Is COVID impacting judicial productivity? Definitely maybe.

by Law Week Contributor

By Ben Strawn, Omeed Azmoudeh, DGS Knowledge Management & Research Department
DAVIS GRAHAM & STUBBS

Judges are lawyers. And a lot of lawyers aren’t getting as much work done these days. Among the many possible reasons for that are difficulties associated with working remotely: inefficiencies in changed routines, increased distractions, time lost to technological snafus. Of course, it’s also just plain harder to focus on work right now.

But some lawyers are seeing an uptick in their productivity. The COVID-19 pandemic has cleared most people’s calendars of time-consuming events and travel, work-related and otherwise. And in some unfortunate ways, there are fewer distractions because there is no water-cooler banter over last night’s Rockies game, no stopping by a colleague’s office on the way to get a cup of coffee.

So what impact might judicial productivity be experiencing during the pandemic? On one hand, judges have experienced changes to their own routines and may be just as vulnerable to productivity detractors as the rest of us. On the other hand, judges occupy much of their time with in-person events — in the form of trials and hearings — many of which have been canceled, postponed or shifted to a less time-consuming remote format. Perhaps the shift away from live, in-person courtroom work is allowing judges more time to complete written work products.

For federal courts, the most likely source of data to answer this question is PACER. For any given district, PACER allows users to search for all written opinions within a specified time. A search in the District of Colorado’s PACER system shows a marked year-over-year decrease in the number of written opinions filed in the District in 2020 as compared to 2019. The year-over-year decrease amounted to 11% in March 2020, 21% in April 2020 and 31% in May 2020. The number of pending cases, as reported on March 31, has increased 7% compared to 2019, so an overall decrease in cases does not appear to be causing the drop in written opinions.

At first glance, then, the year-over-year drop in written opinions supports the notion that Colorado’s federal judges are, like many other lawyers, struggling to stay as productive as normal. The data for May appears particularly significant. The number of written opinions filed in May 2020 is 13% lower than the average number of written opinions filed in May 2017-2019.

But digging deeper makes it hard to trust that conclusion. Most significantly, taking the written opinions data back several more years, to 2016, reveals significant year-to-year variations in the data. For instance, from April 2018 to April 2019, the number of written opinions in the District of Colorado increased over 40%. And in both March and April of 2016, the number of written opinions was over 1,000, whereas the number has never been over 200 in March and April of any year since then. The significance of these fluctuations in even just a few years’ worth of data suggests any conclusion based on a single year-to-year difference may be suspect.

Further obscuring any reliable conclusion is the nature of the written opinions measure itself. According to an October 2005 PACER Service Center newsletter, authoring judges determine whether their own work should be classified as a Written Opinion. The measure is thus subjective and may be influenced by variations (intentional or not) in individual judges’ practices as to what written work product merits the written opinions designation.

Breaking the data down into smaller sets isn’t much more help. PACER does not allow searches to target written opinions by individual judges, but the data PACER provides can be manually sorted to show how many written opinions a judge has filed in any given timeframe. Unfortunately, however, the variation for any given judge over a multi-year period again makes it hard to tell whether any difference in the 2020 data is coincidental or pandemic-related. Some judges appear to have written more opinions in March through May 2020 compared to 2019, while others appear to have written fewer, but none show a clear trend when preceding years are added to the data set. And for some judges, the total numbers involved become too small to seem trustworthy at all.

A similar effort to manually filter the data to only written opinions on dispositive motions has a similar result. Variances in the 2020 data are observable and show fewer written opinions on dispositive motions in 2020 compared to the same months in 2019. The month of May stands out again here with only 31 written opinions on dispositive motions in May 2020 compared to 44 in May 2019. But the lack of a clear trend in preceding years’ data still complicates any conclusions one might draw.

So what, then, can be learned? If nothing else, don’t assume the pending backlog of trials will mean a backlog for your case. Remember that, according to Magistrate Judge Hegarty’s annual presentation of statistical information about the District of Colorado’s cases, the rate of cases going to trial was only 1.46% in 2018.

That makes it likely your case’s progression through court will have less to do with the impending backlog of trials and more to do with a decision on a motion to dismiss, to compel, or for summary judgment. And although there’s some reason to think such decisions may be slower in coming, it’s worth considering the alternate possibility that your judge is instead moving more quickly through written work product than they would be if presiding over the usual stream of trials and in-person hearings. The raw data from PACER is difficult to discern, but several of the proprietary research platforms allow more ready filtering of data related to particular motion types and judges. If the moment merits it, this data may be worth consulting to secure a better sense of the timeline you and your client should expect in your case.

Judicial productivity may be hard to judge, but it’s always worth consulting the available data to see what you can learn.

— Ben Strawn is a partner and Omeed Azmoudeh is an associate in the trial department of Davis Graham & Stubbs.