How Has COVID-19 Affected Family Court?

lawyer at desk working on laptop with scales of justice out of focus in front

We all remember where we were that day in March 2020 when COVID stormed into our lives and changed so much. As I stand in a local auto parts store today, I can still see the decals on the floor spaced six feet apart, directing me where to stand. It brings back memories of standing in line outside one winter, waiting to get into a grocery store that was allowed to operate at only 25% capacity. In the two-plus years since, we have just begun to emerge from the grip of what seemed like the plot of a science fiction movie.

Now (Spring of 2022), many day-to-day experiences in New Mexico have returned to normal. We can shop, dine, gather at brewpubs, go to the movies, attend concerts and events, and go to church pretty much as we could before. There are virtually no mask mandates, and reading what is currently at the top of the news, it really seems that the popular culture has moved on from COVID-19.

The reader will find past COVID-19 blogs on this website, written and posted as developments unfolded over the past two years. They explain the changes in the courts and how the pandemic affected hearings and cases. During that time, a great many professions from teaching to healthcare were forced to adapt very quickly, finding safe practices in the face of a global health crisis. Many professionals began working from home.

At the family courts where we practice, there was a quick, definitive response around March 15, 2020: “There will be no hearings. Any hearing you currently have scheduled is vacated, and you will be contacted when we figure out how to proceed.” To their credit, the courts did a fine job of adapting. Within a couple of weeks, hearings were being re-set via Zoom, Google Meet, and even by telephone. We initially anticipated months-long delays in moving cases forward, but it was more like several weeks.

Law firms are identified as essential businesses. In maintaining our operations during COVID-19, our firm instituted several internal policies, including working from home. We staggered the staff at our office to limit our contact. The office was at only 25% capacity on any given day. The IT firm we work with was also excellent in helping us transition to work-from-home capabilities in a very short time.

For the largest part of the crisis, I’d say we were able to seamlessly transition and maintain our high standards of service to our clients and the profession. It seems that most family law firms and courts we work with were able to continue practicing as well. The truth is that our firm has grown since the pandemic began. We already had a plan for growth in place, and COVID-19 does not seem to have hurt that plan.

As of today, most rural district courts in New Mexico have resumed in-person hearings, albeit with some protocols. The experience for litigants has largely resumed in the form and process that it did before COVID-19, and that experience has developed over a substantial time period.

With very few exceptions, the family courts in Albuquerque have not resumed in-person hearings. Therefore, this blog intends to address a topic I have been avoiding, hoping that it would become irrelevant. Unfortunately, it hasn’t. That topic is how COVID-19 has changed the courtroom experience for our clients, particularly in Albuquerque, and how that change affects outcomes in disputes.

Before COVID-19, our client’s typical day in an Albuquerque court went like this:

  • Depending on the length of the hearing, you would need to take at least a half-day off work.
  • You needed to dress nicely; go to a downtown courthouse; find parking (Western Americans have a strong aversion to locating downtown parking); work your way into the building through security; take your cell phone back to the car because you forget they are not allowed in the courthouse; and try to find your lawyer or the correct courtroom.
  • All the while, the floor is bustling with activity and energy. Most margins, doorways, and out-of-the-way areas are full of lawyers negotiating settlements moments before the case is called. (There have been plenty of times where my case was called, and I told the bailiff, “Just five more minutes. We almost have an agreement.”) After all this, we reach an agreement, a partial agreement, or maybe no agreement at all.
  • Then we go forward with the hearing in person. Here, you must sit alone with your lawyer in front of a little wall, and any supporters who came with you must sit in the back, away from you.
  • At the end of the hearing, the judge tells you what you’re going to do and requires everyone to remain at the courthouse while the lawyers draft the order from the hearing. Then everyone waits for the judge to sign it.

The whole experience makes for a long, wearying day for you. It’s generally stressful, grueling, and unpleasant. This unpleasantness has time and again proven to be a powerful incentive for parties to settle disputes out of court. Our experience is that negotiated settlements are usually preferable to the anxiety, expense, and mixed results associated with trying issues before the court.

The typical court day is now very different. It is virtual, and parties can appear at a quick hearing by calling in on their lunch break. Their attorney may do the same thing from the comfort of wherever they happen to be. For instance, I had a colleague appear at a recent hearing while driving to drop off his daughter somewhere on the East Coast. We could hear his blinker and the traffic whizzing by. He seems to have represented his client well enough I suppose, at least to the extent that we all heard it and no one mentioned it. In another recent virtual hearing, I am certain that I heard someone form the court staff say the following, “Just a minute. Mommy is working.”

Substantial evidentiary hearings and full trials are quite different as well, but they are also quite rare. I’d venture that more than 80% of our Albuquerque hearings are conducted by telephone. Video proceedings are conducted via Google Meet or Zoom. Instead of going to the courthouse, clients now come to my office, conveniently located right off the interstate. There’s plenty of parking, a nice atmosphere, and no security checkpoint. Everyone is welcome to have their cell phone, and stepping out for a cigarette is no problem. We usually order a lunch worthy of the occasion as well.

The new process has benefits for both clients and attorneys. I no longer need to carry boxes of exhibits into the courthouse or coordinate witness appearances like I did before. I also get to conduct the hearing or trial from the comfort and convenience of my own desk chair. I’m in my office with my computer in front of me and the full support of our excellent staff only steps away. Honestly, I wear a suit only from the waist up now. I have had clients appear for telephone hearings in their pajamas, stretched out on my couch. This is hardly the daunting prospect it was in February 2020, and described this way, it’s difficult to see the downside of a virtual hearing. These days, the court day experience is super convenient and pretty chill.

However, removing the unpleasantness of the courtroom experience has made parties less willing to settle out of court. This virtually ensures protracted litigation and all the frustrating delays that come with it, including mixed results and further anxiety. Ultimately, this convenience leads to a lack of efficiency and worse, bad outcomes.

There is no end in sight for the virtual hearings in Albuquerque. Given today’s technology, I believe I could manage to work for weeks at a time from any KOA campground with Wi-Fi. For the world, I would love to say that this way is better because of the personal freedom it affords, but having practiced in both venues, I must admit that virtual hearings have been quite a bit worse for my clients.

I must trust that the decision-makers for Second Judicial District Court in New Mexico have their reasons for doing what they do, and they believe they are honoring the trust of those who authorized them to do so. However, seeing how the rest of the nation’s activities have resumed without the promised destruction, it is hard to appreciate any unique risk associated with resuming in-person hearings compared to other public interactions. The court really isn’t offering any explanation for continuing this way.

Understand that if you are considering initiating family court proceedings, it is highly likely that you must prove yourself in court. It is just as important as ever to make sure you have the best counsel and representation as early as possible to obtain the best outcome.

Our excellent attorneys are standing by, ready to help identify your goals and plan to reach them. Call us at (505) 544-5126 for a consultation, or contact us online.

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