All In The Family

Originally published in the 2023 U.S. News and World Report - Best Lawyers "Best Law Firms" publication on November 2, 2022. 

In early March 2020, many of us were looking forward to the traditional rites of the new season—baseball’s spring training, the NBA finals, students’ spring break. Who could have imagined that within days, a devastating global pandemic would fundamentally transform our entire society, including the practice of law? The images of our biggest, busiest cities forced into eerie standstills, mixed with a constant dread of the unknown, remain deeply ingrained in our collective memory.

At the same time, questions swirled around something else unthinkable: What would happen if the American justice system became paralyzed? How could cases possibly be handled when none of the participants were permitted to be in the same room?

Such concerns were particularly heightened in family law, much of whose litigation is already time-sensitive and fraught with emotion; indeed, motions concerning child support, parenting time, custody, education and medical care are often characterized as “emergencies.” As COVID-19 turned the world upside down, it also spawned new family-law battles, as parties now disagreed on such things as the safety of travel and vaccination for their children and sought modification of existing orders regarding financial support and parenting, due to one or both parties losing employment or taking a leave of absence. In addition, lockdowns correlated with increased incidence of domestic abuse requiring intervention through orders of protection. Finally, extended quarantines also led many couples to realize they no longer wished to be together, and that divorce was the next step.

The stressors of this unprecedented situation challenged the bench and the bar to quickly pivot from the traditional in-person model to embrace new technology and craft innovative procedures and policies to administer justice remotely.

Think back: In March 2020, the term “Zoom” (in its professional context) was foreign to most of us, and the concept of working from home was in mere infancy. But as the weeks passed and it became clear that this crisis would endure, courts embraced this “new normal” to reopen and begin managing both the backlog of cases and those newly filed. Many wondered, however, whether this sea of change in the practice of law would prove workable.

So far, the results are promising. A report issued in December 2021 by the National Center for State Courts concluded that remote hearings improve access to justice and are particularly well-suited for certain types of cases—including family law matters—as they allow litigants to participate in the process more easily by reducing the obstacles (work schedules, childcare, transportation) that can make it hard to attend in-person sessions. The report also found that remote hearings are best for proceedings of shorter duration and of limited scope, including status, discovery and permanency hearings; the setting of trial dates; certain non-evidentiary or non-witness motion hearings; and divorce dockets in which the parties have reached an agreement.

Thus, having weathered the unexpected storm of the pandemic, our state courts adopted innovative procedures to deliver services in new and efficient ways. Will we return to the pre-pandemic model? Consider comments from state-court chief justices. Anne M. Burke, chief of the Illinois Supreme Court, has said that “the Illinois courts were exploring new policies for expanding remote appearances in civil cases before the pandemic hit, [but] COVID-19 accelerated the adoption of those policies for both civil and criminal cases and created an opportunity for our courts to use technology to improve the administration of justice, increase efficiency and reduce costs.” Michigan Supreme Court Chief Justice Bridget Mary McCormack acknowledged that the pandemic “was not the disruption we wanted, but the disruption we needed.” Chief Justice Nathan Hecht of the Supreme Court of Texas has observed that “the American justice system will never be the same.”