COVID-19 and the Courts: A Case Study of Contrasts, Reengineering and Observations

Janet G. Cornell

Court Administrator (ret.) and Consultant

The coronavirus pandemic presents challenges for courts to manage operations and ensure ongoing access to justice while providing a profound opportunity for change. After the urgency settles, courts will be faced with taking the lessons learned and implementing lasting new ways of doing business in a way that measures successes and outcomes.

Contrasts

Dealing with court operations during the COVID-19 pandemic is a case study of urgency and reengineering. But even more so, it is a study of contrasts from the way it was to the way it will become.  Courts have experienced immediate pressures to change the way they do business. Some examples include:

  • Redefining what is critical, urgent, and necessary;
  • Immediately mobilizing new processes;
  • Changing access to courts;
  • Relaxing deadlines and processes;
  • Deferring juries/jury trials;
  • Deploying technologies and urgently providing remote access; and
  • Communicating with staff and the public about new processes.

As our courts seek ways to do their business, contrasts appear, wherein some old ways of leading and operating are minimized, and new ways come to the forefront.  They include:

  • Day-to-day operational pressure versus time for strategic planning;
  • Deliberation and stakeholder collaboration versus immediate actions;
  • Management of internal people, processes, and perceptions versus the need to manage public and external perceptions;
  • Rule adherence versus rigid adherence to rules and processes;
  • Use of case management time deadlines versus deferral or relaxation of rigid deadlines; and
  • The way it was versus the way it is, or, normal versus the new normal.

Typical Leadership Actions Regarding Change

Reengineering has been a typical leadership action to implement change. During reengineering, court leaders evaluate processes, use or deploy technology, change procedures, consolidate functions, assess staffing levels and assignments, and seek efficiencies. They may link or couple activities or segregate them based upon area of service and need.[1]

“Reengineering a court system involves evaluating and adjusting any number of court operations—from the structure of the court itself to venue requirements, to its use of technology to improve processes and save money while increasing efficiency and maintaining service levels to the public.”[2]

Another approach is to reevaluate leadership techniques in times of crisis. One recent article outlined reminders for leadership resolutions.[3] These resolutions are more critical than ever, especially regarding communication and taking initiative.

  1. Communicate clearly and keep your word.
  2. Cultivate relationships before you need them.
  3. Put yourself in the shoes of the people you serve.
  4. Engage your residents, staff, and stakeholders in key decisions and planning efforts.
  5. Seek feedback and follow up.
  6. Take initiative when it counts.
  7. Do the right thing and keep focused on the mission.

Part of evaluating leadership techniques is considering which practices are needed based upon the nature of the business challenge. The National Association for Presiding Judges and Court Executives (NAPCO) published a document about leadership and managing new court directions (to include responding to a crisis).[4] The article states that we should:

  • Think about and remember the complexity of a court as an organization;
  • Consider the importance of finding hidden assets and strengths within the court organization;
  • Advance leadership via communication, influence, and persuasion; and
  • Reflect on lessons learned to leverage ongoing change efforts.

In the current environment, court leaders are bringing a variety of techniques to bear.  They include:

  • Being willing to take a risk;
  • Creating simplified processes;
  • Determining methods to know what is working/Doing empirical evaluation; and
  • Evaluating which techniques should “stick” or remain after the pandemic.[5

Thoughts and Observations

  1. Will there be a “new normal?” Will the “new normal” mean use of different  standards?  Will it require different practices?  Must we implement altered processes?  No doubt we will make new choices, and there will be different standards and expectations.  In the courts, where most, if not all, practices have been vetted and in place for a long time, value is reserved for tried-and-true practices.  Court leaders will likely no longer rely upon using only the tried-and-true practices.  The users and public will likely not be satisfied with old ways.
  2. Advice from a NASA astronaut may provide insights on dealing with something so novel that we do not have all the tools figured out to solve the problem. A former astronaut, Col. Terry Virts, recently commented on the Apollo 13 flight, which almost ended in tragedy.[6] Astronauts on board the flight had to keep their wits, make some risky decisions, and reengineer the flight so that it would return to Earth. Col. Virts noted skills and traits the astronauts used:[7]
  • Stay calm;
  • Figure out what is going on; and
  • Determine and identify what IS working.

