TALP 4 | COVID-19 Pandemic

 

The COVID-19 pandemic has wreaked havoc on our institutions on a systemic level, but technology has helped bridge gaps so business and life can go on. In this episode, Todd Smith and Jody Sanders interview Blake Hawthorne, the Texas Supreme Court Clerk, about the Court’s response to the COVID-19 pandemic. Blake discusses the emergency orders the Court has issued, access to courts, and tips for remote law practice in this “new normal,” so you definitely ought to listen to what he has to say!

Listen to the podcast here:

How SCOTX Is Addressing the Coronavirus Pandemic | Blake Hawthorne

Like many of you, we’re at home today, following the latest developments on the coronavirus front and trying to adjust to this new normal for a while.

To help our listeners on that front, we welcome back one of our original guests and the person who helped push us to put this podcast together. We have Blake Hawthorne, the Texas Supreme Court Clerk. Welcome back, Blake.

Thanks. It’s nice to be back.  We are definitely practicing our social distancing on this podcast right now.

Absolutely. We knew we wanted to have you back, Blake, but we didn’t expect it to be so soon. These recent developments brought some things to the forefront. It would be useful for Texas lawyers to hear from you on things like how the court is dealing with this coronavirus situation, some of the emergency orders that have been released, where we go from here, and where we anticipate going. To kick it off, when we were there in the Supreme Court courtroom a few weeks ago, Justice Boyd talked about disaster preparedness and his role in leading the organized charge on that. We didn’t appreciate how quickly things would escalate. Since then, the Court has taken some unprecedented steps at this point. Can you give us an overview?

When you all were here in the courtroom, it was a week before my office practiced everyone working from home because we foresaw that something like this could be coming down the road. Right before Justice Boyd talked to you, we met in conference, and we had talked as a group about what we needed to do to start preparing our own staff. I had already planned to, as an experiment, since I’m the person here at the Court that’s responsible for the continuity of operations planning, our COOP plan as it’s known in the business. I wanted to talk to the Court about what we were doing to get prepared in case something like this happened. The day before the Austin Independent School District shut down, we had everyone in the clerk’s office work from home, myself included. That day, we worked through issues with our phone system, VPN, and other things like that. When we finally did send people to work from home, we were well-prepared here in the clerk’s office. I don’t think we’ve missed a beat in terms of answering phone calls and processing filings.

From the outside world, it looks like business as usual. Obviously, here at the Court, things look very different. It’s just one other staff and me here in the clerk’s office. We’re in separate offices, and we’re keeping our distance from each other and yelling at each other out of the door sometimes. We’re still picking up the mail and processing that. It’s quiet around here. The parking garage is pretty much empty. I know it’s the same situation at other appellate courts around the state. I know, for example, Michael Cruz, the clerk of the Fourth Court of Appeals in San Antonio, said that they had mandated there that everyone work from home about a week ago. It was just him and his chief deputy clerk there in the clerk’s office.

The Clerk is responsible for the continuity of operation at the Supreme Court. Click To Tweet

Something similar just happened in Dallas County, where they issued a shelter-in-place order. I was talking to the clerk of the county court there, John Warren, about what’s going on with his staff and it’s similar to what we’re doing here. They’ve got a just couple of people that are running the office, dealing with anything that might need to be dealt with. Everyone else is working remotely. Electronic filing has saved our bacon here and kept the courts moving. If we didn’t have that, we would be really struggling right now.

How did the justices change the way that they operate through this time? 

They’re working remotely, and their staff is too. For them, that may have been the biggest change. Normally, they have most of their staff in the office on a daily basis. Some of them don’t live in Austin, and so they may be more accustomed to working from home. In terms of how they work, it may not be that big of a change for them. Certainly, for their staff, it’s a big change. The law clerks were sending around instructions to each other about how to use their OneDrive, which most of them probably hadn’t used much until this happened. In some courts what we’re seeing is things like OneDrive and Zoom teleconferencing are things that have been accelerated.

Going back to Michael Cruz, he used to be a deputy clerk here so I’m in contact with him. He talked about how he had a five-year plan for getting some technology implemented in the Fourth Court of Appeals and that this has accelerated everything. They’re rolling out OneDrive and Microsoft Teams and people are learning things that maybe they were a little resistant to before, they weren’t excited about using, and now they’re finding that they need to use it. It’s a necessity for them.

