Access to Justice in Family Law Amidst a Pandemic
What Worked, What Didn’t, and What May be Here to Stay
The COVID-19 pandemic has shed light on institutions that were badly in need of modernization. The necessity of social distancing to avoid community transmission forced many industries to quickly and efficiently adapt. In certain industries, namely the tech industry, we have already seen a reimagination of the workplace with remote work opportunities available to thousands of workers. But the legal system has always been somewhat behind the curve in keeping up with technology, even in the Bay Area, where the judicial branches ironically find themselves adjudicating the rights and obligations of these titans of innovation, while simultaneously requiring paper filings and in-person hearings. But in 2020, the judicial branch was forced to adapt.
Governor Newsom’s state of emergency announcement on March 16, 2020 closed courthouses. Presiding judges in each county quickly adopted emergency rules, and swiftly implemented their own plans to ensure that the citizens were not denied their access to the judicial branch. In Contra Costa County, emergency rules were passed, including provisions that all family law short-cause matters, including requests for order (RFOs), status conferences, and settlement conferences would be held via Zoom As of the date of writing this article, Contra Costa judges continue to hear family law matters via Zoom, including long causes and trials, with the exception of long-cause domestic violence restraining order hearings.
Virtual court presents difficulties, such as tenuous internet connections, user errors resulting in grotesque echo effects, court reporters struggling to hear what is being said over the background noise of kids and pets, or the misuse of Zoom filters (“I am not a cat.”) The sometimes annoying, often hilarious mishaps of virtual court have certainly created some challenges, but have also created many unanticipated benefits for attorneys and litigants. Attorneys appearing in virtual hearings can do so between other tasks, and can also do billable work on other matters while they are waiting for their case to be called. Typical charges for a court appearance would not include the added cost of travel time, which in many instances (depending on the location of the attorney’s office) saves at least an hour of attorney time, leading to happier clients with lower bills. With over a year’s worth of data in hand, what, if any aspect of these changes should remain? What has worked, and what should we happily discard upon reaching that illustrious herd immunity?
I interviewed two of Contra Costa’s family law bench officers, Judge Danielle Douglas, and Commissioner Christine Donovan. The judges recalled the impact of Zoom hearings and court closures. “We were provided with guidelines from the presiding judge, but each division was given a lot of latitude to come up with its own rules and procedures,” said Judge Douglas. “The family law division drafted its own emergency rules, which was a collaboration with the bench officers, the Family Law facilitators, the clerks, Family Court Services, and the local bar. Our approach to drafting the rules was to see what worked and what didn’t.”
As a result, the emergency rules were regularly amended to accommodate changes in the pandemic. The operative emergency rules effective March 1, 2021 are the 6th iteration. “We got a lot of feedback from attorneys and litigants, everything from the difficulty of finding the correct Zoom link to the filing drop box being too small,” says Judge Douglas. When questioned about how feedback was received from self-represented litigants who may not understand how to communicate their concerns through the correct channels, pro se litigants provided feedback through the facilitators or the clerks, and on occasion during the hearings – and our judges listened and adapted.
Our current family law bench officers understand that access to justice is an ongoing concern in Contra Costa and the state of California. Pre-pandemic, Judge Douglas highlights the addition of the children’s waiting room at the family court, which helps many lower-income litigants. Once the pandemic hit, the court assessed how to serve the community and the resources it could offer to the public. Judge Douglas reports that initially, the principal concern about Zoom hearings was access to the necessary technology. “We considered setting up satellite ‘Zoom rooms’ where litigants could come to a facility and use court-provided devices to log onto their Zoom hearings, and could do so socially distanced.” But this concern was quickly curtailed, as it was soon evident that litigants largely owned the necessary devices to call into their hearings. “Most of the litigants have a device that enables them to do the video feature of Zoom, and if they don’t, they can still call into their hearing and appear without video.”
An unexpected consequence of Zoom hearings was a dramatic increase in litigant’s “show up” rate in family court. Commissioner Donovan commented that calendar adjustments became necessary due to the amount of litigants who were consistently showing up to their hearings. “Before the pandemic, we would typically have 17 matters scheduled for the morning calendar, and on average 12-13 matters would have one or both parties present, and could go forward,” says Commissioner Donovan. Since the implementation of Zoom hearings, her department can only support 12 matters per session, since “most of those matters will have parties present, with maybe one or two no-shows on average.” Similarly, Judge Douglas estimates that pre-pandemic, she typically had a 20-30 percent “no-show” rate. Now, she estimates that 95 percent of self-represented litigants appear at their hearings.
