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Lawyers, judges fret as court cases pile up

by John Moritz | November 29, 2020 at 2:30 a.m.

Months of courtroom closures and delayed trials caused by the covid-19 pandemic have created a glut of unresolved cases that is likely to extend into next year, attorneys and judges said last week, causing some to speculate as to how the courts will manage the workload once regular business resumes.

After allowing jury trials to resume June 30 following a three-month suspension, the Arkansas Supreme Court reversed course this month and ordered a halt to all state jury trials not already underway until Jan. 15, in response to a rising number of virus cases around the state.

In Pulaski County, home of the state's busiest judicial circuit, jury trials have been on hold since March, when the county closed its buildings -- including the courthouse -- to the public.

"It's not [just] a concern, there is a backlog," said John Johnson, the chief deputy prosecutor in Pulaski County.

While hearings, depositions and other pretrial matters have been allowed to continue -- in person and through video or telephone conferences -- Johnson and other attorneys said that even those gears of the court system have been slowed by the lack of coming jury trials, which under normal circumstances can encourage parties to reach settlements or plea agreements.

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Jesse Gibson, a plaintiff's attorney in Little Rock who represents clients in civil litigation, personal injury and medical malpractice cases, said he's experienced a double-digit backlog of cases and difficulty getting opposing parties, such as insurance companies, to want to settle.

"Without the proverbial sword of Damocles over their head, that there may be a pending jury verdict, there's not much to really push cases; it kind of makes cases sit," Gibson said. "Even before covid, the defense was never the engine behind, oftentimes, getting cases to resolution on the civil side."

Adding to concerns about a backlog of cases for some attorneys is the potential for a simultaneous surge of new lawsuits related to the pandemic after it has subsided.

That expectation has led to the Kutak Rock law firm in Little Rock to hire an additional lawyer to join its four-person business and class-action litigation group, according to Jess Askew III, a partner at the firm.

"Our firm, our litigation group, is planning for almost an explosion of litigation once the circumstances are right," Askew said. "We're planning for a lot of work."

Others were more skeptical of a surge in coronavirus-related claims, pointing to an executive order issued by Gov. Asa Hutchinson in June that granted businesses and citizens immunity from lawsuits over covid-19 exposures, so long as they are acting in "good faith" to follow the public health guidelines.

"As long as that remains in place, it kind of puts the kibosh on that" kind of claim, Gibson said.

David P. Glover, a medical malpractice defense attorney at Wright Lindsey Jennings in Little Rock, said he did not foresee an uptick in coronavirus-related claims in the courts. In three to four years, he said, there's even a possibility of a downturn in malpractice claims because of fewer people who visited hospitals for other care during the pandemic.

In the meantime, Glover said he's seen no downturn in new cases being filed, even as old cases set for trial this past year have been delayed.

"I'll be so busy in 48 months trying the stuff that I should have tried two years ago that I won't be able to feel it," he said.

BACKLOG PLANS

At the Pulaski County Courthouse, 6th Judicial Circuit Administrative Judge Vann Smith said last week that "there is definitely going to be a glut of cases" that judges will have to deal with when the courts reopen.

He said jury trials will likely be backed up at least a year after they resume. Meanwhile, Smith said he is preparing to hand over his administrative duties to another judge on the court, Leon Johnson.

Judges on the circuit are examining several possibilities to alleviate that backlog, Smith said, such as giving priority to older cases and calling small panels of jurors in for orientation over the winter so that juries will be quicker to form once trials begin.

In its per curiam opinion this month to suspend jury trials, the Arkansas Supreme Court ordered criminal judges sitting on lower courts to review their dockets for defendants who have been jailed for more than a year awaiting trial, and to determine if changes to their bond amounts are appropriate.

That order followed up on an earlier ruling in March, in which the high court said that any delays due to precautions taken against the pandemic would not count against criminal defendants' speedy trial rights.

"There's going to be a rush of cases come midsummer that I don't know how we're going to deal with," said Gregg Parrish, the executive director of the Arkansas Public Defender Commission. "I really don't."

Parrish said he's spoken to prosecutors about the possibility of reducing the backlog through plea agreements that hew closer to the state's recommended sentencing guidelines, though he added that some prosecutors view those guidelines as too lenient.

Johnson, the deputy prosecuting attorney in Pulaski County, said his office's attempts to resolve more cases through plea agreements did not prove effective.

"There has to be the threat of a trial in front of a jury to get a defendant to plead guilty," Johnson said, adding, "we make fair offers whether there's a pandemic or not."

COVID PREPARATIONS

In Fayetteville, Circuit Judge Mark Lindsay said he is planning structural modifications and the addition of plastic-glass barriers to his courtroom -- where the majority of criminal cases on the 4th Judicial Circuit are heard -- so that trials can resume when the Supreme Court's suspension is lifted.

To work through the backlog of cases, Lindsay said he is preparing to cram his docket, setting multiple trials with the same start dates in hopes that one or more will get resolved with plea agreements ahead of time. He's also asked the Washington County Quorum Court to hire a law clerk to help review pleas while he is in court.

"What we're going to have to do is go back to work as hard as we can as soon as the gates open," Lindsay said.

Before the jury-trial suspension handed down by the Supreme Court this month, Glover traveled to Chicot County in early November with apprehensions about his first medical malpractice jury trial since January.

In the months since his last trial, Glover said, 10 other cases set for trial had been delayed and he felt "resentment" that the one in Chicot County had not. But in the courtroom, he said, the judge had taken steps to set up barriers between the jury, attorneys and the gallery. Everyone wore masks, he said, except for when testifying or questioning witnesses.

After the trial was completed without any complications -- and with a win for his client -- Glover said he felt "invigorated" by the process.

"It's impaired," Glover said of the state's justice system. "But it's going to come back, and when it comes back, it's going to be very busy."

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