Roy: Good afternoon. Roy Oppenheim here from Oppenheim Law. This is our 14th “Zoom at Noon.” And if you can believe, it all started in this room right when we were closing down the office and the stay at home orders were beginning and now this is the first time, we’re doing a “Zoom at Noon” back in the office after 14 weeks. I wanna thank, of course, those people who are assisting us today: Geoff Sherman, my partner, Ellen Pilelsky, my partner, and Paola Vergara, who helped out with this presentation together also.
Today, we’re very fortunate to have a guest. We’re gonna be talking about How COVID-19 is Actually Making the Courts “Better.” And we have a very distinguished judge who will be joining us. I’ll introduce him shortly. But before that, go to the next page. I wanna talk about what we’re gonna be talking about.
Thank you. First, we’re gonna be going over the weekly unemployment and economic updates. And then we’re gonna do a pandemic update. And then we’re gonna have a conversation with the Honorable Dennis Bailey. And it’s gonna be a view of the pandemic from the bench.
In terms of our firm, those of you who know us, so, we were founded in 1989 and we had over 75 years of legal experience. We have five lawyers and we’re providing expertise in the area of real estate and commercial litigation over the years. During these past 14 weeks, so past several months, we have been advising and consulting our clients on various issues concerning the pandemic, which include of course, employer-employee relations, PPP, government stimulus issues as well as landlord, tenant and mortgage and mortgagee issues. And these issues will continue for some time to come, especially as the legal system attempts to try to become more robust as it tries to address these issues.
As I mentioned, here is our team, and we also have Paola Vergara, as I mentioned. Of course Mia Singh, our senior associate. I would like to introduce Dennis Bailey, Honorable Dennis Bailey, if I may. He is at the picture. He was elected to the Court in 2014. The Honorable Dennis Bailey is a 17th Circuit Court Judge serving Broward County, Florida. Judge Bailey has made national headlines concerning his commentary on attorney Zoom decorum and will discuss the effects of the pandemic on the court.
Last week, we talked a little bit about how the nation is addressing the recession as well as the pandemic and how the social movements that are evolving are impacting the real-estate. This week, we will have a unique opportunity to take a sneak peek at the experiences our judiciary is dealing with in these unprecedented times.
To begin with, let us look at the unemployment numbers and they’re kind of interesting. The charts are very interesting. And you could see that what’s going on is that… First of all, there’s of course an issue concerning accounting misclassification and an official classification of unemployment. But we’re actually seeing the number of folks who are applying for unemployment dropping.
And so that is kind of somewhat good news as we proceed. And hopefully, that number will continue to decline. If it’s gonna be a V-shape recovery, the V would have to come down as quickly as the line went up. And it’s more likely that we’re looking more at an L or U-shape kind of recovery. Time will tell as we see that.
Initial jobless claim is also dropping very precipitously and that is also somewhat good news and of course, the stock market is responding to that. This is the volatility index. It shows how volatile things have become during this first and second quarter of 2020. What’s more interesting of course is that many folks who have not been previously in the stock market, particularly gamblers, people who’ve been watching sports who now are bored have decided that their new penchant is going to be the stock market. And so a lot of the volatility is coming through sports people who, historically, you know, have lost their football, lost their basketball, lost their hockey and maybe baseball. And so the stock market has become their new penchant.
In terms of the virus itself, it’s a tricky situation as the country tries to open up and different states open up. We’re seeing an increase in the number of actual folks who are getting the virus. To some extent, that’s maybe because of more testing. So I would advise that instead of looking at the number of people that are being tested and the number of people who are contracting the disease, we really should be looking at hospitalizations and, of course, intensive care beds and to make sure that those beds do not fill up to the extent if they start filling up, you have a health crisis that becomes a real serious problem.
And of course, as the deaths go up, that also becomes an issue. Of course how the deaths get classified is also an interesting issue. But the real issue for all of us is the hospitalizations and that’s I think what we all should be focusing on.
