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California court closures in pandemic hinder law firms from doing 'essential' business as postponed cases pile up

"Case closed" is taking on a new meaning in California since Chief Justice Tani G. Cantil-Sakauye issued a statewide order that suspends all jury trials in superior courts for 60 days, sending North Bay law firms scrambling over how to move their matters forward.

Considered an essential business, law firms have been thrust into a new set of circumstances associated with the coronavirus outbreak.

Law partners from lower Marin to northern Sonoma and Napa Valley cited a multitude of issues with this statewide order. They range from court calendars in flux and lengthy procedures for securing signatures to the loss of in-person arguments and even communicating within their firms.

“Attorneys, clients and the courts have not had sufficient time to absorb all of the familial, social, health and professional upheaval this situation has brought in such an extremely short period of time,” Glenn Smith of Smith Dollar said. “While it is not unusual for civil cases to be continued, having all cases prolonged simultaneously and for an indefinite period of time is unprecedented.”

The shutdown has brought personal injury and business cases as well as probate matters to a screeching halt, Smith pointed out.

These unsettling times have led to the Santa Rosa firm even fielding at least 20 inquiries in the past week from couples seeing to dissolve their marriages, although Smith's company doesn't practice that type of law.

Like other area law firms, Smith has also noticed an unusual number of estate planning calls coming in as adults with time on their hands and concerns about their own mortality try to get their affairs in order.

Beyond his firm's specialties ranging from labor and environment to banking and finance, Smith serves as the president of Legal Aid of Sonoma County. Court closures dramatically affect the nonprofit organization's ability to help the needy, including the elderly and domestic violence victims.

Despite the courts making special concessions for emergency cases such as those relative to civil harassment and eviction injunctions, any type of delay may work to the detriment of vulnerable defendants. “The clients are often in a position where delayed justice is denied justice,” he said.

How we got here

The two-month state order set on March 23 followed chain-reaction government responses that started with Gov. Gavin Newsom declaring a state of emergency on March 4, before a national declaration was made by U.S. President Trump on March 13. Afterward, California counties with the San Francisco Bay Area leading the charge issued shelter-in-place orders three days later. The governor followed suit with a statewide order on March 19.

“Courts cannot comply with these health restrictions and continue to operate as they have in the past,” the chief justice said in a statement. “Court proceedings require gatherings of court staff, litigants, attorneys, witnesses and juries, well in excess of the numbers allowed for gathering under current executive and health orders.”

Exceptions exist relative to statutory deadlines and procedures, with individual counties forced to adopt new rules.

For example, Sonoma County Superior Court under order of Judge Bradford DeMeo has limited access to civil, family and juvenile courtrooms. Matters pertaining to the “defendants' constitutional rights” and health and safety will be considered as “essential” functions at the judge's discretion. Like many aspects of life around the globe, court proceedings using video conferencing has taken a front seat for matters that need to be heard.

But while using Zoom for virtual cocktail happy hours may deliver an adequate substitute to in-person contact, it pales in comparison to legal proceedings in which litigators seek communication clues from judges to know if their arguments are working.

“It's a huge disadvantage to not have oral arguments in person,” said John Friedemann of Friedemann Goldberg in Santa Rosa.

Friedemann insisted the new statewide order “definitely impacts” his law practice because of the uncertainty of how his legal profession will come out of the other end of this global pandemic.

Many issues abound, including law firms coping with the code of civil proceeding that attorneys follow. One delayed date impacts the others in a case in a domino effect.

“It boggles my mind how all those deadlines have trial dates that don't resurrect on their own,” he told the North Bay Business Journal.

“How are we going to deal with the backlog of cases?” Friedemann asked rhetorically. Many courts have experienced a heavy load before the COVID-19 outbreak.

Upping the value of notaries

The lawyer also noted the need for a remote notary program, in California, so there's no problem receiving mandatory signatures under the proper procedures.

