By Steven Brower

Law360 (May 29, 2020, 4:58 PM EDT) --

Steven Brower

Response to the COVID-19 pandemic has already materially changed many aspects of litigation, both procedurally and substantively. Some of the changes were legislative, some changes were the result of court closures, and there will be more changes resulting from the negative financial impact on all governmental entities as well as presently unknown long-term changes in societal norms for social distancing.

The purpose of this article, focusing on certain[1] state and federal courts in California, is to provide some suggested guidance to in-house counsel and others responsible for the setting of litigation strategy just as many of the courts are "reopening."[2]

Current Status of California Court "Reopening"

The terms "closure" and "reopening" have many different meanings. There are three specific meanings that we will focus on for the purposes of this article.

The first type of closure relates to the clerk's office. Most importantly, for the purposes of our discussion here, this refers to whether filings were actually being processed.

While the California state courts have implemented a version of e‑filing in the past few years, it could be argued that those systems are more equivalent to fax filing, but with greater delay. That is, documents are not actually e-filed with the state courts — rather, they are uploaded by counsel to various third-party filing services which, in turn, submit electronic copies of the documents to the various clerk's offices for manual review and processing.

So, when the clerk's office personnel are not working, there isn't any functional e-filing. This is unlike the federal PACER system, which allows counsel to place many matters on the docket, even opening new cases, and which instantaneously e‑serves those filings. For courts that closed the filing function of the clerk's office there is a massive backlog, as discussed below.

The second type of closure relates to hearings. The state courts had, prior to the pandemic, already begun extensive use of CourtCall, a system allowing attorneys to appear by telephone (almost always without video). The federal courts, prior to the pandemic, generally did not allow telephonic appearances, although there were rare exceptions. Whether or not they had the technical capability to hold telephonic hearings, as a practical matter both the state and federal courts have suspended virtually all hearings, other than those deemed exigent, since mid-March.

The third type of closure relates to jury trials and other large gatherings in the courthouse. It was not unusual, prior to the pandemic, to have packed juror waiting rooms and full courtrooms for law and motion hearings, case status conferences, mandatory settlement conferences, etc. As long as social distancing measures remain in place the capacities of the existing facilities will be a limitation (usually a severe limitation) on the volume of those proceedings. I believe this is going to be a significant problem.

Jury rooms, for example, were not built for social distancing — they were built to put eight to 12 people together in a comfortable, but confined, space where they can share the viewing of exhibits. Giving them a separate courtroom (something that has been tried in at least one court), and spacing them around a large room (with accommodation for aural and visual enhancement), and depriving them of the ability to easily share exhibits, is going to require significant effort, facilities and equipment.

Federal Court Reopening — Filings

The U.S. District Court for the Central District of California (covering Los Angeles, Orange County and five adjacent counties), the U.S. District Court for the Southern District of California (covering San Diego and Imperial), the U.S. District Court for the Northern District of California (San Francisco and 14 other counties along the northern coast) and the U.S. District Court for the Eastern District (Sacramento and 33 other counties in the northeast — also no. 1 in the U.S. Court of Appeals for the Ninth Circuit in "weighted filings," meaning too few judges) never actually closed for filings.

The PACER online system continued to allow filing of documents in pending matters and allowed the filing of new cases. So, to my understanding, there is no "backlog" of filings for those courts.

Federal Court Reopening — Hearings and Trials

Central District

The courthouse facilities are deemed closed until June 1. Based on an informal study (i.e. — a review of the online calendars for the judicial officers) a nominal number of civil hearings (less than 20 per week) have been held by telephone and/or videoconference.

While the facilities are technically set to reopen on June 1, a May 29 update to the rules indicated that "Phase 2" (resumption of limited in-court hearings) will begin "no earlier" than June 22 and, for civil matters, "limited" means only "emergency" civil matters and only at the discretion of the assigned judge. That new update also indicates that the timing of Phase 3, the resumption of jury trials, will be determined. There is not yet any formal statement about when "routine" in-person civil hearings will resume.

Unlike the California state courts, where some judges are assigned to civil matters and others are assigned to criminal matters, U.S. district judges handle both criminal and civil matters. It is quite likely that even when hearings and trials can resume, the criminal matters, which have statutory and constitutional priority, and which have obviously been backlogged by the limitations on holding many types of hearings (especially for custody defendants), will necessarily be handled before most civil proceedings.

The Central District federal court, as compared to the Los Angeles County and Orange County state courts, has relatively new courthouses, with larger public spaces, larger courtrooms and more audio-visual equipment. As such, it is likely that the Central District will be better able to accommodate social distancing for hearings and trials.