It sounds like there are going to be some adjustments or have been some adjustments to the basic workflow, but all the infrastructure was already there. What about the TAMES system, are the judges able to access that and continue the normal process there? 

They can and they always have been able to through VPN. They complain that it’s a little bit slow sometimes, using VPN and using our case management system, which is TAMES, a homegrown system hosted on a server here in Austin. They can VPN into it and they can still do their voting remotely. A lot of them, the way they work, is off the website and they’re getting a lot of the briefs just like you would by going to the website, looking at the cases, and reading what they need to read there. They’re probably getting the purple sheet, which is the list of everything that’s been set up on a particular Tuesday. They may be getting that emailed to them or they may be looking at that list in TAMES then going into the website looking at the briefs there.

TALP 4 | COVID-19 Pandemic

COVID-19 Pandemic: The Texas Supreme Court has issued several emergency orders relating to the COVID-19 crisis since Governor Abbott declared a state of disaster in Texas.

 

We do have the ability for them to go into the conference agenda and push a button and have everything ported to the drive for them. It’s organized in a folder structure. I don’t know how many of them are using that, but they certainly have the ability to do that if they like and work that way. Everything is actually physically downloading to their computer. They are finding new and maybe more efficient ways to get access to documents that they need in order to do their work.

Since the courts jumped on this in the last couple of weeks, there have been a series of emergency orders that have come out dealing with the administration of justice throughout the state. Can you walk us through what those are and tell us some of the issues that have come up that probably were unforeseen until it happened?

There have been a total of six emergency orders relating to the COVID-19 state of disaster issued since Governor Abbott declared the state of the disaster in the state. The first emergency order required all judges in the state to avoid risks to court staff, parties, attorneys, jurors, and the public. And allowed them to modify or suspend any and all deadlines and procedures prescribed by statute, rule, or order for a stated period ending no later than 30 days after the governor’s state of disaster has been lifted. This order then goes on to talk about doing things remotely in order to avoid people coming into contact with each other. So, in other words, holding hearings via teleconference, the Office Court Administration has entered into a statewide contract for Zoom, which we will talk about more later. It also allows depositions to be conducted remotely. It allows witnesses to testify remotely, that’s kind of at the heart of what the first order was about.

The second order clarified that for all those child custody agreements out there, they should go by the established school schedule. A lot of the schools were closing or redoing their schedules, extending their spring breaks, and in some there were a lot of issues arising as to, if spring break was extended, did that mean that custody was extended? The Court heard a lot from family law judges about that so they issued that order.

I saw a lot of family law practitioners talking about that on Twitter and Facebook and it’s great that the Court clarified that so we would avoid a lot of headache. That had to be a difficult situation, but you can only imagine what that would’ve done to our existing court system if suddenly we had hundreds or thousands of custody modification issues with compliance with the regular orders. That was one of the things that I didn’t anticipate myself in looking at this. I saw that order come out and heard that discussion on the family lawyers, I thought that was a great solution for the Court to go on record as saying, “This is how it’s going to go.” 

It was pretty well-publicized. I’m still hearing from some people calling that are representing themselves that are still having issues with parents about that and wondering how I get the other side to recognize this order. But, it was pretty well-publicized so I think the public is well aware of it.

The third order, it modified the first order, and it prohibited judges from conducting non-essential proceedings in person contrary to local, state, or national directives. We’ve had a few shelter-in-place and orders issued here. Governor Abbott had an executive order that limited group sizes to ten or less. The order stated that the court should not schedule any in-person proceedings that would cause more than ten people to gather in the courtroom, which happens to be nine Supreme Court judges and one assistant.

The Texas Supreme Court’s emergency order allows depositions to be conducted remotely. Click To Tweet

The Court could meet in conference if it needed to, but it shouldn’t need to with the technology now.

The fourth order prohibits a trial, hearing, or other proceeding and an eviction to recover possession of the residential property. The Court obviously saw that there were a lot of businesses closing down and foresaw that there could be a lot of people temporarily out of work and weren’t able to pay their rent. That would be an unfortunate situation if people were forced out in the streets. Essentially, eviction proceedings are on hold for a period of time. We have gotten a few calls about that from constables and tenants and the like, but not too terribly many questions, so hopefully that’s running smoothly.