In terms of Florida, as the state has opened up, we’re seeing that there has in fact been an increase, an uptick on all three in the number of deaths, the number of cases and of course the number of hospitalizations. And that will of course be an issue for what institutions do like schools and of course courts as we proceed forward.
In terms of subways in New York, a good example, experts are saying that, you know, unless the windows can be open or maybe the roofs literally sheared to create proper ventilation, same thing with offices, that indoor spaces are not gonna be preferred locations until there is indeed a vaccine. UV lighting is one issue that people are looking at but who knows if that’s gonna be effective.
And of course, there’s tons of advice out there from everyone on what works, what doesn’t work. That happened a 100 years ago and that’s happening again today. This is from a newspaper in 1918 or 1919 during the Spanish Flu.
So let’s go onto the main event here with the Honorable Dennis Bailey. This is actually interesting. We can get judge on. Judge, you there?
Judge Bailey: I’m here, but…
Roy: One second.
Judge Bailey: There we go.
Roy: There we are. Good to see you, Your Honor. Thanks for joining us.
Judge Bailey: Thanks for having me.
Roy: We have here a picture, I don’t know if you can see it, of a trial occurring in San Francisco. It says 1819 but it was 1918, 1919 actually, a 100 years ago. And I wanted to ask you what you thought of maybe having outdoor trials.
Judge Bailey: Well, first of all, I wanna point out that I’m old but I’m not that old. And I’m not in the picture actually. I’m always amazed. And this is San Francisco. It’s obviously different but I’m always amazed when I see pictures of Broward County from 100 years ago and how everybody’s in suits and coats and ties and it had to be sweltering heat back in those days. So I think that’s the…our comfort level is used to central air-conditioning. I don’t know that the participants would tolerate an open-air trial.
Roy: By the way, if anyone has any questions, please send them through. The judge and I will be glad to answer them as we’re going through this. Your Honor, so tell us what big changes that have occurred in the last three to six months in terms of being a jurist in Broward and in the United States.
Judge Bailey: It’s been interesting to see how it affects the different types of court systems that we have. Obviously, the hardest hit aspect of the court system has been the jury system. Everyone is still looking for a way to get the jury system back on track. And if it’s not gonna be by live jurors in a courtroom, can we do it online such as Zoom?
Even if we are in the courtroom, do we have jurors sit next to each other? Are they confined to the jury box? Are they confined to a small jury room to do their deliberation? So that we need to physically reinvent the plant that is the courtroom and that is the courthouse before we can bring jurors back into the system. If we need to keep the courthouse closed longer than we anticipated, can we move to an online jury system and what would that look like?
Broward has been leading in its investigation of that aspect of it. We have a video online available now that shows a mock jury selection process where all the jurors are at home and using online access to a courthouse to participate.
Roy: So let me ask you. I mean, it’s one thing for you as a professional to be using Zoom and to understand how to do maybe a trial that’s just a bench trial or maybe a motion hearing, but how do we expect the average person to be able to use Zoom, to expect that they have the proper technology, that they have the wherewithal to actually sit there and not have the cat, the dog and everyone else disturb them, you know, for a period of time. Is that asking too much of our jurists in your opinion?
Judge Bailey: No, it’s asking…it is an ask but it’s not asking too much. I’m in the family division now and what most people don’t realize about the family division is that it’s more than 50% unrepresented people on both sides of the table. About 25% of my cases have lawyers on both sides of the table. Another 25% have the lawyer representing one client. The other client is without a lawyer. And a good half, more than half actually, there is no lawyer in the room. It’s just citizen against citizen.
And I’d been very pleasantly surprised with how well they have risen to the challenge of going online and having their hearing online. And some of them had the teenager that can help them figure out how to set it up and where to click to get on the screen and so on. Some use their cellphones and do it from their cars.
But there is occasionally…the lawyer comes in and says, “Judge, my client is elderly. There’s no way she’s gonna be able to figure out how to do this. Can we please wait till the courthouse reopens?” I’ve clients call and say, “I don’t have an access to a computer. I don’t have an access to a camera on my cellphone. I can’t do this via Zoom.”