Northern District

The Northern District has indicated that, at least through Sept. 30, all civil matters will be decided on the papers or, at the discretion of the judge, by telephone or videoconference. Effective June 1 only persons "authorized by a judge to participate in or observe a court proceeding" will be permitted to enter the courthouse. Nonjury proceedings will have a limit of 10 attendees, which includes the judge and the court staff. While there are likely to be changes, under previous practice it was not unusual for the judge and the court staff to account for at least five people in the courtroom. 

For trials, the rules indicate that a judge may offer a bench trial by videoconference, in lieu of postponement. A recent Law360 article quoted U.S. District Judge Beth Freeman as stating that there was a policy of only one jury trial at a time in the San Jose courthouse, and that with criminal trials taking priority, the trial she was tentatively scheduling in October would likely be the only civil jury trial, in that court, for the remainder of 2020.

Eastern District

As noted above, the Eastern District has one of the highest weighted caseloads in the country, and with the recent loss of two judges, it has declared a judicial emergency under the Speedy Trial Act. At present there is no scheduled date for reopening the courthouse facilities and there are no plans to call jurors (even for criminal matters). Civil matters are to be decided on the papers unless the judge thinks a telephonic or video conference is required.

Southern District

Beginning in mid-May, the Southern District authorized judges to conduct in-person proceedings, except jury trials, in civil cases. However, a review of the online calendars for that court, which display a few days back and a few days in the future, reveal that, with possibly one exception, there have been and will be no in-person civil hearings at the time of writing.

Some procedures were modified including social distancing, the mandatory wearing of face coverings in court, and the option to address the court from counsel tables rather than the use of the lectern. The Southern District has not yet stated when jury trials will resume.

On May 26, the court issued an order appointing a "Court Strategic Committee on Resumption of Regular Court Proceedings," which included both judicial officers and representatives of various interested parties, including counsel.

Los Angeles Superior Court Reopening

The clerk's office was closed on March 23 and is not currently scheduled to reopen until June 15. It should be recalled that the Los Angeles Superior Court is the largest unified trial court in the U.S., with about 5,400 employees and about 600 judicial officers.

The challenges to process the backlog, using Los Angeles Superior as an example for most California state courts, will be phenomenal.

First, there will be the sheer volume of almost three months of filings (although my firm has had some filings processed during the time of the closure).  

Second, there is no reason to assume that there will be additional staff or other tools, particularly since the governor has already indicated that the courts, along with other branches of the state government, will actually be getting a reduced budget due to a significant projected statewide COVID-19 budget deficit.

Third, the processing of the backlog will, I believe, be more difficult, not less difficult, due to the passage of time. There will be many filings that will have been superseded by the passage of time. For example, a stipulation to continue a hearing date, where the hearing date has already been continued through clerical action. This will require the clerk to do some amount of research, to determine (with some certainty) that the stipulation has become moot, and then to prepare a rejection.

Meanwhile, the clerk's office will be deluged with questions, complications, new filings to replace the moot filings and myriad other problems that will delay the "estimated" rate of clearing the backlog.

In terms of hearings, the court has indicated an intention to resume hearings on June 22. But the presiding judge has indicated that there will be a significant number of priority matters that need to be handled before civil matters, which would include criminal, family law, an unquantified flood of unlawful detainers, and others. Speaking to the Daily Journal on April 21, Presiding Judge Kevin Brazile stated "It is likely that the anticipated wave of high-priority non-civil matters will consume much of the court's resources for months after reopening."

Consistent with Judge Brazile's comments (which also confirmed lack of additional staff, limitations resulting from social distancing and other practicalities), we do not anticipate that civil law and motion will resume anything representing "normal" volume until at least October, even with the addition of more telephonic hearings.

And trials? The Los Angeles Superior Court buildings are generally older, with relatively narrow hallways and with in-court seating which, on days when juries were being selected, left little room for even counsel. The jury rooms were created to avoid social distancing, not to encourage it. I don't know every branch courthouse (there are over 40), but I don't expect to see jury trials, on a regular basis, at the Stanley Mosk central courthouse, until at least February 2021.  

Orange County Superior Court Reopening

The clerk's office was closed from March 17 through May 22, having just reopened on May 26. This coincided with the first day on which nonessential offices were allowed to open in Orange County, which means that many law firms were probably simultaneously resuming in-person operations.

Presiding Judge Kirk H. Nakamura, in a videoconference the previous week, indicated that there were approximately 4,500 documents waiting to be filed, and he anticipated that it would take more than a month to process those documents.

I believe that the situation is even more difficult than projected because, due to deficiencies in the state court e-filing system, I anticipate that the backlog, by the end of the first week of resumed operations, will show more than 4,500 filings waiting to be processed, not less. That is because once people realize that the clerk's office is "open" they will file many documents that were not filed during the prior 60 days.

And I predict that all of the problems listed above regarding filings for the LA Superior Court will also apply to the OC Superior Court.

