Wednesday, April 08, 2020

Twenty years ago, I  was on the Justice millennium task force.  We  were tasked with making scenarios for all sorts of eventualities in case of the millennium bug causing various forms of computer failure. For the under-30s: this bug could not recognize 2000 as a valid year and might stop our computers from working properly. We ruminated on eventualities: what if the electricity stops? If the electricity stops, what about the technology that manages the water table? A serious issue in a country that is largely under sea level. What branch of justice should be given priority when this happens? We quickly realized how futile this discussion was. When everything is two feet under water, giving priority to the family courts or even the juvenile courts was no longer really an option.
So, twenty years later, how do courts cope with the emergency of COVID-19? Most courthouses were closed, except for emergencies. Family cases might not count as emergencies any time soon. But what if, as happened in the Netherlands, a father cannot exercise his visiting rights because of COVID-19? My guess is that resolving this would require a face to face hearing with both parents. Besides, courts are needed as a check on governments’ use of their emergency powers, too.
Courts are turning to information technology to keep their business open. Staff and judges may be able to work from home. Some courts allow filing documents by (more or less secure) email to keep contaminated paper out of the courts. Various videoconferencing tools are in use to for hearings when necessary. Courts find them surprisingly easy to use. The hardest problem to solve is public scrutiny. Both the Federal courts in the US and the Dutch courts are allowing repeat users, such as the press, to follow hearings by video. The Dutch Bar Association urged the judiciary to open up more possibilities for work to continue. Online tools are becoming the rule, and the case judges have discretion to order face to face hearings where absolutely necessary. A second category of (somewhat less) urgent cases has been identified.