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Will Justice Survive the Coronavirus?

A stunning lack of preparation has left our Country on the edge of disaster. As we watch our institutions reel in response, an important question arises: what will this mean for our system of justice? In courtrooms around America justice has been grinding to a halt. Jurors can’t respond to summons without fear of contagion. Jury trials have been rescheduled for months in the future with no assurance they will happen then. Court appearances are being made by phone, if at all, and an already underfunded court system struggles to cope with depleted staff and a burgeoning crisis.

Injury cases and business disagreements need the court to provide resolution in order to assure that people and companies continue to function while divorce cases, custody disputes and a myriad of legal issues all require judicial guidance and closure to allow our lives to continue smoothly.

The trial of a case is the tip of a huge iceberg; before it can be ready for court, extensive preparation must occur. This process often involves experts and lawyers flying all over the country. The inability to travel or gather in groups will touch all aspects of civil litigation. An essential element of case analysis is the evaluation of sites, objects, experts and witnesses. If the lawyer is not able to physically observe something important or meet someone in person their evaluation may be impaired in critical ways. Most lawyers experienced in trial work recognize the importance of person to person interaction – be it with your client, your witness or the person you are cross-examining. Often it is not at all satisfactory to accomplish this by video conference.

There is an old saying in the law: “justice delayed is justice denied”. For the family that has been desperately working 24 hours a day to care for a seriously damaged loved one whose injury was caused by another, the inability to start their case because it has been moved for several months may mean the difference between the survival a successful trial can provide or failure from physical and emotional exhaustion caused by a devastating delay.

Of course, in many such disputes involving damage to individuals or property the defendants are insured; one might reasonably presume that these cases could simply be mediated and resolved during the months of court closure, saving both parties the expense of further preparation and the risks of trial. Devastated families, businesses and individuals could accept a compromise and move on with their lives. Unfortunately, that is not how insurance companies operate. Delay is money in the corporate pocket. Insurance companies don’t make business decisions based on the needs of desperate families or humanitarian principles. After all, it is possible the brain damaged child, or mother whose cancer was misdiagnosed, might die in the meantime – their case for damages would die with them.

If this situation continues beyond the next few months, then the system of justice will have to innovate or collapse. Lawyers are already operating over the phone and using video conferencing to prepare their cases. The results are nowhere near as satisfactory. The courts are delaying jury trials and litigants that have incurred great expense and been waiting for years now have nowhere to turn.

Eventually, in order to provide a jury trial, the courts may have to create safe zones for jurors who will observe the trial on television rather than in the courtroom. Witnesses will testify from a conference room with the players on split screens showing the judge, the lawyers and perhaps other key personnel. The jurors may not even be seen. The administration of justice will have become remote, more akin to a Hollywood production than the very human, personal drama that is a jury trial in America.

In a desperate effort to deal with this crisis, we may lose one of the most important elements of the jury system. The essence of a jury trial is the gathering of citizens from all socio-economic levels and walks of life. This cross-section of our society meets together and acts as a community. They have a remarkable opportunity to evaluate other human beings in the flesh - parties, experts and witnesses, all under the watchful eye of a robed judge and subject to close examination in the arena of the courtroom. This is where the truth becomes evident – where people reveal their souls – up close and personal in the crucible of justice.

The jury trial is a revered pillar of the American system of laws. Our extensive use of this method of dispute resolution is essentially unique. It is enshrined in our national constitution and that of virtually every state. For generations we have resisted the plea of corporate America to lessen or abolish it. For the ordinary people of our country it is the great leveler of the legal playing field. When a huge corporation has caused harm or we are accused of a crime, we don’t want our future decided by some judge who might owe his or her existence to the system. We want the combined wisdom of other people like us to sit in judgment. Juries may not always get it right, but if they miss, it’s not because they weren’t trying to do justice. Unfortunately, a decision rendered from a pestilence inspired cocoon, after a TV production, and without any real human to human interaction, will just not be the same.

In America we have one of the greatest justice systems in civilized history, but it has been brought to its knees by this pandemic. If we don’t reverse our descent into the chaos of contagion quickly, the system may have to change dramatically in order to function. While immersed in this battle we need to recognize our remarkable system may not be able to provide the quality of justice for which it has been admired all over the world.