June 23, 2021
The COVID-19 pandemic impacted every aspect of life and society, including court operations and functions. In a Trending Topics posted in March, we provided some data on backlogs in state courts. A recent Law360 article mentioned some of the ways courts are addressing these issues including mediation, virtual jury trials, and the use of "special judges."
Mediation, already in practice in many courts in the U.S., has been introduced or expanded in a variety of courts. In Tennessee, over 300 attorneys have volunteered to serve as mediators to try and help in civil matters. North Carolina has done something similar specifically focused on issues related to evictions.
The use of quasi-judicial officials, or retired judges brought back into service, is also a means by which courts have tried to address backlogs. These officials may take on less-pressing issues such as officiating weddings or handling lower-level civil and criminal matters, while other states and individual courts utilize them in any and all case types. New York uses a "certification" process by which state judges may continue to serve on the bench even when they have reached their retirement age. That program was subject to budget cuts, however Chief Justice Janet DiFiore announced recently that the state judiciary will be able to reverse a decision not to certify 46 judges.
Finally, a key consideration is that no one particular item or method will be sufficient to address the needs of state courts coming out of the pandemic. The New Jersey courts have announced that their plan will include hiring more staff, conducting trials virtually, and expanding efforts to obtain pretrial settlements especially in the area of landlord-tenant cases. Another option: training individuals as landlord-tenant legal specialists that could conduct case management conferences, collect case information, and prepare cases for adjudication.
Many of these ideas and others were discussed and developed by the Conference of Chief Justices/Conference of State Court Administrators Rapid Response Team (RRT) as part of its Twelve Essential Steps to Tackle Backlog and Prepare for a Surge in New Civil Cases. It is a useful resource to help courts at this moment after the case filings are rising and also the backlogs. In the end, the way to tackle backlogs will be a managerial one and not necessarily a question of just judges. "You can’t judge your way out of a backlog," said Jennifer Bailey, administrative judge of the Civil Division of the 11th Judicial Circuit Court of Florida, in Miami. "You can only manage your way out. Been there, done that."
For more information, contact Knowledge@ncsc.org or call 800-616-6164.