State courts are taking bold steps to address COVID-19

Hearings by video technology are not the only overnight structural changes sweeping through state court systems. From oaths to online appellate filings to digital signatures, state courts are taking bold steps through emergency measures that could impact litigation for decades to come. Even though they are being made literally overnight to protect public health, many of these changes are long overdue procedural reforms with potentially long-term benefits.

Administration of oaths: Telephonic and video depositions are nothing new. However, many states like California have long required that the deponent and the court reporter be present in the same room. Through their emergency orders, Massachusetts and Texas courts overnight have permitted such oaths to be made remotely via video technology or telephone as long as the giver of the oath sufficiently recognizes the identity of the person taking the oath. In addition to providing the 'social distancing' safety needed right now, such changes can be made given advancements in technology and trust of litigants.

Appellate court filings and documents online: Trial courts have long been the 'early adopters' of the e-filing world, but appellate courts are also making changes through emergency orders. On March 18, the California Supreme Court revised Rule 2, "Supreme Court Rules Regarding Electronic Filing" mandating the filing of "all documents (including briefs)" except for pro per litigants and trial courts. Similarly, through the order of its chief justice, Nevada simply changed the settings on its appellate portal making all nearly all appellate documents including appendices freely accessible via hyperlink.

Hard copies no longer needed: The COVID-19 pandemic may also have finally caused routine processing of hard copies to come to a grinding halt. For example, the California Supreme Court ordered in its changes to Rule 2 that "paper copies should not be submitted." New York appellate courts likewise suspended their requirements for hard copies "until further notice". Many courts including Los Angeles County are setting up drop boxes for paper filings on the courthouse steps. But even these filings will face new challenges. For example, in South Carolina, emergency orders even specify that the hard copies themselves will actually also be quarantined for 48 hours before being reviewed. Given that the length of reductions in staff and court closures is unknown, backlogs of paper copies may exist for weeks or months.

Digital signatures: For decades, some jurisdictions have continued to remain dubious about completely switching to electronic signatures on pleadings. Through emergency orders, Kansas, Vermont and South Carolina shifted their positions overnight. As recently amended, California's Supreme Court Rule 2.257(a) broadly defines an "electronic signature" as "an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign a document or record created, generated, sent, communicated, received, or stored by electronic means." Federal courts and agencies also have long allowed broad definitions of e-signatures.

Broad discretion given to lower courts: Many states, including California, have issued generalized emergency orders while giving broad discretion to lower courts. Several supreme courts such as Washington state, simply allowed all courts to "adapt, modify and suspend court rules and orders ... as warranted".

Social media for urgent messaging: Getting the word of these overnight shifts in thinking about electronic means of litigating, court systems large and small are heavily promoting the latest information on their normally stodgy Twitter accounts and Facebook pages, including California (@calcourts), Los Angeles (@lasuperiorcourt), San Francisco (@sfsuperiorcourt), Florida (@flcourts), New Jersey (@njcourts), New Mexico (@nmcourts), Pennsylvania (@pacourts and @supremecourtofPA) and Texas (@txcourts). Court systems which are not normally open to email communications are directly encouraging it. Even the tools of mass marketing are being called into play. The heavily impacted New York courts are using automated robocalls through subscriptions of registered users. In Chicago and New Jersey, text message systems have been put into in place -- simply text "Alertcook" to 888-777 to receive updates regarding Cook County courts.

Many state court emergency orders are set to expire in mid or late April. Courts will likely be reviewing and revising these orders, tailoring them to the unforeseen exigencies to come. Over the next several weeks of continuances, California courts likewise should consider further emergency modifications of procedural rules to enhance and encourage remote litigation. For example, California Code of Civil Procedure Section 2325.31(b) still requires that a "party deponent shall appear at the deposition in person and be in the presence of the deposition officer." Local court rules requiring provision of hard paper courtesy copies continue to provide added expense to litigants, and perhaps the time to dispense with them is also at hand.

Once the COVID-19 pandemic is over, litigation in the 21st century will remain. In less than two weeks, state supreme courts have literally wiped away dozens of court rules which prevented adoption of electronic and communications technologies. Are the days of billing clients for travel time to court and paper copy costs finally over? Is traditional resistance to all-things digital finally going to be wiped away? Do emergency orders eliminating the last vestiges of the analog world come with the price of eliminating the trustworthiness of real signatures and the convenience of paper? As the orders fly fast and furious, it is time to provide real and long lasting reforms to that allow efficiencies using modern, remote technologies for good. 