As courts develop new practices with technology, set streamlined protocols in place, and determine new ways of doing business, staying calm but firm and using evaluation and analysis will serve us well.3. The practice of using adaptive leadership may come in handy.[8] The concept of adaptive leadership relates to knowledge and skills for leaders to embrace and thrive in uncertain times.  The foundational concept is that the challenges cannot be solved by existing knowledge and techniques that have been in place, but instead must be solved using new information and new knowledge.  The chart below illustrates differences between technical leadership (or solutions to problems) and adaptive leadership (or resolution of problems).  Court leaders should seek ways to exhibit adaptive leadership.4. The ability to evaluate and measure will be critical.  Using data and metrics will be a valued skill.  CourTools measures and the National Center for State Courts High Performance Framework offer ways to measure the work and products (outcomes) from courts.[9]

The recently released report by BCG Henderson Institute provided some insight on the future after COVID19.[10] The report notes that crises led to long-lasting changes and shifts in thinking—such as different policies, innovative ways of working, and new consumer (or court user) behaviors.  The report asserts eight steps to “sense, exploit, and shape” the future (court-related notes added in parentheses):1. Expect change and look ahead;2. Understand broader social shifts (justice community shifts);3. Scrutinize granular and high frequency data (court metrics);4. Identify your own revealed weaknesses and areas for preparedness and agility;5. Study regions (courts, justice entities, or partners) further ahead in the crisis;6. Scan for maverick activity;7. Look at which new patterns reduce friction (delays, barriers, complexities, inconveniences);8. Maintain hope and a growth orientation.While courts continue to reengineer and redesign current and future operations, perhaps the most important leadership actions consist of leveraging the stark contrasts of how courts worked in the past versus how they work in the present and future. Courts will look back on this as a defining moment.  New techniques will be shared.  Refined strategies will build upon them.  Further analysis will occur. Courts will learn from each other. Courts must be part of the “new normal” by leveraging the contrasts, adapting solutions, and measuring how they work.


[1] Several articles about reengineering are included in C. R. Flango et al. (eds.), Future Trends in State Courts 2010 (Williamsburg, VA: National Center for State Courts, 2010) and in the National Association for Court Management Guide, Fundamental Thinking for High Performing Courts, 2013.

[3] Elizabeth K. Kellar, “Public Leadership Resolutions for Uncertain Times,” Governing.com, January 2, 2019.

[4] Dr. Barry Dornfeld, PhD, Center for Applied Research, “Leadership Guide 2: Stimulating and Managing New Court Directions,” adapted from a 2107 NAPCO Conference Trial Court Leadership Academy Day.

[5] These strategies and comments were part of a National Center for State Courts’ webinar on “Access to Justice—Considerations for State and Local Courts as They Respond to COVID-19, a Conversation,” broadcast April 3, 2020.

[6] Apollo 13 blasted off on April 11, 1970, as the seventh mission of the Apollo space program.  A malfunction in the space capsule/service module caused mission control and the crew of three to adapt and innovate to return safely, which they did on April 17, 1970, after aborting flight plans to land on the moon. This flight became a case study of innovation and stamina in the face of challenges.

[7] Col. Terry Virts, former NASA astronaut, Space Shuttle pilot, and commander aboard the International Space Station, interview with Fox News Channel and commentator Neil Cavuto, broadcast on April 10, 2020.

[8] Adaptive leadership and problem solving has been covered in several books, among them Ronald A. Heifetz and Marty Linsky, Leadership on the Line: Staying Alive through the Dangers of Leading (Cambridge, MA: Harvard Business School Press, 2002); and Ronald Heifetz, Alexander Grashow, and Marty Linsky, The Practice of Adaptive Leadership (Cambridge, MA: Harvard Business Press/Cambridge Leadership Associates, 2002). Information is also available here.

[9] Content adapted from the National Center for State Courts’ Framework materials (see “High Performance Courts Framework”). A variation of this chart was initially published in Janet G. Cornell, Felix F. Bajandas, and Nathan Hall, Shared Self Help Center Assessment and Planning for the Second Judicial District Court, Washoe County, and Reno Justice Court (Denver: National Center for State Courts, 2018). This chart is excerpted from Janet G. Cornell, Cyril Miller, and Kent Pankey, “The High Performance Challenge: Employing Framework Concepts in Your Court,” Court Manager 35, no. 1 (2020).