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Attorneys are adapting to court system’s decisive action to contain COVID-19

South Carolina attorneys are well-versed in the pivoting and maneuvering that happens so fast and often in the courtroom, but an opponent that no one saw coming is testing their collective flexibility and mettle like never before.

The novel coronavirus prompted the South Carolina Judicial Branch to take unprecedented action, leading to orders from Supreme Court Chief Justice Donald Beatty that effectively shut down most court proceedings across the state. The situation began evolving in early March, when Beatty sent a memo to court stakeholders, telling them that the Judicial Branch has a pandemic preparation plan and the branch’s crisis management team was considering what actions to take.

Over a series of days, Beatty issued several orders for court operations. On March 16 he cancelled jury trials but allowed non-jury trials and other hearings to continue, but at the local judge’s discretion and with only attorneys, their clients, and witnesses allowed to appear. Now, those hearings, roll calls, and other “unnecessary gatherings” are prohibited. 

People charged with non-capital crimes are being released pending trial on their own recognizance, “unless an unreasonable danger to the community will result or the accused is an extreme flight risk.” Beatty halted bench warrants and evictions and ordered that all circuit court judges return to their home counties and allow only emergency hearings. He’s also issued an order cancelling oral arguments before the appellate courts.

“In the past, the South Carolina Judicial Branch has shown great resilience in responding to hurricanes, floods, and other major disasters, and this court is confident that the same will be true in this emergency,” Beatty wrote. “This emergency, however, differs from these prior emergencies in many aspects. The current emergency will significantly impact every community in South Carolina while the prior emergencies, although potentially horrific for the individuals and communities directly impacted, did not.”

The wheels of justice turn slowly

Many attorneys across the state are pragmatic about the court shutdown, saying that it’s necessary to stop the virus.
“The court shutdowns have not impacted us much,” said Justin Bamberg of Bamberg. “No defense lawyer is going to get a hearing on their motion to compel anytime soon, so each side should just be patient and work with each other best they can. Who wants to be the lawyer in front of the judge six months from now explaining why they filed a bunch of crazy motions during a virus outbreak anyway? I wouldn’t want to be that lawyer.”

But while courtrooms may be shut down, the work of lawyering endures. For one thing, lawyers are now having to reach out to clients to explain how this stoppage will affect their cases. Chris Mills of Columbia said that his firm has set up teleconference software and is communicating with clients who have access to the internet that way.

Depending on how long it goes on, the shutdown may not even be much of an inconvenience to some clients, or for firms that have planned ahead for fallow seasons. Chad McGowan of McGowan, Hood & Felder in Rock Hill said many of his clients are in some ways relieved that they can pay attention to their families and their finances, rather than worrying about going to court.
“Court will be there when this is over, and frankly, given the pace of normal litigation, many do not even know or notice that court dates have been postponed,” McGowan said. “This sort of delay, for us at least, is tolerable because we bake bad times like this into our business. The practical effect of this will be to essentially shift everything down the timeline one to two months. We figure we have to eat next year also so money then is okay with us.”

But if the delay proves to be significant, it will have a substantial impact on every law firm that needs access to the courthouse and juries to resolve disputes, said Douglas Jennings of Yarborough Applegate in Charleston. Jennings said that he thinks that the court administration is adapting and hopes it will schedule hearings over the phone and come up with other ways to deal with the backlog that could easily build up if new cases continue piling into the court system while existing cases are stuck in neutral.

“I think it’s a little early to tell right now, but with every week that passes with no activity, it definitely gets more and more serious,” Jennings said.

Prepare, and prepare some more

Silver linings in all of this are understandably hard to come by, but the closure of the courts does at least give attorneys more time to prepare for upcoming trials, said Kenneth Berger of Columbia. It also allows for a greater sense of empathy for clients whose injuries had put them in a state of financial and physical uncertainty long before the current crisis. The downside is that it further delays justice for clients who cannot receive a fair outcome short of a jury trial.

Another source of concern for attorneys, especially those who represent business clients, is how the economic fallout will impact their clients. Lach Zemp of Roberts & Stevens in Asheville, North Carolina, where courts are also closed, said that the future is very murky right now, and perceptions a week from now may differ from today’s as much as today’s perceptions differ from those of a week ago. He also said that there will likely be a lag period where the consequences of COVID-19 are clear.

 

“It may be a month or two until we really feel a significant economic impact from this,” Zemp said. “Right now it’s hard to know and say how it’s impacting our clients from an economic standpoint”

Mills said that his small firm is in stable financial shape, and he anticipates making payroll and paying bills on time. Sick time for employees is covered, he said.

“Firm overhead will decrease, and I may defer tax liability until the economic outlook is more certain,” Mills said.

South Carolina is ahead of the curve in some respects, said Chris Adams of Adams & Bischoff in Charleston. Its courts system and its documents are accessible online, and Beatty issued an order on March 19 that allows teleconference for mediations. 

“[But] right now, we are like most places, trying to deal with things as they change day-by-day,” Adams said. 

Follow Bill Cresenzo on Twitter @bcresenzosclw

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