Two common questions I hear from potential clients, as well as the general public, are (1) are the courts open and (2) can people even file new matters (divorce, enforcement, modification, etc.) Some express shock when then learn that the Courts never actually closed – well sort of.
In March and early April, there was, let’s say, a hiccup of sorts as both the courts, attorneys and litigants got used to working remotely and dealing with court business remotely. The Court buildings were basically closed to the public and judges and court staff had only limited access (some said once a week to pick up papers). At some point, we would hear, anecdotally of some limited people returning the the courts. Accordingly, many events that had been scheduled were delayed, some for a few weeks, others significantly longer. At first, courts were supposed to have drop boxes for filing, but some counties didn’t have them and we were told to mail in filings. Once they arrived at the court, they would sit for a few days until they were deemed safe to open. Also, faxes were pointless because it could take days/weeks until anyone saw a fax.
That said, it didn’t take long for new systems and technologies to be rolled out so that we could get back to some semblance of business as usual. While most of the other parts of the the court, including the Appellate Division, use an e-filing system called E-Courts which is attached to the Judiciary web site, most of the family part did not. We still don’t. But, we were given access to a system called JEDS that was used for other things so that Complaints, Motions, even letters to the Court can be filed and/or transmitted to the judges. JEDS, which continues to improve, has been a real game changes in terms of both efficiency, cost and getting documents into a judge’s hand much sooner than in the past.
In addition, even though most court staff are working remotely, either the calls ring to wherever they are and/or they return calls promptly – perhaps even more promptly than before. Further, pre-COVID, emails directly with court staff (secretaries and law clerks), was on a judge by judge basis, and I would say that for many judges, you had to call, fax, mail or hand deliver letters. Post-COVID, most if not all email addresses are available.
Pre-Covid, you would usually have to appear in court for settled/uncontested divorce cases to put through the divorce. I say usually because there were are few counties that allowed for divorce by written submission. In at least one of those counties, they would only do that if the defendant didn’t file an answer and it was a default judgment, meaning, if the matter was originally litigated at any level and then settled, you had to come to court to put through the divorce. Post-Covid, any settled case can be put through via written submission. In the first one that I did, I literally had the signed Judgment of Divorce emailed back to me within the hour. In addition, Judges are handling uncontested hearings via Zoom, where the parties can testify about their causes of action and assent to the divorce agreement, and the court places the findings on the record then emails the Judgment of Divorce. The only minor delay is getting the gold sealed/certified copy of the Judgment because, typically, those are only mailed out on the one day a week that the Judges and their staff are typically in the Court house.
Instead of going to court for Case Management and other conferences, they are now done via Zoom, Teams or via telephone. This eliminates the costs of travel time and a lot of the hurry up and wait that occurred in the past. Put another way, in the past, a 15 minute court appearance, including travel and wait time , could total several hours that were billed to a client. Now it is often much more economical. That does not mean that there isn’t virtual hurry up and wait, as I have languished in Zoom waiting rooms for hours, but generally, things are specifically scheduled for a block of time now and the wait times are more infrequent.
Early Settlement Panels are also being done remotely via Zoom and because each one is scheduled for a time slot, the travel and wait times are also eliminated.
One of the things that has relatively stayed on track from the beginning of the pandemic has been the hearing of motions. I have argued motions via phone, Zoom and Teams and quite frankly, I am not sure that I don’t prefer it. When via Zoom or Teams, sadly these are some of the few times that I have had to put a suit on since March, but I have drawn the line at shoes and socks since no one sees your feet. I do however, wear pants, especially after seeing many Zoom “fails” on social media.
As to trials, the Court system is in their Phase 2 and supposedly, the court house can be occupied by 10% of the judges on any day. Originally, we were told that cases that were complicated and that had substantial exhibits would not be done via Zoom. That seems to have gone out the window pretty quickly and essentially, most trials are going to be done via Zoom. We have quickly learned how to best prepare how to present/share exhibits via Zoom. The only case that I had where the Judge wanted to and will be scheduling an in person trial is one that commenced in 2017 and had been tried over 59 days between 2017 and the summer of 2019. The reason that that case won’t be via Zoom is that there are probably close to 700 exhibits between the two sides and it would be impractical for the judge, and quite frankly the rest of us, to bring the boxes and boxes of binders home.
Now, for the most part, trials were the big casualty of COVID and weren’t being held, until recently. However, in late July, the judges were told that trials had to get going again and all of a sudden, trial dates were being given out out of the blue. Given the 10% rule and the need to accommodate jury trials in the criminal and civil part, and other matters that require in person trials/court appearances, I would imagine that most divorce, custody and post-judgment trials and plenary hearings will be done remotely until further notice. This may also make it easier to hear from witnesses that are out of the jurisdiction, provided that they are willing to appear.
Even Domestic Violence trials are being done remotely, though it is my understanding that defendants can request in person Final Restraining Order hearings. That said, that may delay the actual hearing.
The other thing that is delaying some of these virtual trials is that each county has a limited number of Zoom licenses/Zoom virtual courtrooms that they share among the judges in the Vicinage. For one trial which will be continuing next week, the Judge has only had a few hours of Zoom time on the morning of the three trial dates.
Outside of court, we have met with many new clients for consultations via video conference or phone. I can’t comment them from the client perspective, but from my perspective, they have been seamless and you forget that you are not in the same room.
Similarly, we have participated in many mediations remotely via Zoom. By now, most mediators are adept at Zoom and can use the breakout rooms, moving people in and out so that you have the same privacy that you would have as if in an in person mediation.
We are even taking depositions remotely, which, after an initial learning curve, seems to be going reasonably well.
Though we have not done one, you can do arbitration remotely, essentially in the same way that you would do a trial remotely.
Finally, during the Spring, I mentioned in a prior blog post that after the end of quarantine, China saw an uptick in divorce filings. anecdotally, that seems to be happening in New Jersey, as well – getting back to the answer to the original question – yes the courts are open. While I hate the phrase, “the new normal”, I will say that the family law bench and bar have adapted to dealing with family law cases, post-COVID. Obviously, COVID accelerated by several years the courts and many attorneys use of technology. While eventually, I would expect that trials and other court appearances may return to normal, COVID has probably exposed certain systemic inefficiencies that may be forever corrected using technology. In any event, we remain open for business as usual – or at least the new “usual.”
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.