The fifth and sixth orders relate to State Bar matters. The fifth order put attorney disciplinary proceedings on hold and tolled the time periods for those proceedings. The sixth order says the State Bar election, which is coming up, shall be conducted entirely electronically. The State Bar, like everybody else, is running on a skeleton crew and having to count a bunch of paper ballots would be too difficult.

I also read Randy Sorrels put out a statement that indicated the mailing house that the State Bar was using was out of New York and there was an issue with the stability of being able to handle getting mailings out. New York, being one of the quasi-epicenters, having one of the higher incidences of the coronavirus currently. Having seen that order, I wonder if we’ll ever go back to a mailing once we’ve switched to electronic. We’ve seen a lot of innovation that’s been forced to come out of this situation. It would seem to me that, once we handle this electronically, would it make any sense at all to go back to paper ballots? You know what my opinion about that would be.

Most ballots were being cast electronically anyway, but the paper was still out there. As I learned when we were doing electronic filing, a lot of people felt electronic filling is great that everyone will do it voluntarily. After struggling with that for a decade, we figured out that wasn’t the case. You have to get people to move on to the new technology that’s out there. We talked a little bit about how this is forcing many of us to start getting familiar with some of the technology that’s available to us. I don’t doubt that this is going to change the way many of us do business for years going forward.

I suspect that we’re going to see a lot more people working remotely, people using the technology we’re using right now, the video conferencing, and the like and the file sharing. We weren’t using our OneDrive very much here at the Court. We encourage people to do it because we had had instances in which we’ve lost our server for a couple of days and when that happens, you lose your work. We were trying to get people to go to OneDrive, which we felt like was in the cloud and was more reliable than some of the aging hardware that we had here at the Court. This is going to push them all to do it and start working that way.

We talked a little bit about Zoom accounts and you mentioned in the order that OCA had gotten a statewide one. Have you heard, good, bad, indifferent, any feedback on courts using Zoom accounts for proceedings?

TALP 4 | COVID-19 Pandemic

COVID-19 Pandemic: With businesses closing down, the Supreme Court foresaw there could be a lot of people temporarily out of work and unable to pay rent.

 

I’ve talked to my colleagues around the country about whether they’re doing oral arguments via video conferencing, and I heard from a few high courts that had held oral arguments via video conference or were planning to. I didn’t hear any negative feedback from them. I heard some good ideas. One of the clerks, from the North Dakota Supreme Court, said that so that everybody would know how much time was remaining, her camera on her laptop showed the courtroom timer, which I thought was a clever solution for handling the timing situation.

I did hear though on Twitter, Bob Globe, was tweeting about watching the DC Circuit Court that was live streaming on YouTube, a video oral argument talking about how one of the judges dropped out the feed. He thought that there were some instances in which people couldn’t hear each other very well. I can certainly see where, if you’re going to have an oral argument via video conference, you want to try it out first. That’s something you want to dive into. You want to make sure that everybody’s testing out their microphones and everybody has a good wifi connection. They don’t want to do it on the cellular connection from their phone. Those are some things to think about in terms of what you need to plan for before you just jump into it.

Judge Emily Miskel in Denton County has been using Zoom to hold hearings in family cases. She’s learned a lot about how best to conduct those proceedings via video conference. Even some simple things like having a slide that tells people that they’re in the queue waiting to go live with the judge and telling people once it begins, reminding them that it is being video recorded, that it’s streaming through their YouTube channel. Just some things like that, like we go through in a courtroom, with all of our arguments, we remind everyone that the arguments are being webcast live and that they’ll be available later. We have an order on our website about webcasting now that says that if you have an objection to it, you can object to it. We’ve never had anyone object to it, but some of those things that you want to think about before you start with video conferencing proceedings are making sure that technology is working for you and you’re familiar with how it all works. And also to make sure that the parties and the public are aware that that’s what you’re doing.

So I suppose OCA and David Slayton’s folks are super busy trying to get this Zoom integration or the Zoom rollout to the judges. Have they been receptive? 

The people you start with are the evangelists for these things. David has a couple of folks, with Emily Miskel in particular. Judge Miskel has been great about working with the Office of Court Administration on Zoom hearings and testing all that out. Also, passing on to other judges the things that she’s learning about how to conduct courtroom proceedings using video conferencing. It will take hold. It takes time. It’s new to a lot of people and a lot of them aren’t going to want to jump into that until they need to. The longer this goes on, we’re going to see a need for it.