The problem with cellphones is that it adds another layer to the responsibility of the party in that if I can’t see you and I can’t swear you in, then you have to have a notary there with you and swear you in. The biggest challenge is getting them sworn in so that if they don’t have access to a camera, they’d need to go to a notary and have them swear them in.
Roy: And what do you think in terms of due process? Do you think there are issues in terms of when you cross-examine a witness via Zoom that you really don’t have the same ability to get that gotcha moment because there could be someone off camera coaching them, they could have notes in front of them that you don’t see, there could be other external events that are transpiring in the room that we just don’t have a clue about. What’s your thought on that in terms of due process?
Judge Bailey: It’s an artificial system. It doesn’t have a natural flow of the courtroom. The biggest challenge has been the hailing objections during the course of testimony. If somebody is going into an area of hearsay, the lawyer’s trying to stop the witness. Zoom is an imperfect system. It’s been a great asset to getting us…keeping momentum for instance in the family court, but it has its limitations. And when somebody’s speaking, the microphone goes to whoever is speaking, often whoever’s speaking the loudest.
So if the witness is going into an improper testimony, the lawyer’s trying to object. They cannot object because it can’t be heard. The witness can’t hear them so they don’t know to stop. They just keep going and it’s a very frustrating experience. So that sometimes we come up with a new rule on how to handle these things. That I’m watching the screen. If a lawyer has an objection, they raise their hand in front of the screen and I know he’s got an objection. I’m not gonna try to stop the witness or I’ll raise my hand to the witness to stop them and then get to the objection. But if I see their hand go up, I know it’s a contemporaneous objection and their record is preserved.
Roy: Would you in theory mute the witness if they’re going into an area that’s inappropriate since you control the [crosstalk 00:12:19]?
Judge Bailey: I’ve not…I’ve muted witnesses when they refuse to stop. And again, because I’m dealing with pro se, they have a right to cross-examine the other party. Well, sometimes it’s their ex-spouse. And so when they ask the ex-spouse a fact question and the spouse answers, they want you to know that’s not true because I told you neither…they’re not asking questions or launching into their summation of the trial. And try to get them to stop. They don’t stop. I just put them on mute until they notice that they’re on mute.
Roy: So let me ask a question. Do you think that this Zoom is actually bringing the courthouse in some ways closer to the community in that people don’t feel as, I guess, intimidated by going into a vaulted ceiling courthouse with, you know, beautiful windows and all the accoutrements of institutionalism and that, you know, someone could literally, you know, just get on their phone, sit in their car and be at trial? And the question is do you think that in some ways that brings the courthouse closer to the community and gives people more access to the legal system? I’m kinda curious about that.
Judge Bailey: There’s no question that it does. And it comes with pluses and minuses. The plus is they don’t have to take a full day off of work. They don’t have to drive to the courthouse. They don’t have to pay for parking. They don’t have to go through security. They don’t have to sit on a hard-wooden bench on the hallway waiting for their case to be called. And pay their lawyer hourly for all of this themselves. So the lawyers spend all day there.
So in a very real sense, the hearing is just limited to that time. If the hearing’s set for 2:00, they just need to turn their camera at 2:00. They don’t need to spend the whole day preparing.
Roy: And this leads to a question that…I’m sorry, Your Honor. Because someone has a question just on this point. “Does the judge think we’ll ever go back to going into actual court? How will the court look? Face shields?”
Judge Bailey: The short answer is yes. There are a lot of things that we need to do in the courtroom. The more complex the trial is, the more difficult it is on Zoom. If I can have 15 witnesses, I’ve handled complex litigation where there have been over 200 exhibits put into evidence. And exhibits are a source of problem online. How to handle the exhibit, how to perfect the record?
And we have a system now where the attorney will move a document into evidence. I’ll call it exhibit one. We’ll identify it and it’s a seven-page document calling, you know, contract between A and B. And now that’s an evidence as exhibit one. The end of the trial, we get from the clerk their list of exhibits, their official list. We send it to the attorneys. The attorneys have to match up the exhibits that they talked about with the clerk’s and it’s sent back to me and then put it into the court system.
