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

North 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 caused the North Carolina Judicial Branch to take unprecedented action, with an order from Supreme Court Chief Justice Cheri Beasley that effectively shut down most courthouse operations across the state for at least 30 days, coming swiftly and with full force on March 13. It halted small claims (which, notably, includes eviction actions) and most district and superior court proceedings while allowing some business, such as domestic violence and first appearance hearings, to continue. 

Beasley’s order has reverberated through every courthouse, law firm, and law agency, causing a quiet and contained chaos as they pondered their next moves and tried to keep order. 

“The recent national response has been historic, as many of our most meaningful and noteworthy events have been cancelled, including government meetings, sports tournaments, religious services, and entertainment and business events, and as our university campuses have closed,” Beasley wrote in a memo to Judicial Branch stakeholders two days after her initial order. “This pandemic is serious.”

It’s so grave that by March 16, just five of Wake County’s 17 courtrooms were open, said District Court Judge Ashleigh Parker Dunston.

“We need to take this seriously,” Dunston said. “We want to make sure we are protecting our citizens and staff and those who have essential court business for our system to work. Chief Justice Beasley is doing a fantastic job of communicating with us to make sure we are in the best position.”

Flatten the curve

District attorneys’ offices across the state are scrambling, too, said Peg Dorer, director of the North Carolina Conference of District Attorneys. Some offices are dividing their staff into teams and staggering their hours at the courthouse.

“A member of their staff might get sick and in theory infect others,” Dorer said. “This way, they will always have people who can come in without being a threat to anyone.”

Many offices are having logistical problems because legal assistants and victim service coordinators don’t have laptops to take home, Dorer said, and while the Administrative Office of the Courts intends to provide them with laptops over the coming years, that’s not going to happen any time soon. 

Many legal organizations that serve lower-income clients are sending their employees home to work. Legal Aid of North Carolina in Raleigh fields about 200,000 calls a year from low-income people needing legal services. George Hausen, its executive director, said that his office began testing its remote equipment two weeks ago and everything went well. Now, that test has become a reality.

“The chief justice has courageously closed down all evictions for the next 30 days, and that was a huge break for us. Our advocates would be required to be in courthouses in the tiny magistrate rooms,” Hausen said.

But domestic violence courts are still open, and Hausen said that they have been “packed with people wall-to-wall.” LANC is looking for alternatives so some hearings can be held remotely.

Whitney Fairbanks, interim executive director of the North Carolina Office of Indigent Services, said her office is putting technology in place so the administrative staff can work in staggered shifts. The office’s chief concern right now is paying attorneys who agree to represent indigent clients, as they do about two-thirds of the office’s work. She said that attorneys should go to the office’s websites for updates and encourage them to sign up for direct deposit, if they haven’t already.

Indigent defense attorneys are in a tough position in representing some clients who are incarcerated who may not be fully aware of the gravity of the situation, Fairbanks said.

“They have had personal visitation suspended, they have had face-to-face visits suspended in many places, and I’m sure they are worried about their health and their family’s health and their proceedings,” Fairbanks said. “And we have attorneys who fall into the high-risk category. People become attorneys because they want to help people, and attorneys are very likely confronted with some daunting choices right now. Being on the front line it can be very scary right now, and we want to provide them with all the support we can.”

Cases get frozen in time

Attorneys at many law firms, meanwhile, showed up to work Monday and faced a reality that had changed drastically over the weekend. The day that Beasley issued the order, Coleman Cowan of the Law Offices of James Scott Farrin in

Durham had been representing a plaintiff in a civil trial for more than a month. A jury had found the defendant liable, and Cowan was scheduled to return to court on March 23 for the damages portion of the trial. But on March 17, he received an order from the court that the trial was recessed until further notice.

“I think the gravity and implications of everything that is happening worldwide, across the country, and locally has settled in,” Cowan said. “I was a little bit inoculated because I was in trial for several weeks. I kept up with the news as best as I could, but I didn’t appreciate the gravity of the situation. I understand now, and hope we can continue to move forward as best as we can, but everyone’s personal health and well-being is more important than anything else.”

His colleague, Brett Davis, is in charge of the operations for the litigation side of the firm.

“We’ve been drinking from a fire hose, that’s for sure,” Davis said. “We have so many people at this firm who are working on keeping the operation of the firm continuous though this. You have a lot of information coming out, and work being done in a fluid moment that can change from hour to hour. This is an interesting combination of planning everything you can foresee at the moment and balancing this with the requirement that you have to wait and see what happens.”

Notwithstanding the disruptions, attorneys at many firms said they agreed with the decision to suspend court operations, citing the public health considerations involved.

The future in constant flux

Beasley’s order is for at least 30 days, but with the speed at which things are changing, it’s impossible to know how much longer the emergency measures may need to be extended or how the legal profession will be affected if they do need to be continued for a longer period.

Lach Zemp of Roberts & Stevens in Asheville said that he has been emphasizing this uncertainty when speaking to clients about how the suspension of court operations might affect their cases. Perceptions a week from now may differ from today’s as much as today’s perceptions differ from those of a week ago.

“I think it’s too early to know [what the effects are going to be], except to say that I don’t think that this is going to go away or be resolved soon, certainly not within the next two weeks. I feel like that chapter of the book hasn’t been written yet,” Zemp said. “I don’t know this for certain, but it certainly feels like for the legal profession there’s likely to be a lag period where the consequences for the legal profession may not be felt until some significant time has passed. It may be a month or two until we really feel a significant economic impact from this.”

For the time being, statutes of limitations for filing lawsuits have not been extended. (Beasley explains reasoning…) But the specter of an even longer disruption to court proceedings raised concerns from some attorneys than once things return to normal, relatively speaking, there could be a long backlog of cases that could strain the system, possibly for years.

“All of our firm’s lawsuits are in different stages, so attorneys are focusing on aspects of the litigation that don’t require court appearances, such as written discovery, depositions, and mediations,” said Chris Lam of Bradley Arant Boult Cummings in Charlotte. “Our lawyers and our clients have no choice but to be flexible and patient.”

Editor’s note: The coronavirus epidemic is a rapidly developing news story, to say the least. This story went to press on March 19. We will be updating our website regularly with new content to reflect the latest developments about how the virus is affecting the legal profession. We encourage you to check our website frequently for all the latest news.

Follow Bill Cresenzo on Twitter @bcresenzonclw