Lawyers vexed by court shutdown

Virginia lawyers are frustrated as a shutdown of nearly all non-emergency court activity continued for a third week in courts throughout the state.

Litigators – both civil and criminal – complained that matters that could readily be resolved with now-familiar teleconference technology were kept sitting on the shelf while judges waited for official authority to hold remote hearings.

Attorneys said some law practices might be squeezed to the breaking point with cases idled for months. Practitioners also feared a future logjam of cases, resulting in headaches for both courts and litigants.

A March 27 order from the Supreme Court of Virginia extended the official judicial emergency through April 26 and directed courts to continue all civil, traffic and criminal matters except for emergencies and a few specified categories.

While the court encouraged the use of electronic audio-visual communication for those matters permitted, the court left no clear window for the use of remote conferencing for routine hearings or other proceedings.

Most judges were reluctant to press the issue.

“The Chief Justice’s Emergency Declaration is clear suspending non-emergency or non-mission-critical matters until April 26,” said Richmond Circuit Court Chief Judge Joi Jeter Taylor on March 31.

A spokesperson for the Supreme Court did not respond to a March 30 request for guidance by press time on April 2.

Some hearings take place

The Supreme Court’s orders provided for district and circuit chief judges to implement additional local policies as needed and allowed by law. The order also allowed judges to exercise discretion “as necessary in determining whether the matter is urgent and must be heard without delay to protect important liberty and constitutional interests and the health and safety of the parties” and others affected.

With that authority, a few judges were hearing civil matters, such as wrongful death and infant settlements, by phone or video conference, according to a representative of the Virginia Trial Lawyers Association.

“It may be they are willing to do so in those specific cases because they are necessary to finalize the case, and once completed, the matter can be removed from the court’s docket and the case is concluded,” said Mark Dix of the VTLA.

Norfolk Circuit Court judges expressly approved of telephone hearings for non-evidentiary civil hearings, according to a March 19 order.

“It is our hope, particularly with the Governor’s most recent [March 30] order and the length of time that this emergency may last, that the trial courts will be willing to consider hearing more matters by phone or video-conference,” Dix said.

Gov. Ralph Northam’s March 30 order directed all Virginians to stay home except in extremely limited circumstances through June 10.

Dix said trial lawyers were concerned that, once the restrictions are lifted, there will be a “flood of activity that will overwhelm our already overworked trial courts.”

Defense lawyers shared the concern about litigation inactivity, said Melissa Hogue Katz, president of the Virginia Association of Defense Attorneys.

“We have heard from many of our VADA members who are in favor of Virginia circuit court judges using their discretion to adjudicate non-emergency matters by telephone or video conference, with the consent of both parties,” Katz said.

Like Dix, Katz expressed concern about a “probable backlog” of civil cases if the shutdown continues.

“VADA is in favor of cooperatively working with our opposing counsel in efforts to keep our cases moving along for the benefit of all parties,” she said.

Widespread concern

Lawyers are worried, said Scott Surovell, a civil litigator and a state senator from Fairfax County. He said he has had 25 hearings delayed, including a three-day trial. He said he recently scheduled a video hearing for a non-evidentiary motion, but the chief judge would not approve it.

Fairfax County Circuit Court on March 27 established a system for submitting motions to be decided without oral argument if both sides agree.

Richmond lawyer S. Keith Barker said the hiatus could be a significant blow for solos, small firms and newer lawyers paying student loans.

“There are people who don’t have that big of a cushion,” he said.

Roanoke’s Matthew Broughton said delaying all routine cases for weeks will clog the system.

“If the parties agree and court is available, why can’t we go forward with telephone conferences and video conferences?” he said. “It doesn’t hurt the administration of justice. It’s good for the parties. It’s good for the court system,” he added.

Mike Mullin is both a state delegate and an assistant commonwealth’s attorney in Hampton.

“Here in Hampton Roads, courts have been very good about prioritizing criminal matters. I would hope all judges would take defendants’ speedy trial rights into consideration in setting hearings,” Mullin said.

“I’m particularly concerned about non-violent criminal offenders who continue to be held while their cases are being continued,” he continued.

Most courts idled

Court orders and announcements from Virginia’s busiest courts made it clear that routine hearings were on hold in almost every courthouse.

Norfolk Circuit Court appeared to be an exception.

“During the judicial emergency, the Court will hear by telephone conference any civil motion, special plea, demurrer or other matter not requiring evidence,” read a March 19 order signed by Chief Judge Mary Jane Hall.

Other courts were not so accommodating.

In Fairfax County, a March 16 order said the circuit court would hear only criminal arraignments, criminal bond motions and criminal and civil emergency motions for the following 30 days. Effective March 27, the court announced a temporary procedure to allow parties to request waiver of oral argument for motions.

Virginia Beach Circuit Court continued all civil, traffic and criminal matters, according to a March 17 announcement.

Chesapeake Circuit Court on March 17 cancelled all cases other than those exempted in the Supreme Court order. Requests for emergency hearings were directed to the judges’ chambers.

Richmond Circuit Court allowed only emergency motions in civil matters and only bond motions, bond appeals and arraignments for criminal cases, under a March 20 memorandum.

All civil, traffic and criminal hearings were automatically continued at all levels of the Chesterfield County courts, according to a March 16 press release from the circuit court. The courts reopened March 18 and Circuit Court is open and functioning, according to Clerk Wendy Hughes. Orders are posted governing procedures in the district courts.

Henrico Circuit Court posted an announcement March 17 saying civil matters that will be heard “include, but are not limited to, emergency matters, quarantine or isolation matters, arraignments, bail reviews, protective order cases, emergency child custody protection cases, and civil commitment hearings.”

Prince William County Circuit Court said on March 13 that criminal cases would continue to be scheduled and heard in accordance with normal practice. However, no additional civil hearings, motions or trials would be scheduled through April 30 except cases having “statutory priority.”

“The Clark is directed to limit the civil motions that may be scheduled for May 1, 2020 to a reasonable number as determined in her judgment to prevent that docket from becoming overcrowded,” read the order signed by Chief Judge Tracy C. Hudson.

Federal courts

All federal courts in Virginia were authorized on March 30 to use video or telephone conferencing for criminal felony pleas and felony sentencing under the CARES Act passed by Congress March 27. Other criminal procedure events also were eligible for videoconferencing or teleconferencing, according to March 30 orders in both the Eastern and Western Districts.

In the Eastern District, the U.S. district judges designated the Newport News courthouse as an “Emergency Judicial Center” to be sanitized and preserved for use as a “last resort” if other federal courthouses are rendered unusable. The move means the Newport News courthouse is closed until further notice.

In the Western District, court-appointed attorneys were being allowed to submit interim vouchers without motion under a March 30 order. A bankruptcy conference scheduled for June 12 was cancelled.

Updated April 7 to note Chesterfield County Circuit Court is open and functioning.