Covidtopia, the Courts and Pro Se Litigants

           Here’s a wrinkle I didn’t foresee in Covidtopia, our brave new world bounded by the pandemic.

            A colleague of mine appeared in court in central Connecticut this morning. This in and of itself is remarkable. There are no jury trials taking place, and there have not been since March. There’s talk of resuming trials in November, even as announcements filter in from around the state of new Covid-19 hotspots in Danbury, Hartford and New London – seats of court. There’s been but one federal civil jury trial in Connecticut since March.

            Almost all court-related work takes place remotely these days, a vast improvement over the days of endless driving and waiting around in a court lobby, all for the sake of a brief conversation with a judge.

            But sometimes parties need to show up in court. This is the case in initial appearance in domestic violence cases, or cases seeking civil restraining orders. In such cases, a person barred from contacting another needs to be served with papers notifying them of the restrictions on their liberty.

            These folks are typically summoned to court by way of a summons or order to appear. Some folks may come to court in response to a subpoena.

            Just how healthy are the people we are ordering to appear in court?

            This morning in a small courthouse in central Connecticut, litigants and their lawyers were summoned to court to engage in presumably necessary work. They waited in the tiny lobby, and gathered in even smaller courtrooms, waiting to plead their cases. Most, but not all, tried to socially distance themselves from one another.

            All at once, a woman announced: “I have Covid.”

            That caught everyone’s attention.

            A marshal whisked her from the courtroom.

            Something like pandemonium erupted as folks caught their bearings. How close had they stood to the woman? Had she coughed? Whom had she touched?

            My colleague brought his concerns to the attention of the presiding judge.  The judge’s response approached weary indifference. What, exactly, did he expect the judge to do? My colleague was too polite to state the obvious: assure public safety in this public place.

            Moments later, as my colleague left court, he saw the woman who had announced her infection standing outside the courthouse.

            “I was afraid that if I didn’t come to court I’d be arrested,” she said. “I can’t afford to miss work. I didn’t want a warrant for my arrest.”

            My colleague was angry at her.

            “So you came to court to risk infecting everyone else?”

            Such are the trade-offs we are all apparently called upon to make in the weeks and months to come. We can minimize, but not eliminate, the risk of infection, or so it seems.

            But I confess that this confrontation took me by surprise.

            Many of the folks who are summoned to court are not represented by counsel. In domestic violence cases, the parties are often struggling with the trauma of upended home lives. Some have serious psychiatric and/or substance abuse problems. These aren’t the sorts of folks most of us would turn to make important public health decisions for us.

            What is a self-represented party to do when summoned to court if they know, or suspect, they are contagious? Do they simply fail to appear, and run the risk of a bench warrant? How to distinguish the genuinely concerned from the fakers and malingerers?

            Lawyers know to do such things as file a motion to quash a subpoena or request a continuance. But pro se parties rarely have such sophistication.

            My colleague is furious at court administrators just now. The problem seems obvious. The solution less so. Did no one think this through? Does my colleague now quarantine for two weeks?

            I don’t have answers. Candidly, as much as I have thought about the courts and how they will cope in Covidtopia, this problem slipped right past me.

            I suspect it slipped past the good folks running the Judicial Branch, too.


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