How Courts are Coping with the Coronavirus

By: Judge Richard Dietz and Judge Philip Berger, Jr.  (North Carolina Court of Appeals) with an introduction by Professor Abigail Perdue

As courthouses across America work tirelessly to quickly adapt to the COVID-19 era, I asked two judges how the coronavirus has impacted the work of their court as well as their expectations of and relationships with their law clerks.  Their valuable insights are excerpted below.

How has the North Carolina Court of Appeals been impacted by the state’s shelter-in-place directive and social distancing requirements?

Judge Dietz: Courts provide an essential service to society, so we are still open for business. But our clerk’s office and court staff have transitioned to remote work whenever possible. Only a small, essential team is in the building day to day. The same is true for each chambers. Some chambers have a single staff member (often the judge) working at the courthouse, but most judges have instructed their entire staff to work from home and are doing so themselves.

There have certainly been some disruptions and a lot of adaptation, but we’re still doing the work of the Court. We issue opinions every other Tuesday, and on April 7, we issued more than fifty written opinions. In response to COVID-19, the North Carolina Supreme Court extended all appellate deadlines by sixty days, so I expect we’ll see a slowdown at some point. However, it hasn’t reached us yet.

Judge Berger:  Another noticeable impact is the lack of oral arguments.  Obviously, many cases scheduled for argument have been continued. However, panels have also reviewed several cases and determined that oral argument is not necessary.  While we do have the ability conduct arguments through videoconferencing, this is another reminder of the importance of effective briefs.

How has the coronavirus changed the way that judges work and interact?

Judge Dietz: Courts, especially appellate courts, are notoriously slow to embrace technological change. Transitioning to remote work highlighted some of our old-fashioned practices. For example, our Court has a tradition of circulating hard copies of opinion drafts and proposed orders. The authoring judge sends around a paper copy, and the other judges make handwritten edits and sign on a signature line at the end of the opinion indicating that they will either join the opinion or intend to write a separate concurrence or dissent.

With everyone teleworking, now every draft is circulated by email in electronic format. Making edits in track changes or typing them in an email is much faster than using a pencil and paper. I can’t speak for my colleagues, but I’m questioning whether we can dispense with using paper copies.

Judge Berger: I agree. One result is increased efficiency.  For example, in our chambers, the average circulation time for an opinion was six days.  However, since changing to a fully electronic circulation model, we have had at least five opinions that were fully circulated in less than a day.  One was even done in two hours.

How has the coronavirus altered the day to day work of law clerks?

Judge Berger: Appellate chambers are very much like a monastery, even on the busiest of days.  Most judges and law clerks typically toil away at their desks in relative silence.  With more court personnel working from home, judges have less direct interaction with law clerks.  For new attorneys learning their craft, the war stories and pointers gained in casual conversation with their judge or colleagues can benefit careers far more than the particulars of any case.  While writing and communication skills are improving, the transmission of basic information on how to practice law or try a case can be lost.

Judge Dietz: Right. It’s now more important than ever for law clerks to take the initiative to get as much out of the clerkship experience as possible. For example, if a judge sends back a revised version of a draft that isn’t using track changes, most word processing apps, including Word, have a compare or redline feature. Run it and compare the changes to the original draft. Often, just seeing precisely what edits the judge made can reveal helpful insights to improve a new lawyer’s writing, even if it’s not possible to sit down at a table with the judge and go over the revisions line-by-line.

Judge Berger: Continuity of chambers culture is important, and leadership plays an important role in this.  Judges must set clear goals and expectations for work ethic, deadlines, and work quality.  Whatever reputation and character your chambers had before the coronavirus, judges should continue to promote that same culture. For example, my chambers has always had an open door policy.  We still do, except now, it’s an open phone policy.  The benefit for us is that we no longer have wait to ask questions face to face; instead, we just call each other.  And talking on the phone is cool again!

Judge Dietz: Absolutely. I’ve struggled a bit because I know my clerks are reluctant to call me on my cell phone. They often ask “I hope I’m not bothering you” at the start of the call. I keep telling them no one’s bothering me. This is my job! And I miss the face to face brainstorming as much as they do, so I’m happy to do the best we can by phone or videoconference.

What qualities are important to be an effective law clerk when the law clerk is teleworking?

Judge Berger: Clerks must be inquisitive and self-sufficient. Being curious will help you distill and properly frame issues.

Judge Dietz: I agree. A key skill for new lawyers is learning to make the job easier for the more senior lawyers on the team. One way to do that is to spot issues, do the research and educate yourself, and only speak to the partner or senior associate when you feel confident that you understand the law and are ready to make the right recommendation. Working remotely and being forced to be more independent can really improve those skills. And it’s better to learn this skill as a law clerk with a judge who is invested in helping you improve than in a trial by fire with an overworked partner who isn’t nearly as patient.

Judge Berger: Another result of this situation is that there is less need for true executive assistants, especially in appellate chambers.  Appellate chambers generally do not have a great deal of foot traffic and incoming phone calls.  Many of the judges on our Court already use the judicial assistant position to hire an extra law clerk.  Now that most communication and the circulation of opinions is being done via email, there is the potential for law students interested in clerking to market their administrative skillset.  While a job posting with a judge may include administrative responsibilities, these positions will probably look and function differently in the near future.

Judge Dietz: That’s a great point. Part of being an effective lawyer is having solid administrative skills.  Whether you expect to be a solo practitioner or an associate in a massive firm, being organized and able to effectively use new technology will help you succeed. Now is the time to develop those skills and be able to pitch them to prospective employers.

Do you have any other advice regarding how law clerks, new attorneys, and law students can make the best of this difficult situation?

Judge Berger: Whatever the pros and cons of this new environment, there will be a real need for active mentorship.  Judges and seasoned attorneys should look to create opportunities to share their knowledge, and new attorneys should not be shy about asking for help or seeking to learn from their judges and colleagues.

Judge Dietz: That’s better than my answer. I was going to say wash your hands and don’t touch your face.

 

 

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