What to Expect and How to Be Prepared
By Judge JaPaul J. Harris
From the first formal session of the Supreme Court for the territory of Minnesota on January 14, 1850, Minnesota courts have gone through the establishment of the state, the Civil War and Reconstruction, multiple world wars, the Industrial Revolution, Great Depression, internet age, and many other significant events. Through each of these events one thing remained constant— legal proceedings were conducted in person. In March 2020, that changed when the COVID-19 pandemic required courts to immediately leave the courthouse building and rely on virtual hearings. COVID-19 significantly impacted how we live and work. It introduced us to masking, social distancing, and Zoom courtrooms. We went from packed courtrooms to packed Zoom “breakout rooms.” We were in quarantine, then out of quarantine, then back into quarantine once again. In the late spring and early summer of 2021, we entered a new phase of the pandemic, the return to in-person contact.
On May 25, 2021, the Minnesota Supreme Court issued Administrative Order 20-8001, outlining the expansion of in-person operations in Minnesota courts.1 Administrative Order 20-8001 outlined a phased return to in-person hearing.2 The order specified that effective June 14, 2021, criminal jury trials, grand jury proceedings, criminal settlement conferences, major criminal matters, juvenile protection hearings, juvenile delinquency trials and contested hearings, and criminal settlement conferences would be held in person.3 The order also indicated that mandatory misdemeanor criminal trials and contested hearings would be in person as of August 2, 2021, and that all other district court hearings would continue remotely, subject to the approval of the chief judge of the district to have an in-person hearing.4 On June 6, 2021, Administrative Order 20-8001 was amended to end the face-covering requirement in court facilities.
In this edition of the Hennepin Lawyer we discuss wellness. How does an article about the return to in-person hearings relate to wellness? Prior to March 2020, we packed courtrooms with little care or awareness about space and public health. In March 2020 that changed as we were told to stay away from these courtrooms and as we became keenly aware of social distancing, masking, hand sanitizer, and plexiglass shields. Now we are going back into the places we were told to stay away from for our safety. In this article, I will discuss the challenges we face as we return to the courtroom and the steps attorneys can take as we move to in-person court appearances.
Adaptability Is the New Normal
The American Psychological Association defines adaptability as “the capacity to make appropriate responses to changed or changing situations; the ability to modify or adjust one’s behavior in meeting different circumstances or different people.”5 Lawyers and judges are creatures of habit, as I’ve discovered over my years of practice. If this year has taught us anything, it is that practices and routines that we assumed were static are, in fact, fluid. Another thing that I’ve learned is that changing routines is difficult. It is an adjustment that takes time and effort. Over the last year, we’ve grown accustomed to getting out of bed, walking over to our computer, turning it on, and instantly being in court. We grew accustomed to spending time at home with our families, not having to dress up, and not having to worry about the commute to work. It is well known that there is sometimes resistance to change. There were growing pains when we transitioned from in-person hearings to virtual hearings, and there will be growing pains again now that we are transitioning back to in-person hearings from virtual hearings. Both the court and the attorney must be adaptable.
"If this year has taught us anything, it is that practices and routines that we assumed were static are, in fact, fluid."
In March 2020 the court and the country came to a halt due to the COVID-19 pandemic. On March 13, 2020, the Minnesota Supreme Court issued Administrative Order 20-8001, imposing limitations on the operations of the Minnesota judicial branch.6 What followed was a summer, fall, and winter of fluctuating COVID-19 infection rates, increasing deaths, uncertainty, and a pause on trials in late November 2020, when the COVID-19 pandemic reached a critical stage. Over this period the Minnesota Supreme Court issued over 18 orders with various changes to accessing the courts and requirements when in the courthouse. Throughout this period courts moved to reopen and then scale back based on rising and falling COVID-19 infection numbers. The changing requirements of the court affected the way attorneys practiced. As the spring came and a vaccine was developed, we moved into a new phase, the return to in-person hearings. While the return to in-person hearings is a welcome sign for many people, it comes with apprehension.
