What is Used to be Before Court Shutdowns from COVID
Before COVID19 came to Oregon (back in the day when we thought that it might be an epidemic confined to somewhere else in the world), court hearings and trials took a long time to schedule. For a hearing (a court appearance other than a final court appearance which is called a trial), it would often take 2-3 months to get 3 hours of court time, and longer if you needed a full day. Trials would usually be scheduled 7-9 months from the time that the response was filed. Courts often schedule 2-3 hearings or trials during the same time, counting on that many cases are able to be settled without going to court.
Different Counties Have Different Systems: Washington, Multnomah and Clackamas
In Washington County, there is a dedicated family law bench, with 3.5 full time judges who handle only family law cases. The judge is assigned to a case when the case is filed, and all hearings and trials are scheduled through the individual judge. In Multnomah County, there is a dedicated family law bench, where there are 10 judges who only do family law. Cases are not immediately assigned to a judge. There is a judge assignment the day before the hearing is scheduled, and cases are assigned out to the judge who is available. If a judge hears the case for an hour, that judge is then assigned to that case, and all scheduling goes through the individual judge. If the case is anticipated to last more than 5 hours, then parties must ask for a special set so that the case can be assigned to a judge ahead of judge assignment. Also, a judicial “day” doesn’t mean 8 hours from 8 am to 5 pm with an hour for lunch. Judges have ex parte responsibilities, emergency hearings and meetings that are often scheduled first thing in the morning, right after lunch, and at the end of the day. A judicial day is usually 5-6 hours. If you do not anticipate enough time for your matter to be heard, maybe the judge can find you a few hours the following week to finish the hearing, or maybe the hearing is continued two months out. In Clackamas County, there is not a dedicated family law bench, but 10 judges who hear all types of cases. The day before your hearing or trial is scheduled, you call the docketing clerks and tell them how much time you will need, and if you have out of town witnesses or experts. Then about 3:30 pm, the clerks take a look at which judges are available for what slots of time. Sometimes there are not enough judges available, and your case is put on “standby” where you wait to hear the next morning if a judge becomes available. Sometimes your case is reset in normal rotation, and your new court date is usually 2-3 months out. Like other counties, usually far more cases are scheduled than there are judges available, to allow for cases that settle.
And then came COVID19.
As soon as the first case appeared in Oregon, and it became apparent that the rate of infection was spreading fast, I knew that courts would have to be shut down. Even though there may not be more than 6-10 people in a courtroom, including court staff, attorneys, clients, witnesses and supporters, in a family law case, thousands of people come into a courthouse during the day to file court documents, to schedule a hearing, to look at court files, or to get help from a clerk if you trying to file things yourself. There are also jury trials, which require sometimes hundreds of jurors to be available for jury trials and criminal cases in a single day. There isn’t enough space to have social distancing, or to limit public access to allow social distancing. Courthouses are very much of a community hub, and there are constitutional rights to have public trials.
Courts initially shut down for two weeks in March, then another four weeks, and finally, through the end of May, unless another court order decides to keep the courts closed depending on what the public health officials say is happening with gradual reopening of businesses.
What is Available during the Court Shutdown?
In each area of law, there are specific types of court hearings that are still going on. In family law, you can still apply for immediate danger for custody and parenting time issues, for enforcement of parenting time, and for abuse restraining orders. You can still have hearings on these kinds of issues. But if you have lost your job because of COVID19, and you need to modify your child support, whether you can even file a motion, or get a court hearing scheduled depends on what county you are in, and how the courts are handling it. In Multnomah County, the courts are not allowing anything, other than the “emergency” type motions, to be filed. If the cases have been specially assigned to a judge, those judges are resetting their own cases that have been cancelled by the closures of the courts. If the cases do not have an assigned judge, nothing is being scheduled until the courts reopen. In Washington County, you can file documents, particularly if you are an attorney and can electronically file the documents. You can process stipulated judgments, and they will be routed to the “judge of the day” for review and signature. However, nothing is being scheduled or rescheduled, until they know when the courts will reopen. You can file a motion for modification, and it can be served, but there will not be a hearing scheduled. There is also a backlog of orders to be reviewed for signature by the judge of the day. In Clackamas County, the cases that were cancelled during March, April and May are being rescheduled after July 6. There were already cases scheduled during July and August, so the cases that have to be rescheduled fit in around already scheduled cases. In my office, a case that was originally set in April has now been scheduled for November. Anything that is now being filed, such as a motion or a new case, is not being scheduled until after the cases that were cancelled are being reset. Because Clackamas County is a general docket county, it is very likely that even if you are scheduled for a family law case, criminal cases which have constitutional deadlines will be given higher priority and your case may be rescheduled yet again.
What to Expect Going Forward
I cannot yet wrap my head around how long it is going to take to get back to a “normal” length of time for hearings and trials to be scheduled. I don’t think anyone knows right now. If you can’t even file a motion to “get in line” to be scheduled, it may be a very long time indeed before you will be able to have access to a courtroom to have a judge resolve your case. Even if you are able to get in line by filing now, hoping that cases will be scheduled based on when they were filed, I think it highly likely that any new matters will not be scheduled before 2021. We are also going to have stressed out judges and court staff, who will be dealing with people whose issues have been on holding, and building in complexity and tension for months.
Good News: There are Alternatives to Court Trials
The good news is that there are alternative ways to resolve disputes, through remote mediation and arbitration, and then in-person mediation and arbitration, so that you don’t have to wait to go to court. There is also plain old fashion communication and negotiation. Lawyers are first and foremost problem solvers. I always look for a solution that will work for each family that does not necessarily involve going to court, which has a great deal of financial and emotional cost. Getting advice from an attorney is especially important if you want to try and resolve your dispute yourself, then have a lawyer draft it. You don’t want to panic and agree to something that you will regret for yourself or your children, because in the moment you were frightened by the lack of court access. There are some things that you can live with for the sake of compromise, and some things that you should not live with because you felt pushed or pressured into an agreement.
I also have confidence that the court system will get back to normal, although it may take a very long time. We are all committed to our justice system, and will do what it takes to get things working as best as possible. I also think that during this period of craziness, we are learning “work arounds” that we have never done before, such as remote video conferencing, and electronic filing of evidence. Those work arounds can become standard practice, with the goal of having things run a little smoother, to get back to getting disputes resolved.
It’s not going to be easy to get our court system back on track, but we are all innovative people who can find ways to deal with disputes that need to be resolved, whether through a court hearing, a mediation, or negotiation. You have heard it before, but it is still true: we are all in this together, and we will find a way through.
