Saturday, March 14, 2020

Let's talk about what the courthouse shutdown does... and doesn't do... and why we're doing this

If Mr. Google has landed you on this post, and you're looking for information about Cook County judicial elections, click here to be redirected. G-d knows, we can't let anything divert us from the elections... not for long, anyway... and I'll get back to work on the election myself... after this post.

Like a lot of you, I'm sure, I've been deeply troubled by the seeming disconnect between the Covid-19 "crisis" and the draconian measures that have been imposed to halt its spread. Cancelling the NCAA basketball tournaments? March Madness, indeed! Travel suspended, businesses instructing employees to work from home, schools closing one by one. Yesterday, all the Catholic schools in the Archdiocese closed, the public celebration of Mass was ordered suspended, and, by evening, Gov. Pritzker closed the public schools statewide. Major League Baseball has been suspended!

So it's not as if an order throttling back activities in the Circuit Court of Cook County stands out as any way inconsistent with the popular trend. (If you haven't read the order yet, click here.)

Still... many are, to put it charitably, skeptical that these extreme measures are necessary. Thus, in my comment queue last evening (from Anonymous, of course):
Evans just shut down court operations for an entire month. This is what happens when your judiciary is composed of a bunch of former government hack lawyers or low end insurance defense bottom feeders.
If the "crisis" is overblown, America is committing economic suicide, state by state, industry by industry. A record bull market has turned into an increasingly grizzly bear. And, if you watch the news, how can you help thinking our leaders have lost their minds? All this disruption for -- at last report -- 46 cases in Illinois?

So I asked a doctor I know for help: Why is this Covid-19 virus such a big deal? People die from seasonal flu every year; is this new disease that much worse? Here is her reply:
It's 20 times as likely to be fatal. But the disaster is occurring because 20% of those who are able to survive still need inpatient medical care, often on a ventilator. That's unheard of even in a bad flu year. How many people do you know who have been hospitalized with flu, let alone on a ventilator? Not 20% of them, for sure.

Also, among those who survive, many will have permanently impaired lung function. The Hong Kong flu of 1968 left a few people respiratory cripples, but if you look at the number of new infections vs. people who are counted as recovered in Hubei province, for such a high percentage to still be sick this far out -- they may be young, but they will never feel like it again.

Also, flu hits you like a ton of bricks. It may kill you, but you're home in bed from the first few hours you're sick. These folks are walking around shedding virus for days before they realize they've got something more than seasonal allergies going on.
So this really is a big deal.

Therefore, let's look at what the court shutdown order does... and doesn't do... to further the goal of social distancing (necessary to slow the spread of this dangerous contagion).

Another anonymous commenter in the queue this morning cautioned that Judge Evans' order "does little to decrease the number of people coming to court on the criminal side other than eliminating jurors." The commenter stated:
According to Evans’ plan, all in-custody defendants still have to be transported to court since the jail doesn’t know which defendants are scheduled for arraignment, may want to plea, or have a bond hearing. The sheriffs have to be fully staffed for the 30 days to deal with the in-custody defendants coming to court. Since the same amount of cases will be on the call every day, court clerks have to be in court updating every case as well as the court reporter. Maybe some defense attorneys will call the State to get dates but there still has to be an ASA and defense attorneys in court.

Not only that, the new order does not limit in anyway family members or the general public from coming to court....
I don't practice in the criminal courts, so I can't say for certain, but these seem to be reasonable concerns. The Chief Judge's press release does advise persons who have recently been to certain countries, or in contact with persons who have been to those countries, or who feel ill, not to come to court -- but medical personnel will not be administering physicals at the metal detectors.

I do practice in the civil courts -- so I couldn't help but notice this little nugget at the end of ¶9 of the Administrative Order: "Discovery in civil matters will continue as scheduled."

This undermines the public health goal.

Schools are closed -- so when we insist that depositions go ahead, we are forcing men and women to make child care arrangements that may not be so easily arranged. Children don't seem to suffer much from the Covid-19 virus, but they are carriers. Sending the kids to Grandma's house may be dangerous for Grandma.

Maybe it's a good time to catch up on document review... that's a solitary activity that can be done anywhere... but a blanket statement that discovery will continue is not helpful. I would hope that judges tasked with implementing this order will keep the public health consequences in mind.

And, I suspect, we need to consider these consequences to our brothers and sisters who are asked to continue practicing in the criminal courts during this not-entire-shutdown, and the support personnel who are asked to keep working in those courts, as well.

1 comment:

Anonymous said...

Jack, please assure your readers that there are many critics of Evan's GAO.It should have been issued at least a week before and wasn't until Friday night. There are so many issues with it but to be fair, he has to satisfy too many stakeholders, , ie. PD, ASA, clerks, and most uncontrollable , Sheriffs. As for civil discovery remains on going, relax. I preside in a Law Div. room and any judge that does not recognize this situation as an Act of God, or war time is delirious and will be reversed by the App. Ct. This is war against a pesky and unknown virus and I believe all reasonable requests or motions to extend anything should be honored. We can't expect folks to appear for depositions, ride mass transit, or appear in court until the courts are capable of providing a safe environment for all. Judge Evans understands this and all judges are hoping to facilitate justice as soon as everyone can return safely... Please remember that each court and our judges are serving as emergency court judges in every division to mitigate any exigent or emergency situation.

My advise to you and yours is to take care of yourselves, your family and your office. Deadlines will clearly be extended.