If there’s a mistake along the way between all those steps, the record is not gonna be what the record should be. So there’s a risk involved. We need to avoid that risk with the more complex cases, especially. We need to avoid it in all cases but the complex ones are the problem. So there will always be a need to be in the courthouse.
I think the better question is in the five-minute hearings where there are no witnesses and evidence, do we really need to go all the way to the east side of Fort Lauderdale to go to a courthouse to have that hearing. Does a lawyer from Weston or a lawyer from Palm Springs or a lawyer from Miramar have to drive all the way to East Fort Lauderdale for a case management conference that doesn’t require witnesses or evidence?
Roy: So without getting too far into the weeds, if, let’s say it’s a foreclosure and you have to show the original note or let’s say it’s a will contest and you have to determine whether it’s a jury trial or even a bench trial. You have to determine if the will is authentic based on the signatures, based on the quality of the paper. How do you do that using Zoom?
Judge Bailey: You can’t. There are cases where I tell the attorneys, “You’re gonna need to get that physical exhibit to me beforehand.” There are color photographs that they need to put in. There’s a colored video that they need to put in. I need to see that at the time I’m making a decision in the trial. Get it to me before the hearing. There are…
Roy: How does…?
Judge Bailey: Go ahead.
Roy: I was gonna say how would opposing counsel then have an opportunity to review that document also and contest it whether it’s an original note on a foreclosure or, again, an original will in a will contest?
Judge Bailey: It increases the responsibility of everybody, including the judge at the case management conference or the calendar call, whatever terminology the judge uses to say, “Okay. We’re gonna go to trial on this in two weeks. In the next two weeks, go meet with the other side, take a look at all the exhibits. See them firsthand.” So when we talk about a trial, I can’t have the attorneys saying, “Judge, I haven’t seen that exhibit yet.” Well, you should’ve. You should’ve gone in the last two weeks. We talked about that.
So that it increases everybody’s…it’s almost like switching to television. It’s almost like a script. You’ve gotta go into production. You gotta go see the exhibits beforehand. You gotta prepare what you’re gonna do, how you’re gonna do it, make sure everybody’s got exhibits. For years, we have done expert witnesses appearing via Skype or via closed circuit TV from California or whatever. And when you do that, it increases the amount of logistics that need to happen before the trial. I think that’s the key to successful trials on Zoom is everybody handling the heightened logistical challenges.
Roy: So I guess the question is when do you think we will go back possibly to the courthouse where jurors will sit, you know, next to each other and you will have people in the audience, you know, actually sitting there? I mean, I guess the question is, you know, when could that happen?
Judge Bailey: That’s a great question. I don’t know if Washington DC knows the answer to that question yet. It’s gonna be statewide. You see the governor on television every other day talking about what’s gonna reopen when. Orders from the Supreme Court estimate decisions on when the courts are gonna reopen, when the persons in the criminal system… There are certain constitutional rights to a speedy trial and to due process. Those have been stayed during the coronavirus. You can’t have a speedy trial if the courthouses are closed. They have to be reopened. The clocks have to start again. We have to bring jurors back into the system.
We expect that there are gonna be a very low turnout of jurors willing to come to the courthouse, willing to sit in the jury room and ride the elevators. But also, there are many jurors who are gonna say, “Look, if society’s reopened, I can’t afford to go to the courthouse. I gotta go back to work.” So that we’re gonna have a real challenge on our hands on getting jurors available to hear jury trials once we do start up again.
Roy: So someone asked if you miss the human interactions, you know, the actual person to person.
Judge Bailey: Absolutely. And it is a very impersonal process. I go into work. I do go to the courthouse every day to work. I ride my…I go through the judges’ entrance, I ride the judges’ elevator up to the judges’ floor. I go to my chambers. The only person I see is my judicial assistant. I sit in my chambers all day from 8:30 to 5:00 on Zoom seeing all these people all day, every day. And then I leave the same way I came in. It’s a very lonely process.
