorney do not want to be in the presence of others either?
A recently published article on Law.com, sites a situation where the new reality is keenly evident. “What may have been the first in-person jury selection to take place since the coronavirus shuttered courthouses across the nation began Tuesday in Ashland County, Ohio, but ended abruptly after the defendant experienced difficulty breathing and had to be helped out of the courtroom,” according to Law.com. The defendant was later tested for COVID-19, and the test came back negative.
Currently, courts, attorneys and court reporting agencies have been forced to develop short term approaches to mitigate the Spring 2020 wave of the pandemic. These efforts, which are led by courts, include the waiving of certain procedural rules, such as waiving the in-person requirements for notarization in Florida, as well as allowing remote appearances for preliminary hearing in California.
Regarding depositions, while the initial interest in using Zoom to move forward is gaining momentum, the adoption rate is building slowly for two primary reasons. First, cases are frozen. Second, there is a discomfort due to a number of procedural reasons. Other attorneys though are rapidly trying to adjust with remote depositions.
“Some believe that remote depositions are most appropriate when the deposition is anticipated to be short and few exhibits will be involved…even lengthy depositions with dozens of exhibits can be readily conducted remotely.” (Source: Edward T. Kang, “Time to Consider Remote Deposition” via Law.com, March 19th 2020.)
Facing a potentially long interim period between the current outbreak and the hope for effective vaccinations, the legal system is challenged with an enormous problem, but also presented with an opportunity.
“Law has responded to past crises with characteristic caution, resistance to material change, and an expectation of return to normalcy,” as stated in a Forbes opinion article published this April. However, the COVID-19 pandemic just may be the turning point in the way this profession adapts and transforms to a different normal.
What the next “18 to 24 months” and beyond look like for legal industry and its reporting agencies is unknown, but evolving. It is clear though that those who can adapt, embrace change and rethink their models are better prepared to thrive for the duration of the pandemic.