Legal Lessons Learned During Pandemic Captured in Multi-organization Report

HARRISBURG (March 2, 2021) – Lawyers learned a lot during the COVID-19 pandemic, and they also saw how profoundly the widespread and long-term disruption of legal services deters the administration of justice. Looking at the pandemic’s impact as a wake-up call, the PBA Joint Task Force for the Continuity of Delivery of Legal Services has issued a report that identifies practices to assure legal services continue so that citizens have access to justice for the duration of the pandemic and future emergencies.

PBA President David E. Schwager founded the task force last summer, envisioning a series of recommendations to update processes and technology enabling the legal system to continue operating under emergencies. 

“The pandemic has made it evident that not all courts, government offices and law firms were prepared for the remote practice of law, remote court proceedings and other legal processes,” Schwager said. “While many courts and government offices in Pennsylvania have the technology to provide secure electronic filing and video capabilities, many do not.”

Schwager appointed Judge Thomas I. Vanaskie (retired, U.S. Third Circuit Court of Appeals) to chair the 33-member task force that includes representatives from the PBA, Pennsylvania Association for Justice, Pennsylvania Defense Institute, Pennsylvania District Attorneys Association, Pennsylvania Association of Criminal Defense Lawyers, Public Defender Association of Pennsylvania, Pennsylvania State Conference of Trial Lawyers, Superior Court of Pennsylvania, Commonwealth Court of Pennsylvania and Pennsylvania Legal Aid Network.

Judge Vanaskie’s first priority was to gather as much data as possible to identify areas of focus. He formed a survey subcommittee to collect information about technology, training, wellness and support.

“We hoped the survey would show us where the difficulties were and would help us see how we can overcome those. Is it technology or is it training? What rules might need to be changed? How can remote proceedings work best?” Vanaskie said.

In addition, Vanaskie created three other subcommittees: civil practice to study the suspension of jury trials and how to overcome that problem; criminal practice to examine problems and obstacles encountered in conducting proceedings remotely; and omnibus matter to examine the needs to keep the legal system moving.

After surveying the PBA and other practitioners, the subcommittees met and developed findings and recommendations. The task force’s newly-issued report has an executive summary of these 10 recommendations:

  1. Any declaration of emergency that suspends all but essential services must recognize that legal services are indeed “essential.”
  2. There must be meaningful statewide leadership and accountability to enforce health and safety standards uniformly and consistently on a statewide basis.
  3. A joint task force involving the Legislature, the courts, the organized bar and the general public should be formed to find a way to establish a uniform electronic case filing system for Pennsylvania.
  4. Funding and training must be provided so that the courts and the bar are able to leverage the tools of technology to maintain operations.
  5. Courts and administrative agencies should consider using advanced communication technologies to conduct proceedings when appropriate and practical, consistent with constitutional and statutory requirements.
  6. To attack the backlog in civil cases, enhanced use of arbitration, mediation, judges pro tem, special masters and other judicial adjuncts should be encouraged.
  7. Courts and county bar associations should explore options for making space and technology resources available to pro se litigants.
  8. Administrative agencies and county row offices should adopt policies and procedures to enable remote proceedings and electronic processing of documents.
  9. Problems encountered in the family law system concerning custody and child support must be addressed so that these matters of personal significance do not languish.
  10. The PBA in conjunction with its CLE arm should offer programs on wellness and training on advanced communication technologies and other electronic resources to enable the members of the bar to adjust to the practice of law remotely.

There are many other recommendations in the detailed report concerning physical and mental health as it relates to the administration of justice. The recommendations also concern the practice of law generally, as well as discrete practice areas such as family law, immigration law, environmental law and others.

The report is being shared with stakeholders that include the Administrative Office of Pennsylvania Courts, judges at all levels of the Pennsylvania judicial system, legislators and the executive branch.

“There are many stated short-term goals and some long-term goals. One long-term goal is a statewide electronic filing system,” Schwager said. “Budget is a huge factor for that goal to be met. Meeting other goals will require a change in the system and might require legislation and three or four agencies to change the way they run their processes. A lot will require collaboration with various entities.”

Schwager also said the earlier budget cuts to the courts need to be restored. “The governor and the Legislature have to be on board. We’re going to lobby to restore funding. Federal money may be available, too. The ultimate beneficiaries of these steps are neither lawyers nor courts, but rather the citizens of the commonwealth that we are serving,” Schwager said.

With these needs in mind, Schwager wrote to Gov. Tom Wolf late last year urging him to include a budget increase for the courts in his 2021 budget message. To date, that funding has remained flat.

The subcommittee on civil practice looked closely at the impact the backlogs in the courts had. “What we are looking for is not going to be county-based, but a coordinated electronic case filing system. That is the highest priority,” Schwager said.

Within Pennsylvania’s 67 counties and 60 judicial districts, there is some general framework, but each was making decisions independently, even some judges within the same county. Vanaskie said there needs to be protocol and standardization.

“This was a unique and joint attempt to look at problems and potential solutions and make recommendations to the decision-makers in our commonwealth,” Schwager said. “We reached out to others and are looking at it system-wide, from a standpoint of what we think is best for a large swath, offering our expertise and help. We’re saying here are the problems as we see them and here are some recommended solutions. We’re here to help and guide in implementing or figuring out better solutions for the citizens of Pennsylvania if the leaders of Pennsylvania want our input.”

The task force intends to survey the bar in the next year to ascertain what recommendations have been pursued, what have been the results of those efforts and what additional recommendations may be needed to assure the continuity of delivery of legal services in a state of emergency.

The report’s executive summary can be found online at .

Founded in 1895, the Pennsylvania Bar Association strives to promote justice, professional excellence and respect for the law; improve public understanding of the legal system; facilitate access of legal services; and serve the lawyer members of the state’s largest organized bar association