It is natural for people to be concerned about returning to in-person court hearings. First, we will be returning to stressors that we were able to leave behind for a year, such as commuting into downtown and our old work routines. However, an additional layer of stress is associated with becoming acquainted with new practices and procedures, as well as interactions with people who may or may not have a different perspective on the virus and may or may not be fully vaccinated. Allow time for readjusting. It will take some getting used to being in a courtroom with so many different people in the short term. It is critical that attorneys who have been appearing virtually recognize that the courts’ in-person trials went off without a hitch during this past few months. During the pandemic, I had several trials and spoke with many jurors, all of whom felt safe throughout the proceedings. As we adjust to moving back to in person, we must be prepared to adapt further as the Delta variant spreads and we receive new infection numbers. The Supreme Court is also adapting, as it considers which hearings can be continued as virtual hearings. People are sometimes resistant to change. We’ve been isolated for a year, and many of us are afraid of the virus. These concerns are well known and appreciated. However, do your research, ask questions, and be open about your concerns as we return to the courthouse.
Trust the Facts
On December 4, 1770, John Adams rose to deliver his closing argument to a jury in the trial of British soldiers in the Boston Massacre. As he advocated for his clients he said, “[F]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” COVID-19 facts and evidence have been a stubborn thing because we continue to allow our wishes, inclinations, and the dictates of our passions to alter the facts. We need to trust the facts. Given the novel nature of this pandemic, often there were conflicting messages and, at times, outright lies. As we return to in-person hearings, here are the facts:
1. The Court has a plan for the safe return to in-person hearings.Throughout the pandemic and currently, the Court has been looking at the pandemic information and planning for the phased return to in-person hearings. The Court has balanced two equally important interests, protecting public health and constitutional rights. Returning to in-person hearings involves some risk, which will be accompanied by some anxiety.
2. According to the U. S. Centers for Disease Control, all COVID-19 vaccines currently authorized in the United States are effective against COVID-19, including serious outcomes like severe disease, hospitalization, and death.7
3. The CDC reports that COVID-19 vaccines currently authorized in the United States are effective against the Delta variant.8 Vaccination is a critical preventive measure that will aid in the end of the COVID-19 pandemic.
The successful reopening of the courthouse depends on the public’s being immunized. I recognize that the vaccination decision is one that each of us must make with the assistance of our medical provider but make no mistake: the decision affects us all as we return to in-person gatherings. The good news is that 65.3% of Minnesotans are fully vaccinated, with 73.5% of Hennepin County residents being vaccinated.9 As we continue to follow the facts, we will have a safe reopening while addressing the cases before us.
"The successful reopening of the courthouse depends on the public’s being immunized. I recognize that the vaccination decision is one that each of us must make with the assistance of our medical provider but make no mistake: the decision affects us all as we return to in-person gatherings. "
Deal with Mistrust and Safety Concerns
People today are skeptical of the information they are given. As we return to in-person interactions, many questions arise: should I wear a mask or not, what about social distancing, are the people around me vaccinated? Additionally, how will this more contagious Delta variant of COVID-19 affect the courts reopening, are the courts moving ahead just to resolve their backlog, and what steps are the courts taking to protect me?
Everyone has had a traumatic year, and it is understandable that returning to in-person court hearings will cause some anxiety or mistrust. It’s unsettling to think that we might be working closely with people who aren’t following pandemic safety protocols. It’s also difficult when we don’t believe an organization’s commitment to safety.
The Minnesota Supreme Court has thorough COVID-19 safety procedures and each district also has protocols. Review those protocols and inquire of the judge presiding in your case of any procedures that they may employ. Understand the court’s expectations and spell out your expectations. Visit the physical courtroom to get a sense of the layout and the spacing. When addressing your concerns, remember not to be combative, and be clear regarding your safety concerns. The court is acutely aware of the anxiety and concerns about returning to in-person hearings and is willing to collaborate with attorneys to address courtroom safety concerns.
Zoom Courtroom Etiquette Is Not In-Person Courtroom Etiquette
You may have seen the “I’m-not-a-cat” attorney in the Texas Zoom hearing or been in a Zoom hearing where a judge told a person to pull over and park in order to participate or watched as a person participated in a hearing while shopping, resting, or smoking or vaping, or appeared without a shirt or proper clothing. We all have our funny or shocking Zoom courtroom story. (I’m sure you have been in a Zoom hearing where a litigant got caught on a hot microphone saying inappropriate things.)