Both judges reported that accessibility of Zoom decreased “no-shows” in court. “In DCSS cases in particular, there will be a lot of out-of-state litigants who could not appear in person to these hearings, but that hurdle has been removed with Zoom,” says Commissioner Donovan. Pre-pandemic, remote appearance required the utilization of third-party services, such as CourtCall, a service heavily utilized in the civil matters, but less so in family law. “The beauty of Zoom is that it’s free, and it’s user-friendly,” says Judge Douglas.
The practical limitations of coming to court are reduced by the implementation of Zoom hearings. “Litigants do not need to secure childcare, transportation, parking and a day off work in order to come to their hearing,” Commissioner Donovan says. “I have seen litigants lock themselves in their bathroom for their hearings as a practical way of ensuring their children are out of earshot, since the bathroom is where a parent can expect to have some privacy,” comments Donovan. Judge Douglas observes that litigants parked in their cars during hearings, which ensure outside noise does not disturb their hearing. “Coming to court is important, because it gives the litigants the opportunity to tell their side of the story and obtain orders that are right,” says Commissioner Donovan. “Zoom hearings are certainly not a panacea, but they provide an important tool in increasing participation in court proceedings.”
The Contra Costa Family Law Facilitator provided instrumental assistance to self-represented litigants in preparing their paperwork and understanding the legal process. “The biggest hurdle for pro pers in family law is the technicalities required for someone to move their case forward,” comments Judge Douglas. The facilitator’s office has historically helped these individuals; they adapted to social distancing by offering virtual appointments, which led to a greater number of litigants receiving services. “The facilitators used to schedule 15-20 minute appointments, three days per week, and assist an average of 15-20 people in a day,” says Judge Douglas. “Now, the facilitators offer a live chat feature through the court website, and between January and April 2021, they have assisted over 3,000 litigants.”
Judge Douglas recognizes challenges faced by court reporters having to create an accurate record during Zoom hearings, particularly due to jumbled audio. Commissioner Donovan reflects upon the difficulties for courtroom interpreters. “Zoom provides a way of doing simultaneous interpretation. When it works, it’s great, but it takes up valuable court time to set everything up and make sure it’s working.” There are also the challenges faced by the bench officers. The judges do not have the benefit of having their bailiffs on Zoom. “I am essentially my own bailiff,” comments Douglas. “If there is an unruly litigant, I have to remove them from the Zoom room, where I used to rely on a bailiff to do so.” Only recently did the department clerks receive cameras for their computers, thus enabling them to take roll before the bench officer appears in court. There are also significant delays in Family Court Services appointments, due largely to FCS being short staffed. But Judge Douglas also notes that the significantly reduced no-show rate for FCS appointments has led to the backlog. “Pre-pandemic, we would get daily notifications from FCS of the available appointments due to no-shows. Now, it’s so much rarer for these openings,” says Douglas.
Despite the challenges of remote hearings, some pandemic era accommodations may remain in place. “Short-cause hearings such as motions and status conferences may continue via Zoom,” Judge Douglas says, “Trials and long causes with witnesses will eventually be in person.” Zoom has launched a “government platform” with heightened security features, and the Judicial Council of California offered to help cover the cost for counties that choose to adopt it; Contra Costa Superior Court accepted this opportunity. Judge Douglas estimates a savings up to 60 percent from the court’s current technology expenditures. The judge referenced Senate Bill 241, which would amend Code of Civil Procedure §367.8, enabling witnesses to appear electronically by stipulation. “The pandemic has forced the judicial branch to play catch-up with technology,” she says.
The Judges Request Help from Attorneys
Bench officers believed attorneys could do more to serve our community and assist the court in providing access to justice. Commissioner Donovan “appreciates the tremendous amount of talent in our bar,” and asks more attorneys to consider offering “unbundled services,” such as limited scope appointments to assist litigants with lower means in need of an attorney for a single hearing. Judge Douglas implores attorneys to assist the court in moving swiftly by practicing remote hearings with clients. “Attorneys need to instruct their clients about how Zoom works. So many technical issues could be avoided if the attorney and client had done a practice run!” she observes.
During the pandemic, many industries are assessing the necessity of in-person interactions. The judicial branch balanced its citizens’ rights to due process of law and adhering to emergency safety measures. As the prospect of “returning to normal” seems in reach, technology increased access to justice, notably in family law. Hopefully, these positive changes will remain in place, and the trend of embracing modernization will to advance our courts and access to justice.
Contra Costa County Emergency Local Rules, Family Law, 1-10, inclusive, passed April 6, 2020.