There’s that and also it seems like the clerk’s offices would want to do what they could to help facilitate moving the dockets along. We’re really at a standstill and have been for a bit. We can only imagine what the ramifications of this are going to be long-term but in the short-term, we would need to keep cases moving. Not only would the Zoom video hearings be a good option for doing that, but there are plenty of motions that can be heard on submission. The example of summary judgments comes to mind. I would encourage the clerk’s offices and the court administrative staff locally to consider, I mean Travis County is set up to where it should be able to handle this and getting issues presented to the courts for decision. Rather than have things completely come to a halt, it would seem a good use of the court’s time and the staff’s time once we figure out what this new normal is going to look like in the short-term to try to get issues teed up to the courts, even if it doesn’t require a Zoom hearing. Hopefully, the parties can get together and agree to submit certain things on the papers only to take a little bit of a load off of the system. 

There aren’t a lot of negative comments about holding oral arguments over video conferencing. Click To Tweet

It’s tough on the one hand, you’ve got all these orders saying that you should extend deadlines and accommodate requests for extensions. You’ve got to decide what’s important right now. There are a lot of people that would like to get back to work and move on with cases. If those guys are agreeable to it and you can get some judges to start using the video conferencing technology that’s available to them to hold some hearings. They could get up and running and start moving some of these things along that people are agreeable to moving through the courts.

In the long-term once all this is over and we’re back to whatever normal is, it may be an access to justice thing that helps out. It gets people in front of courts in ways that they may not have been able to before because of costs, travel times, those types of things. 

That’s a great point. Zoom technology, which every judge in the state now has access to and which they can stream on a YouTube channel so that the public has access to it as well if they want to, is available on your phone. Anyone could use it. People, representing themselves, could use it as well. It might be a great way for the courts to make access to justice more convenient, faster, and more efficient.

I have one last question for you, Blake. Should we be on the lookout? I noticed that when you put out the last emergency order, I think you tweeted it out on a Sunday night about 9 pm. Good for you in keeping the public aware and good for the Court for getting these things out there as soon as possible without regard for ordinary business hours. Are there any further emergency orders that we should expect to see or anticipate in the coming days?  

It’s funny you should ask that because Chief Justice Nathan Hecht never sleeps, apparently. Sunday evening, he emailed and asked for an administrative order number, and then the next thing you know, we’re issuing an emergency order. When those orders are about to come down, some of those conversations that used to happen when we were all in the same room together, I would know about it all. Those conversations are now happening via email between the judges, and I may not necessarily be aware of it before it comes.

For example, on the evictions, I learned about that from, Chuck Lindell with the Austin American-Statesman who said, “I hear that you’re about to issue this order,” and I said, “We are?” It turns out we were about to issue that order. Chuck is doing a great job there. He’s got better sources than I do. Hopefully, we’re going to start communicating with each other a little better. Some of them have surprised me as much as they surprised you all. I don’t know if another one is coming down, but I am now checking my email all hours of the day. You may see tweets from me at all hours of the day now.

TALP 4 | COVID-19 Pandemic

COVID-19 Pandemic: Civil Practices and Remedies Code § 132.001 offers a way for a witness to swear to a document without the need for a notary.

 

On that subject, I’ve noticed the last couple of days you’ve been at all hours tweeting out some tips for people that can help them streamline the process and keep things moving even while the courts are kind of on pause. Do you have a tip you’d like to share in closing?

I tweeted out this tip. A lot of people were contacting the office about having trouble submitting motions that may require an affidavit or a notary. So pro has vice motions, things like that where they might need a notary. People might want to take a look at online notaries who are authorized to notarize via two-way video and audio conferencing under Government Code §§ 406.107-.113 and Civil Practice and Remedies Code § 121.006. Also, you should take a look at Civil Practices and Remedies Code § 132.001, which offers a way for a witness to swear to a document without the need for a notary. You might find that useful since you may not be able to get to a notary in person or have them come to an office and notarize something. Again, that’s taking advantage of the tools that are out there and available to us.

That’s great. I think that’s a good point to wrap up with. Blake, thanks for coming back on the show. I’ll say the same thing I said last time. We expect you’ll probably be back again at some point. It will be nice to put a little space before your next appearance. Hopefully, we’re managing the coronavirus situation and we’re more in the business of returning things to normal than responding to this pandemic.

I appreciate you guys. Thanks for helping us spread the word about how we can adapt to these times. Hopefully, everybody gets back to work and keeps the court system running.

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