The sideline issue represents one Roy Johnston of Johnston Thomas Attorneys At Law can relate to.

Johnston listed a litany of steps his law firm has undergone to get his four notaries to capture signatures. The procedures resemble something a Hazmat team may follow, from gloving in and out, securing the notary book in a Ziploc bag and conducting safe drop-offs at clients' residences.

“We've really had to think hard about (the process),” Johnston said.

Greg Spaulding of Spaulding, McCullough & Tansil in Santa Rosa told the Business Journal his 45-member firm is trying to take the evolving situation in strides.

The two operative words are “remote work,” with much gratitude the law practice handling many trust disputes has in enhancing its digital platform.

Spaulding anticipates more settlements in these types of cases as a result.

“Most clients for most situations do better when they settle. Trials are expensive and time consuming,” he said.

There are exceptions. A multi-party mediation was moved because it was believed the firm could “not do it remotely” to give the parties equal justice.

“It was pushed off a while. It's unfortunate for business disputes,” he said.

The verdict is still out on what to do with a trial set in late April that involves a multi-party, family dispute.

“That's one we would have liked to see stay on the (court) calendar,” he said.

Lighting a fire under a document-driven industry

For some firms like Spaulding's, the one blessing that emerged from the devastating wildfires was their persistent nudge to do more cloud computing.

“I think the fires gave us a big wakeup call,” said Patrick O'Brien of what his Petaluma-based law firm has experienced. “We anticipated something like this would happen. When we got the stay-home order, we were ready.”

O'Brien bought all 26 employees laptop computers and masks left over from the Wine Country wildfires in the last few years. At one point, air quality in the North Bay was so poor, it rivaled Beijing.

Still, O'Brien admits the firm that specializes in insurance cases has “big concerns” about where this pandemic will take the world.

“I thought I had seen it all - 9/11, the dot-com bust, the 2008 (economic) disaster, but we were not quite ready for a global pandemic,” he said.

With the mounting challenges, each county varies on rules associated with motions for summary judgments that fit into the county's new set of allowances and restrictions.

Keeping staffers on board

Napa Superior Court extensively cut back operations for eight weeks starting March 18, banning the public in all locations and jury trials as well as placing only time-sensitive matters on the court calendars. A drop box for emergency matters is available at the criminal court building located at 1111 Third St., and a hotline has been established from Monday through Friday at 707-299-1137.

One Napa legal practice, GVM Law, has also witnessed increased activity from clients tied to debt and equity financing as well as intellectual property. Along with many partners up and down the North Bay, lawyers Jamie Watson and Nick Donovan have been swamped with busy work performed outside the courtroom.

Even if it means everyone is working remotely, the firm insists it needs full operation from its 16 full-time attorneys out of 38 employees manning three offices in the Wine Country, Fairfield and Roseville.

They weren't alone. Most law firms mentioned a complete denial of entertaining layoffs or furloughs among their employees.

“We're busy. We have litigators, but the majority of the firm doesn't operate in the court from day to day,” Watson said.

South to Marin County, the Superior Court is closed for all non-essential matters, with no trials to be heard through May 22.

Andrew MacKay, a litigator and partner with Donahue Fitzgerald in Larkspur, cited the under-the-wire obstacles that go way beyond courtroom appearances.

The scaled-down office time of court clerks coupled with a backlog of cases may create an extraordinary scene for courtrooms everywhere.

“There could be quite a line out the door that day (they open). We could have a month's worth (of cases on the docket),” he said.

Jury trials also bring about extra challenges when the courts do go back into session.

“Jury trials have to bring in a lot of people. We're probably going to have to limit the number of people in the courtroom. You can't just go from 0 mph to 100.”

Some industry executives have wondered out loud whether the catastrophic outbreak will permanently change how their business conducts itself. In other words, will some industries elect to have huge clusters of employees working remotely?

“These are strange times for everyone. We're just trying to keep everyone working,” said Gary Ragghianti of Ragghianti Freitas in San Rafael.

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