Justice system slowed—litigative process delayed post pandemic

As the coronavirus shifted from distant possibility to dire reality in March 2020, chief judges in federal courts nationwide acted quickly to stem its spread. Chief U.S. District Judge James Bredar reluctantly suspended nonemergency hearings and canceled jury trials in Maryland only after its governor announced he was activating the National Guard and closing public schools. At the same time though, Judge Bredar worried his order curtailing court operations would run afoul of criminal defendants' constitutional rights and lead to a caseload clog. "Unquestionably when we come out the other side of this event, dockets will be very crowded, and we will need to make up for lost time," he  in March 2020. Now, with his court having returned to normal operations, Judge Bredar says the backlog was manageable. "It wasn't as though there was a three-year accumulation of cases, because the pandemic was experienced, at least in our court, very much in waves," he recently told Law360. "A backlog still accumulated, just not a terrible one." In fact, Maryland's weighted caseload — a statistic the federal judiciary calculates by analyzing each district's docket for complexity, then dividing the result by the number of allotted judgeships — is lower now than it was before the pandemic. In the year ending on March 31, 2020, there were an average of 426 weighted filings per judgeship. As of March 2023, there were 379. That reflects a nationwide shift. By the end of March, the U.S. average for weighted caseload was the lowest it's been in five years. But even with fewer cases on judges' plates, the pace of justice has slowed. By the end of March, civil litigation lasted nearly three months longer than before the pandemic, marking a 29% increase, and criminal felony case durations spiked 64%, taking more than four months longer to resolve, according to new statistics from the Administrative Office of the U.S. Courts. Though the coronavirus public health emergency has ended, its aftershocks are still being felt in federal courts, leaving both litigants and criminal defendants in a holding pattern. Advocates worry access to justice may depend on what year litigation was filed or when a defendant was arrested. It's a phenomenon that defense attorneys like Nellie King have noticed, as criminal clients wait months longer for their day in court amid a "flood and a frenzy to get this backlog cleared." "They're sitting in jail or out on release for extended periods of time," said King, who practices in West Palm Beach, Florida, and serves as president of the . "When we have a presumption of innocence, and you can't clear your name or get back to your family or your work life in a somewhat timely fashion — so that it is not years down the road as far as resolution — then you're just kind of in limbo." A Slowdown In the years leading up to the pandemic, new federal court filings were climbing, with an 18% national uptick between April 2017 and the end of March 2020. Federal prosecutions fell in 2020, as violent crime dropped 22% compared to 2019, according to data from the Bureau of Justice Statistics. New civil filings spiked in the first year of the pandemic, driven by a dramatic increase in civil personal injury and product liability filings, which more than doubled thanks to  over allegedly faulty combat earplugs. New filings eased back down the following year and have continued to decline. By March, they'd hit their lowest level since 2017. "Case filings likely decreased during the pandemic because of the perception that courts weren't effectively open for business and that, temporarily at least, it was not an effective way to resolve disputes in an expeditious manner," according to Jim Sandman, the former president of the ., who chaired an  task force formed to handle legal needs arising from COVID-19 as the disease began to spread in the U.S. While attorneys were watching the statute of limitations on time-sensitive cases, they were also putting litigation on hold, according to U.S. District Judge John Tunheim, who from 2015 until last June served as chief judge of the District of Minnesota. "I heard from lawyers, 'Well, we're kind of hanging on to a number of cases. Likely we'll file them once the court is open again,'" he said. "Now, we were open the whole time. But we were open electronically, really." Yet the decline in new filings was "masked by the pandemic," according to U.S. District Judge F. Dennis Saylor IV, chief judge of the District of Massachusetts.

"There were delays in resolving civil cases, especially big ones that required a lot of attention," he told Law360. "People couldn't take depositions, or they're taking them by video and they're fighting about that. Everything kind of slipped." That's contributed to an ongoing slowdown, though many federal district courts resumed normal operations a while ago. In the first year of the pandemic, the national average for the duration of a criminal case spiked immediately and has continued to climb over subsequent years. Civil cases, meanwhile, saw a decline in duration over the first year of the pandemic, hit prepandemic levels the following year and, in the 12-month period ending in March, lasted longer than they have in more than two decades. Judge Tunheim attributes both spikes to long stretches where courthouses were largely closed to in-person proceedings. For example, in his district of Minnesota, trials were canceled from March until September 2020, at which point there were a few criminal trials. One, concerning a mosque bombing, faced delays, including a mid-trial continuance when a juror got COVID. After that, he said, he canceled jury trials again until May 2021. "The time it takes to resolve a case really had a lot to do with the pandemic," Judge Tunheim said. "Things just really slowed down, and once they started up again, we went to the oldest cases first. So the newer cases were then taking longer to resolve because we were working on the older cases." Defendants in Limbo Judge Saylor wrestled with his decision to limit court hearings in Massachusetts back in 2020. "It's easy to say everything will be postponed," he told Law360 at the time, "but it's hard to know what to do about that person who is in jail awaiting trial." In the three years since, the wait for a Massachusetts criminal case to be resolved has doubled, from a prepandemic average of just over a year to 25.7 months by the end of March. Before the pandemic, the durations of criminal cases had been modestly decreasing.