COVID-19 ANNOUNCEMENT

Office Procedure. Our physical office has been closed since March 12, 2020, but our work carries on. Our firm has always been tech forward and our office staff has been working remotely for years. This quarantine has not interrupted our ability to serve our clients. We continue to communicate with our current clients, meet with new clients, draft documents, file pleadings and negotiate resolutions. Everything lawyers do - except go to court, and we are working on that.

Court Procedure. In-person proceedings are extremely limited. Other matters may be resolved by phone/video hearings, submission of written argument only, or submission of written agreed resolution.

In-Person Judicial Proceedings. All courts are currently clearing their dockets of in-person proceedings (motions and trials) between now and May 1, 2020 (however, we expect this time to be extended potentially into June), except for matters deemed an emergency or Constitutionally required. The Tennessee Supreme Court has stated that these in-person hearings are reserved for matters that relate to: emergency protection orders of children, the elderly, and other persons; protection of Constitutional Due Process Rights; and Constitutional rights of criminal defendants relating to bond related matters and plea bargains for incarcerated defendants. Other previously scheduled in-person court appearances are being rescheduled by the court clerk. Some but not all matters during this time frame have been rescheduled. Some matters already rescheduled once will be rescheduled again as a result of the extension order. So far the time frame for rescheduling of these matters is consistent with the usual scheduling timeline, meaning hearings are being scheduled approximately 3-4 months out. It is fully possible that the longer this drags out that the case backlog will cause longer delays in scheduling matters for trial.

Other Judicial Proceedings. The courts are still open to address other judicial matters through alternative methods. This Order does not affect the court's ability to resolve matters that do not require in-person contact. The Tennessee Supreme Court Order expressly encourages and does not prohibit court proceedings by telephone, video, teleconferencing, email, or other means that do not involve in-person contact. Although some (many) non-emergency matters will need to be rescheduled, judges will continue to resolve matters that do not require in-person contact. The ability to resolve issues without in-person contact at this time is generally limited to matters that do not require submission of physical evidence, such as phone, text, or bank records, pictures, audio, or the like. Matters appropriate for judicial resolution are those that are submitted as an agreed resolution by the lawyers and party claimants, those that can be resolved by submission of written argument, and some matters requiring only attorney argument or scheduling.

Lawsuits. New lawsuits may be filed and pending lawsuits may continue with discovery, depositions, negotiations, mediation, etc., but court hearings are going to be difficult to come by. Most lawsuits can proceed as usual. Most lawsuits are settled by agreement without the need for a trial. These lawsuits may proceed as usual. However, the approximately 10% of high-conflict cases may see delay in resolution due to the necessity for a hearing, trial, and judicial intervention.

What does this mean? If there are contempt or child support or child visitation problems, there is a good chance that these problems may not be addressed by a court for a long time. If your divorce or other family problem has been pending for a while and you would like to bring it to conclusion, the courts are probably not going to be available to you, and you should consider alternative means of resolution such as serious negotiation or mediation. Mediation usually only involves five people and can be handled in a way where only three people are together at a time, so risk can be minimized. Where no in-person contact is desired, mediations using virtual conferencing is available.

Court Ordered Payments. Since people and businesses may not be collecting income or wages, child support, alimony, and other payments are going to become a problem. If you owe such payments and no longer have the ability to make them, you should consider contacting a lawyer to file a motion for modification. While the pandemic is of such an emergent nature throughout the world, and courts will likely take this into consideration, the better part of valor is to file a motion for modification before you fall into arrears to provide you with maximum protection from contempt. Filing a motion for modification may not resolve you of the obligation, but impossibility of payment is a defense to being held in contempt. DO NOT JUST CUT OR STOP PAYMENTS WITHOUT CONSULTING A LAWYER!

Visitation. Questions are going to arise about whether or not healthcare and other professionals who are exposed to sick people should be in the presence of their children, whether for custody or visitation. Of course, such professionals have always had those issues. In light of the pandemic, however, there are going to be questions about this. Any possible answer to this problem will probably change by the day, if not the hour. However, I would like to offer the following, the first three of which came from an emergency room physician:

  1. Children are in the lowest risk group in the population.
  2. According to recent figures, for every confirmed case of coronavirus, there could be 5 to 10 unconfirmed cases, so there is a risk of exposure regardless of what the parent does for an occupation.
  3. Medical and other personnel who are used to working with ill people, know that they are under an obligation to determine whether or not they should self-quarantine and limit visitation if they are having symptoms or know they've been exposed to a coronavirus patient, without proper PPE.
  4. Court Orders are in place to provide predictability and reduce conflict. Court Orders regarding children have always been made in the best interest of children. Court Orders are to be followed or the offending person may risk admonishment or punishment for the Court later. However, Orders can be modified by later Court Order based on a change of circumstances. No one could have predicted a change in circumstances of this magnitude. No one could have predicted that the Courts would not be accepting applications for resolutions of disputes about following a plan based on possible exposure to the Covid-19 virus. Parents must work together in this difficult time because children need both parents and they do not need to be brought into panic mode by unnecessarily isolating them from a parent. At the least, parents should consider extensive use of face time and skype to keep children and parents connected. Parents should also consider the use of make-up time with the other parent after this is over.
  5. Parents and custodians should consider the potential and likelihood for infection of the child's other family members who may be considered at risk population, such as grandparents or family members with other health complications.

Working with a lawyer. If you have specific questions about your circumstances please contact us. We are working hard to keep our clients and the public informed on the best way to handle these issues. You may find more information on our Facebook page here: https://www.facebook.com/Attorney.Sam.Byrd/