On April 26, 2021, Maryland courts will transition into Phase 5 of its coronavirus phased reopening Plan, during which they will become fully operational. Although many attorneys are eager to resume standard practices, some have reservations due to challenges the reopening could present.
Recently, the MSBA surveyed members regarding their thoughts about vaccination efforts and the reopening of the courts. The survey revealed that one of the foremost concerns about courts reopening is how it will impact people’s health. Presently, approximately 30% of Marylanders are fully vaccinated. While many attorneys are among those vaccinated, members of their support staff and their clients are not. Several attorneys have also noted that they often work with interpreters and other outside contractors, some of whom have not yet been able to get vaccinated. Additionally, lawyers in numerous practice areas work with clients in underserved areas who do not have access to vaccines. Thus, although the health of practicing attorneys may be protected they may have to place the health of others in jeopardy to attend court proceedings.
The survey also demonstrated that not all attorneys wish to receive the vaccine. Some people have noted that the vaccines are experimental and underwent a relatively short testing period, and they have uncertainties regarding their safety. For example, many people have opted not to receive them due to the lack of information regarding the long-term effects of the vaccines, or the potential health risks for women of childbearing age.
Many of those with pre-existing medical conditions also object to the idea of having to disclose private health issues to their clients or the court in order to obtain permission to deviate from the current procedures. Others have religious objections to vaccinations or are precluded from taking them due to underlying health conditions. Regardless of their reasons for declining to receive a vaccine, unvaccinated attorneys may nonetheless face the risk of contracting the coronavirus if they are compelled to interact with people in the courthouses.
Recent articles in the New York Times and the Baltimore Sun revealed that many practitioners are apprehensive about the impact pandemic-related safety measures may have on cases as well. Although they recognize the value of resuming in-person trials and hearings, they are worried that doing so with restrictions could unjustly impair their ability to fully protect the interests of their clients. It has been noted that masks may make it more difficult to gauge the credibility of witnesses or to determine what impact testimony or evidence has on jurors and judges.
There are also concerns that the pandemic will adversely affect jury selection, as many jurors may be afraid to serve due to concerns about potential exposure to COVID-19. In turn, this could result in a smaller and less diverse jury pool, potentially impair the right of both criminal defendants and civil litigants to a trial before a jury of their peers. Among those surveyed by the MSBA, some lawyers noted that while virtual proceedings are available in many courts, they that it is prejudicial to their clients to not have them physically present, especially during cross-examination and questioning of other witnesses.