This behavior could be viewed as disruptive and perhaps contemptuous, but virtual hearings have increased the selective blindness and situational hearing loss in judges. In balancing the administration of justice and the unique pandemic court proceeding, judges needed to pick and choose the battles they were willing to engage in. While courts attempted to make the requirements and expectations for virtual hearings the same as in-person hearings, they are not the same. Courts gave more leeway in virtual hearings because we were all adjusting to the new normal. To be clear, judges still made it a priority for all parties to respect, observe, and preserve the dignity of the legal proceedings. There is something about being in person that increases the ability of the court to control the action in the courtroom. Over the past number of years, our society has become considerably less formal and, in many instances, considerably less polite. Virtual hearings gave judges an ability to allow some lack of formality to effectively move cases forward. However, your conduct in the Zoom courtroom should not follow you into the in-person courtroom. Attorneys should brush up on the rules of court decorum. You should know and observe basic courtroom decorum. This is more than being polite; it is about ensuring that the court hearing is orderly and fair. Research and understand the courtroom requirements of the judge you are appearing before. Judges have different preferences for courtroom behavior, and they will gladly share those with you. While judges will continue to have selective blindness and situational hearing loss, there will be a more stringent requirement to adhere to the rules of courtroom decorum. Of course, most lawyers are professional and courteous, even when zealously representing their clients, but the relaxed atmosphere of the virtual courtroom is not the same as the atmosphere of the in-person courtroom, so act accordingly.
Take Care of Yourself
This is the Hennepin Lawyer’s wellness edition, and we all must be mindful of our mental health during this pandemic. Attorneys’ mental health has long been a source of concern, but the pandemic has elevated the urgency of those concerns. As we return to in-person court it will affect attorneys’ thought processes, how they organize their lives, and how they handle the adjustment to being in the presence of unfamiliar people. There will be social anxiety because we will be going from isolation to full interaction. The resumption of in-person hearings will surely enhance pandemic-related stress and anxiety. It is critical for attorneys to address this issue because it is a very real concern. Addressing your needs and concerns is critical for your personal health. Find the places to get guidance and support, like Lawyers Concerned for Lawyers.10
Earlier in the article, I stated that the court must strike a balance between two equally important interests: public health and constitutional rights. However, another factor to consider is our profession’s mental health and well-being. Lawyers must consider how they intend to alleviate their concerns, anxieties, and hesitation about returning to in-person hearings. Mental distress and mental health conditions impair your ability to do your job. The everyday stresses of life and stress associated with fears of you or your family being exposed to or infected by COVID-19 only exacerbate the problem. My final piece of advice as we start to see one another in person is take care of yourself.
Judge JaPaul J. Harris
Judge JaPaul J. Harris was appointed to the Second Judicial District by Gov. Mark Dayton in June 2018. He previously served as a judicial referee in Hennepin County from 2012 to 2018. Judge Harris serves as a member of the Minnesota Supreme Court Committee for Equality and Justice, where he serves as the chair of the education committee. In addition to his bar activity, Harris coaches youth sports at Jimmy Lee recreation center in Saint Paul.
Notes
1 See Continuing Operations of the Minnesota Judicial Branch Under Emergency Executive Order No. 20-33, No. ADM20-8001 (Minn. filed May 15, 2020).
2 Id.
3 Id.
4 Id.
5 Andrew J. Martin MAPS MCEDP, “Adaptability: A Key Capacity Whose Time Has Come,” InPsych Vol. 39, issue 6 (December 2017). Available at https://www.psychology.org.au/for-members/publications/inpsych/2017/dec/Adaptability-A-key-capacity-whose-time-has-come (last visited July 28, 2021).
6 See Continuing Operations of the Minnesota Judicial Branch Under Emergency Executive Order No. 20-33, No. ADM20-8001 (Minn. filed May 15, 2020).
7 See Center for Disease Control and Prevention: Vaccines & Immunizations https://www.cdc.gov/vaccines/covid-19/effectiveness-research/protocols.html (last visited July 27, 2021).
8 Id.
9 See Minnesota Department of Health COVID-19 vaccine database https://mn.gov/covid19/vaccine/data/index.jsp (last visited July 27, 2021).
10 Lawyers Concerned for Lawyers: https://www.mnlcl.org. For confidential assistance call (651) 646-5590 or 1-866-525-6466.