Just over a year ago, if you would have asked an experienced judge or lawyer to imagine the litigation and jury trial backlog if a global pandemic were to sweep through the nation, they first would have probably told you that your morbid scenario wasn’t funny and that the courts would never be able to dig out.
This is precisely where we find ourselves today. Throughout state and federal courts, for both civil and criminal cases, we are in an infinitely worse position than we were when the pandemic began. The threshold issue today is how we dig ourselves out before the system implodes.
In New Jersey, the court system has a massive backlog that isn’t going to be cleared anytime soon. Michael J. Epstein, founder of New Jersey-based The Epstein Law Firm, P.A., has seen the dramatic effect the pandemic has had on the New Jersey court system.
“Earlier this year, the backlog in New Jersey courts was twice what it was before the pandemic. There is a better chance that the backlog will double once again before it improves, yet there is really no easy answer to get our courts out of the current situation. It's not just civil cases - there is also a backlog in New Jersey for criminal cases as well."
Part of the problem is that jurisdictions such as New Jersey that have already relaxed restrictions on court appearances are now dealing with an aggressive third wave of the virus, with a fourth wave has begun to take hold in some parts of the world. When its effects are felt in the court system, it could again grind things to a complete halt and make the backlog exponential.
There are ways technology can play an expanded role this time around, compared to the slow start we had in 2020. But, especially in criminal matters, technology is limited by what it can’t replicate - the guarantees afforded people to appear in person at a trial. Many jurisdictions (including parts of Texas and California) are neither technologically equipped to handle remote jury trials nor can make them happen without the consent of defendants.
While courts and judicial systems have improved over the past year at planning, training their staff, and even investing in the right technologies to keep things moving when and where possible, no courts are equipped with functional crystal balls. Yet the power of accurate foresight is what is needed most to get things back on track in our national system of functional and fair trials.
Perhaps there is no better national example of how the gears powering the court systems have ground to a halt than in the City of New York. The New York Times reported in December that there have been only nine criminal trials in nine months. If that seems like a very small number, it is - the norm would be around 800 trials.
The direct cost of this is obviously much more severe in criminal proceedings. As highlighted in the New York Times piece, there is a profound human cost to these delays:
“Is it fair for people to be languishing in pretrial detention and presumed innocent with no prospect of a trial in the future for them?” said New York’s chief administrative judge, Lawrence K. Marks. “A criminal justice system cannot be, in any sense of the word, fully functioning, if it is not conducting jury trials.”
The logistical nightmares aren’t going away soon and they are going to take the daily hard yards that attorney Epstein describes. “I know that New Jersey lawyers are able and willing to help in any way that we can and I would expect my colleagues in other states to feel exactly the same way. Our clients can’t afford further delays, as this deeply impacts justice.”
This is the case throughout the nation, as the same factors that have created the backlog persist. In both civil and criminal trials, the absence of critically important participants in the case because of lockdown and illness may get worse before it gets better.
It’s not like the courts aren’t trying.
In West Virginia, even the smallest counties have been trying to dig themselves out of the backlog since January. In Georgia, estimates are that it will take three years and $60 million dollars to work through the current backlog. And in Massachusetts, their Trial Court set up seven satellite locations to resume jury trials and work through the state’s backlog, one of which is a Grand Ballroom, replete with pianos and often used for stately weddings.
But chandeliers aside, the far less grand yet far more likely scenario is what we saw this week in Bexar County, Texas, where there are 50,000 felony and misdemeanor cases awaiting trial, which officials admit could take years to work through. With trials resuming on June 1st, with one felony trial and one misdemeanor and one civil jury being chosen each day, Bexar County officials are doing exactly what court systems throughout the nation should be doing:
They are asking for patience.
About Aron Solomon
Aron Solomon is the Head of Digital Strategy for Esquire Digital and an adjunct professor of business management at the Desautels Faculty of Management at McGill University. Since earning his law degree, Solomon has spent the last two decades advising law firms and attorneys. He founded LegalX, the world’s first legal technology accelerator and was elected to Fastcase 50, recognizing the world’s leading legal innovators. His work has been featured in TechCrunch, Fortune, The Hill, The ABA Law Journal, Law.com, The Boston Globe and many other popular publications.