A good friend of mine recently became a federal judge and I teased him then that it’s a…life of a federal judge is more lonely than life of a state judge. It’s just the nature of the beast. And now I’m living the life of a federal judge with all the quirks.
Roy: That’s funny. Let me ask you. I know you made some national notoriety when you commented a few months ago on the decorum of lawyers on Zoom. Have you seen an improvement since this became a national issue or are there still problems?
Judge Bailey: I’ve seen great improvement. It happened immediately in response to what happened. First of all, I didn’t expect any of that to go viral like it did. But I’ve seen seminars, you know, national seminars that start with, “Please, put on a shirt.” I’ve seen local articles like in the Broward County Bar Association Barrister about the dress code for Zoom and so on. So that it’s been a topic of discussion. You never like to be the first one in through the door. I happened to be the first one in through the door on that issue but it’s been improved dramatically.
Roy: And [inaudible 00:20:51].
Judge Bailey: And at time there are light moments. There was an attorney the other day who had to go across his office and get something. I noticed that he was in a coat and tie but he was wearing Bermuda shorts. So that…and by the way, I’m not wearing Bermuda shorts today. But it’s improved dramatically.
We still have the odd situation. I had a hearing this week for the pro se person and he was literally riding the city bus trying to talk to me in the hearing. And I said, “You gotta take the next bus stop and get off. I can’t do this hearing with you riding a city bus.” But that’s one of the things that Zoom does. You can be anywhere. And I’ve had a number of hearings. It’s rare for me to go a week without somebody doing a hearing from their car. Sometime the police officers that are testifying from their squad car.
Roy: So what happens when technology fails? For example, there was like a national outage yesterday of certain cellphone carriers for a period of time. What do you do if someone just drops? Whether you drop or if a plaintiff drops or even a member of the jury just drops because of technology. What do we do then?
Judge Bailey: It’s no different than what we do in life when the fire alarm goes off in the courthouse or that there is a storm and everybody has to leave to go home early. You interrupt. You interrupt the process. And I, for as long as I’ve been a lawyer, as long as I’ve been a judge, we’ve always told jurors that, “We estimate the end of this trial will be on Tuesday or around Thursday.” We don’t know for sure because life sometimes interrupts but we estimate it’ll be that day. And you deal with the interruptions as they come on.
The judge has to keep watching on Zoom to make sure the lawyers are there. If somebody else disappears and that happens not once a day but it happens several times a week, you gotta stop the hearing. Let’s take a break and then wait for him to get back on.
Roy: So the Zoom calls are public hearings, are they not? Couldn’t anyone actually participate if they had the dial in and how do they get that information if they’re interested in a particular trial?
Judge Bailey: I haven’t had a week yet where somebody wasn’t sitting in and watching who is not a party, not a witness. They get it from the parties. Usually it’s a family member. It’s a supportive sibling or a nephew or a cousin. And I ask who they are, because I don’t know if it’s a witness. And so I’ll bring them into the Zoom hearing in front of the other attorneys. I’ll ask, you know, “Who are you? What’s your interest in the case?” They say, “I’m a witness.” I say, “Okay. I’ll put them back in the ‘waiting room.'” Otherwise, if they say, “I’m just an interested citizen.” I’ll say, “Okay.” And I turn off their camera and mute them but they can see and hear the trial. We just can’t see and hear them because I don’t them to interrupt.
Roy: So let me ask you a question.
Judge Bailey: And what’s interesting… Go ahead.
Roy: You know, right now, if you wanna televise or film a hearing, you have to get approval from the judge if it’s in person or from the Clerk of the Court. But now since these are all being taped, aren’t…isn’t really every single proceeding that’s going on now open to the entire public and, you know…I think that this creates more opportunity for people to see how the system works.
Judge Bailey: Well, keep in mind that the courtrooms are always open to the public with a few exceptions. When there’s a child witness testifying about sexual child abuse or something of that nature. But they’re all open. In fact, the interesting question is when we go back, and we have social distancing and the people wanna sit in and watch the trial because it’s high profile and it’s grabbed the attention of the public for one reason or another, are we gonna keep them out because there’s not enough seating in the back for social distancing? Are we gonna curtail their right to sit in and watch a trial?