For hearings, OC has been automatically continuing them under a plan that says that most will be continued 13 weeks into the future from their previous date, with the first hearings scheduled to resume on June 15. In order to try and accommodate the backlog of law and motion and other proceedings, the OC court has indicated that no case management conferences will be held in the remainder of 2020, with trial dates being automatically set for noncomplex matters at 19 to 21 months from the date the case was filed.

For matters where trial dates were previously set, they are being automatically continued 25 weeks into the future. OC is also implementing new procedures intended to unburden the civil calendar, such as informal discovery conferences and voluntary settlement conferences.

San Francisco Superior Court Reopening

San Francisco made a point of indicating that it was "remaining open," although it appears that, similar to several other courts, using a limited staff they were focused only on handling of exigent matters. Their current published plan is to resume normal operation, including filings, on June 1, with the civil filings office opening on June 8.

As of May 21 the court indicated that it only had 1,457 unprocessed filings. Unlike the other three state courts reviewed here, rather than simply declaring the time when the clerk's office was closed as being a court "holiday," the San Francisco order makes it a holiday only "if the emergency conditions caused by the COVID-19 pandemic substantially interfered with the public's ability to file papers." We do not know how (or if) parties will be required to prove their qualification for protection under that provision for late filings.

Regarding hearings, they will be relying on CourtCall or other videoconferencing systems with no in-person appearances permitted. All motions with a hearing date prior to June 1 have been vacated, and parties are encouraged to meet and confer to agree on a briefing schedule and proposed hearing date, which are then submitted to a specified e-mail address, after which they will be advised whether their hearing date is approved. All mandatory settlement conference dates have also been vacated and will be reset by the court.

For trials, the published schedule is quite optimistic, in my view. It provides that trial dates originally set between April 16 and June 1 are vacated, and a new trial date will be set 60 days from the vacated date. That would mean that a trial, previously set for April 16 will be reset for June 16. There is reason to doubt that there will be any civil jury trials, at least in the larger California counties, prior to October (or perhaps even no civil jury trials in 2020).

San Diego Superior Court Reopening

In juxtaposition to the position taken by the San Francisco court, that it was still "open," the San Diego Court expressly stated that it was "closed" from March 17 until May 22, resuming operations on May 26. No filings were being processed during the time the court was closed and, as of May 21, there were more than 8,000 civil filings to be processed. The court has indicated that if filings were submitted during the closure they will be deemed filed as of the date of reopening.

Regarding hearings, the courthouse is only open for "emergency" matters, with a specific order that even hearings on ex parte matters will be remote. For motion hearings that were vacated in individual calendar, or IC, courts it is not acceptable to simply refile the motion with a new hearing date nor can it be done by stipulation. Instead, the parties are required to meet and confer, followed by filing of a request for a status conference, at which status conference the judge will determine the new hearing date.

For matters that are not assigned to an IC department the court will assign a new hearing date, but the rules indicate that the first 60 to 90 days will be devoted exclusively to the hearing of violence restraining orders. The court has indicated that more than 87,000 hearings will need to be rescheduled.

Regarding trials, all trials (both those during the closure period and in the future) will be reset for 180 days later than the presently set date. That means that the earliest trial dates will be set for mid-September.

California "Emergency" Rules of Court

Every trial court in California, including those we are focusing on in this article, will also be subject to[3] the Judicial Council "Emergency Rules Related to COVID-19." The emergency rules were added to the Rules of Court as Appendix I and were effective immediately.

There are, as of the date of this article, 13 emergency rules. We will discuss just four of them here (with a more detailed discussion of the strategic implications in the final section of this article).

Emergency rule 3 provides that any court may decide to hold any proceeding in a civil matter remotely (with or without video). It is likely that some courts will set all hearings by telephone, removing the option to appear in person. It also means, in theory, that a court could order a trial to proceed with witnesses testifying and being cross-examined by telephone.

Emergency rule 9 will be with us for the next 10 years, because it provides (as modified on May 29) that the statutes of limitations and repose, for all civil causes of action, are tolled from April 6, 2020, until Oct. 1, 2020. This means that every civil statute of limitations or repose that was originally more than 180 days, that had not expired as of April 6, is tolled for 179 days. For those SOL that are 180 days or less, the tolling is only 120 days.

Emergency rule 11 provides that for the same period of time as rule 9 (April 6 until 90 days after the governor's emergency declaration is lifted), a person being deposed has the option not to be in the same location as the court reporter. However, the rule is a little bit confusing because it doesn't explain the implementation.

That is, the title of the rule includes "through remote electronic means" but nothing in the rule makes any reference to "remote" or "electronic" or to any other details about how the deposition is to be taken. Does this mean that the witness still needs to appear at the requested location, with just the court reporter working from another location? Or does it mean that the witness can choose to appear by telephone without telling anyone where they will be? If a witness chooses to appear by telephone, and not videoconference, how will they be shown exhibits?

