Law in the Time of Plague
April 22, 2020 § 3 Comments
Some ruminations on our current state of affairs:
- It was March 13, 2020, when the MSSC issued its first emergency administrative order to address covid-19 and the courts. From the vantage point of only a month and a week later, that seems like a century ago. What we hoped would be a week or two ordeal has persisted … and looks like it will continue to persist into the foreseeable future.
- Who could have imagined the scope of isolation? If I ever gave pandemic any thought at all it was on my scale of worrisome things right around quicksand, poisonous cobras, and werewolves. Now I think about it — a lot. Living with pandemic is like living in a city stalked by a random shooter. You never know whether this particular trip to the grocery store is the one that will do you, or whether standing in line at the post office is where it will get you, or whether this visit to the court house …
- The Governor is mulling over when to roll back the restrictions he imposed to limit spread of contagion. As for the courts, though, keep in mind that we are not subject to the Governor’s authority because we are a separate, equal branch of government. The MSSC has administrative authority over the courts. Of course the high court respects the Governor’s guidelines and tries to incorporate their boundaries into the court guidelines as much as possible, but in the final analysis the court goes its own way. My point being that, once the Governor drops his restrictions, do not expect the courts immediately to do the same. It might be that the courts may continue restrictions in place. Judges will continue to follow the MSSC’s Emergency Administrative Orders as long as they remain in effect, and as they are changed.
- One salutary, I suppose, development has been to influence mossbacks such as I closer to use of Zoom, Face Time, and who knows what else to do the court’s business. That may end up being a long-term and even permanent change that the pestilence brought to our daily practice.
The Better Chancery Practice Blog 
Another aspect of all of this will be the law needed to address the not only the purely situational and anecdotal (hopefully, states having the slightest cause to sue foreign governments over a viral pandemic will be a case of first, last, and never again impression) but also the changes and accommodations made, often hastily, in the face of this. Is this or that cause, claim, or defense “frivolous” in a brave new world? If you jump to conclusions and say, “yes, because…” or “no, because…,” at what point does creative and accommodative thinking get run over by the freight train of uncontrolled irrational exuberance (and unfortunately, money-grubbing greed)? Do we allow the baby to be split, a sacrifice to the pandemic, because some must die alone or suffer miserably so that the rest may be able to go shopping, out to eat, and gather closely with wild abandon? I hope and pray, “no.” On the other hand, no court can order the restoration of “love,” that both sides get 100%, or reverse a fatal accident. Hard, unemotional choices will still require decisions to be made and monetary amounts assigned.
I’d suggest a fair amount of fore-thinking, planning, and even “tabletop exercises” may be in order to minimize the “deer in the headlights” problem when all of this comes crashing into the law offices, courts, and society when things go back to whatever will be “normal.” The first cases of wrongful death have been filed and I strongly suspect that PI cases, if they haven’t been filed around the US, are being drafted as I draft this.
I would also suggest that attorneys refrain from immediately thinking, “Oh, well, that will or won’t work because of…” New weapons are invented and built all the time, some effective, some not, which spurs (or forces) the invention and creation of new defenses, some effective, some not. While the old saw, “Don’t try to reinvent the wheel…” has some broad merit, the wheels from a prairie schooner won’t fit upon, and simply won’t work on, a 4×4 pickup. We may not need to completely “reinvent the wheel,” but we will have to make some major changes to many aspects of it if we expect it to be an effective part of transporting us forward.
I am reminded of something my grandfather told me as a very young boy – “The law would be much simpler if it didn’t involve people.” It remains to be seen if this virus or “May you live in interesting times” will turn out to be the greater curse to have originated in China. Stay safe and be careful IN there.
Remote hearing can save clients’ money, and courts and attorneys time in routine matters. Hearing with witness and credibility issues still need to be in courtrooms. With a view of relying on president, and meager resources, courts are often guided by the past, which is why I sometimes have to bring a court file for a judge in a more rural courthouse. Thank, goodness, for the internet and MEC. Now if I could only get that mic to work on my desktop for that hearing. Previously it was the video. (Where’s my staff?)
Can anyone explain why all courts are not on MEC? MEC has been running for ten years.