Pandemic Forces Supreme Court to Change. What’s Next for the Legal Community?

In another sign of the epochal impact of the coronavirus, the Supreme Court is conducting its hearings via teleconference for the first time in its history.

But sadly, with all the high-tech wizardry that is available and expected in 2020, the nine justices and attorneys were still not able to be seen by the public.

The Texas Supreme Court and several Texas and federal courts of appeal have already conducted and livestreamed hearings on You Tube. And many other appellate courts have videotaped and audiotaped their hearings for years.

So it is hard to believe that the U.S. Supreme Court is the only branch of government that has always restricted Americans’ right to see it in action. It seems to be operating in a technological Stone Age.

In this video-drenched world, we take it for granted that we can watch everything. For example, try to imagine only listening to the impeachment hearings or a presidential news conference.

Still, allowing the public to finally get to hear the guarded justices ask questions was a quantum leap forward for the tradition-bound court.

It reminded me how my world opened up when I won a newfangled transistor radio when I was 10 years old in 1964!

The cases affected by teleconferencing

The court is hearing 10 cases over the next two weeks by telephone. Several could affect the upcoming presidential election. So the fact that the court is even meeting is significant.

Here are some of the appeals the court has and will consider:

  • On Monday the justices heard arguments about whether organizations that fight HIV abroad can receive federal funding.
  • On Tuesday they considered whether a company like can trademark that name.
  • Yesterday the court delved into two important issues, the first one highly controversial:
     The Trump Administration’s objections to rules mandating contraceptive coverage in the 2010 “Obamacare” health care law, and
     The legality of the the 1991 law prohibiting “robocalls” to cell phones filed in part by political consultants who no doubt want to flood our iPhones with election messages.
  • Next week the justices will hear the explosive case regarding the power of Congress and federal prosecutors to subpoena President Trump’s financial records.

How these new hearings have differed

They are far different than before, highly structured and less chaotic. Chief Justice Roberts asks questions, then calls on justices in the order of seniority. So there are no rapid-fire questions when justices interrupt the lawyers almost as soon as they start speaking. And with limited time, justices cannot advocate their positions and attempt to sway others on the bench.

To underscore just how “revolutionary” this new process is, Justice Clarence Thomas shocked court observers when he actually asked a question during Monday’s hearing. The justice is famous for never speaking during hearings.

The court may continue to hold hearings like this long into the future, especially since six of its nine members are 65 or older and are more susceptible to getting the virus. Two are in their 80s (Justices Ginsburg, who was in the hospital but still participated yesterday, and Breyer).

Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh

The telephonic appeals have proceeded without technological problems, for the most part.

Here’s one vote for making the Supreme Court livestream its hearings.

How will the practice of law change?

The law is notoriously slow to change, but the coronavirus could lead to major reforms for the foreseeable future, if not beyond.

Now that law offices and courtrooms across the country have been virtually shut down for several months, will attorneys and judges be forced to change their former way of doing business?

The Texas Supreme Court released this “guidance document” this week with further instructions to the courts and legal community. We could all see this coming: face masks will be required for all people in the courtroom. Further, the bailiff will take the temperature of all people entering and counsel tables will be moved apart. Only two people will be allowed to ride in an elevator.

Here are some questions to ask:

1. Will attorneys be able to meet their clients in person?
2. Will law offices and courtrooms have to be reconfigured?
3. Will all attorneys, judges, and clients always have to wear masks and stay away from each other?
4. Will meetings, depositions and mediations be conducted remotely?
5. Will judges conduct hearings, trials and appeals by video or telephone?

6. Will jurors refuse to go to a courthouse so that the jury trial becomes a relic, like a book store?
7. Will the internet make the legal industry’s lock on information and processes obsolete?
8. Will software like RocketLawyer get quarantined consumers to file their own divorces, bankruptcies and personal injury claims the way they can file their 1040s usingTurboTax?
9. As a result of these changes, will justice become more accessible and affordable? With over 33 million Americans already filing for unemployment and many Fortune 500 companies about to file bankruptcy, this issue is more critical than ever to both large and small law firms.
10. Will society, attitudes and expectations change in general and if so, how will this affect the size of jury verdicts and other legal results?

How will the virus affect attorneys?

A vaccine, which is not guaranteed to be effective, is at least 12 to 18 months away. And other strains of the virus can and will emerge.
The world economy is precarious. We are sitting on a keg of dynamite. It is going to be a brave new world.
Where is the pandemic taking the legal profession? Stay tuned.

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