In criminal, there’s a body of case law about you’re not allowed to preclude family members from the defendant or from the victim from watching the trial. You have to make accommodations. Even if they wanna watch jury selections, you have to make accommodations. So that what happens when we go back and we can’t fit everybody? Do we turn the Zoom cameras around so now the camera’s not facing the lawyers and the judge? The camera’s facing the courtroom as a bird’s eye view to allow other people from home to click on and watch.
Roy: Very interesting. One question from the audience is how much are the courts backed up now and will we ever get, you know, unclogged or is there not a backup?
Judge Bailey: Certainly, it will be unclogged. Certainly, there is a backup. And depending on what division you’re in, it affects the nature of the backup. The family courts for instance, there is no backup. We’ve not missed a week of work. We’ve been going in and Zooming from day one. My docket has not increased in the number of cases pending at all during this coronavirus because I’ve been able to go on every day and do non-jury hearings, even trials despite the isolation.
Not so with the criminal system, that’s been most affected by it. But one of the things that we’ve seen happen is to minimize the detrimental impact of that delay is a different attitude towards incarceration while the case is pending. We have done a great job in Broward of lowering the jail population, releasing as many people as we can now sitting in an isolated space with closed windows that won’t open with, you know, poorly-ventilated air or well-ventilated air doesn’t seem to matter. But they’re in a risk situation.
So that in Broward County where we for many years operated under a federal dictate to empty our jails because we were over 100% capacity. We are now below 66% capacity at Broward County in our jails as of this morning. And that’s been through a great effort in Broward County so that we have minimized the detriment of backlog.
Roy: So have we seen crime go up like from a recidivist perspective of those people who were originally incarcerated for, you know, having been arrested and then they are let out or we’re not seeing some major spike? Because that’s always been the argument is that, you know, if you let people out who potentially committed a crime too early before they’re even convicted that you could be letting someone out who’s dangerous to the entire community.
Judge Bailey: Well, I think the focus has been on danger. Focus has been on physical violence. We have always strongly reacted to physical violence but what you have seen is the economic crime where there is no violence involved whether it’s shoplifting on the low end or some scheme to defraud the elderly on a high end. We don’t need to incarcerate those people. Let’s get them out of the jail system. So that the case numbers are going up but the jail population is going down.
Roy: Your Honor, we have one minute left. Is there anything that I didn’t hit upon that you wanted to impart in terms of a takeaway from today in terms of how the legal system has adjusted in connection with the COVID crisis?
Judge Bailey: Well, I get a kick out of your title on, How the COVID-19 Has Made the Court System “Better.” I think the COVID-19 has made society reexamine itself, take its systems apart, reassemble them and see, do we need this? From law offices who decided we don’t need all this space to people moving into high rises they decided we don’t need to live in a building that is 20 floors where I’ve gotta ride the elevator every day. Families have reexamined how they spend their free time. Do they go out together? Do they ride bikes together?
So that these kinds of events that affect everybody causes everybody to reexamine how do you run a restaurant, how do you run a business, how do you run a manufacturing plant? And they asked how do you run a courthouse? So all of us are reexamining how we do things and how we can make it better.
Roy: Your Honor, I wanna thank you for joining us today at the “Zoom at Noon” sponsored by Oppenheim Law. As those of you who’ve been with us before…we have a ton of questions. I can’t get to all of them since we reduced this to a half hour because everyone has more important things than to spend an hour with us. But maybe we need more time. But the whole idea of this is to help all of us figure out how we’re gonna get along, how we’re gonna move forward, what’s around the next corner so that we can all cope together and get through this together.
So on behalf of everyone at Oppenheim Law, I wanna thank the judge and everyone else for participating today and thank you for your time. We’ll see you next week. Roy Oppenheim, “Zoom at Noon”. Have a great day and a great rest of the week. Thank you. Bye, bye.
Judge Bailey: Thank you very much.