Emergency rule 12 says that counsel can be served by electronic means, without requiring consent from counsel. Frankly, in my view, this should be a permanent change to the rules since electronic service is faster and potentially even more reliable than the alternatives.

Strategy

So, what tips and suggestions can be offered to those responsible for management of litigation?

First, if you have a case which actually needs to be filed, consider federal court. PACER (the federal court electronic filing system) allows counsel to "open" new cases. My firm filed a new case late in the day on May 22 and had the judge assignment and the issued summons and other papers the next business day.

It should be recalled that federal court has some specific impediments that tend to delay the progress of the matter during the first 90 days (no discovery before the Rule 26(f) conference), but the actual filing can be accomplished and even the delay on discovery can be dealt with by experienced counsel, particularly in exigent circumstances.

Second, patience (with planning). As a result of COVID-19, the entire world (literally) has seen a change in how societal obligations are handled. Judges are going to be expecting parties to put their disputes "in perspective." That does not mean that parties with meritorious matters and/or real exigencies should be reluctant to proceed. But it does mean that strategic decisions need to be made about public and private perception of litigation conduct.

Most of the court plans both explicitly and implicitly rely upon the assumption that litigation counsel will exercise maximum professional courtesy and, when that fails, still act in a reasonable manner. But there are problems with that assumption.

Just as was true prior to the pandemic, some counsel and some parties will seek to obtain an inappropriate advantage. And, just as was true prior to the pandemic, litigation is a competitive endeavor, with serious financial outcomes, not some sort of a pastime between "good sports." In addition, just as was true prior to the pandemic, judicial officers are going to be tired of listening to bickering and they are going to be under even more stress to move matters through the system while facing additional financial pressures on the courts.

Therefore, the winners will be those who patiently plot a strategy to present their case as being unique, well-organized and using judicial resources only when "necessary."

Third, figure out alternative strategies for discovery from potentially recalcitrant parties. There will be a premium on litigation counsel who are able to negotiate truly "joint" discovery in which the parties agree, in advance, to the scope of objections, the dates for mutual exchanges of substantive discovery and the means for resolution of any further disputes. We anticipate a significant increase in the use of private "discovery masters" who will be granted, by the parties, the power to actually make meaningful decisions in order to move cases toward resolution.

Fourth, we anticipate an increase in the use of custom arbitration. For many reasons, "standard" arbitration clauses are often a very bad idea. However, parties can always negotiate, after there is a dispute, a custom arbitration agreement (even in a matter where there was no arbitration agreement) that can include rules about discovery, rules of evidence, selection of the arbitrator, using a good arbitration administrator, an appellate process, the timing of hearings and trial, and a number of other details.

Fifth, technology (including even the best videoconferencing) is not an adequate substitute for in-person testimony and oral argument. All reasonable efforts should be expended to try and obtain in-person depositions and in-person oral argument on hearing. But, if you can persuade the opposing party to take depositions of your witnesses remotely, or persuade them to argue motions by telephone, while you are present in the room with the deponent or judicial officer and they are not, you potentially obtain a significant strategic advantage.

Sixth, good mediators (who are competent at both mediation and the additional challenges of social distancing) will be critical. While trial (or at least the threat of trial) will always have its place, most cases ultimately settle. With all of the complications discussed here, trial will be further in the distance, and therefore less of a threat. It will behoove good litigation managers to revisit their settlement protocols and to try and develop incentives for all stakeholders (plaintiffs, defendants and their counsel) to move toward a well-orchestrated mediation that results in resolution, not just a check-the-box step in the middle of the case.

Finally, there is something that has not changed. That is, there is no substitute for retaining outside litigation counsel with strategic vision, trial experience, good judgment and a good reputation with other counsel and judicial officers.

Update: This article has been updated to include new announcements from a few of the courts and a rule modification by the California Judicial Council.

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Steven Brower is an attorney at Brower Law Group.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] This article will focus on four of the largest of the 58 separate state court systems in California and on all four of the U.S. district courts, but only on the "civil" litigation functions of those courts (excluding criminal, bankruptcy, family law and many other important functions with their own rules). It should be noted that each of the courts has dozens of specific rules for specific circumstances, which should be consulted by any attorney actually appearing in those courts. This article is focused on just a subset of the rules and should not be relied upon as a comprehensive source.

[2] This article was first prepared on Friday morning (May 29) using information that was believed to be accurate as of that time. It has been revised as of Sunday morning (May 31) to include subsequent changes by five of the eight courts and a rule modification by the California Judicial Council. Dates are very important here because the underlying information is changing  frequently, which can significantly alter the validity of the conclusions and recommendations.

[3] For the purposes of this article we are assuming that these rules are legally binding, even where they directly contradict a statute.

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