The Impact of COVID-19 and Remote Access on Civil Litigation and Guardianships

By: Duncan Scott Keir – Associate Attorney – Elville and Associates, P.C.

As a civil litigator who has spent his career representing clients before the Maryland State Courts, it is clear to see the impact the COVID-19 pandemic has had on the routine administration of this institution.  Beginning on March 16, 2020, when Judge Barbera, the Administrative Judge for the entire State Court system, first issued the first Administrative Order on Statewide Judiciary Restricted Operations Due to the COVID-19 emergency, the Courts have labored to find new ways to implement the administration of their daily dockets related to guardianship and civil litigation.  Many of these methods are now very familiar, especially the use of Zoom and other video conferencing platforms.

As it has with all of us, the COVID-19 pandemic has meant a lot of changes for clients dealing with civil litigation, guardianship as well as attorneys. Delays of course were some of the most immediate repercussions.  Guardianship and civil litigation cases that usually would take a year took three.  I had several divorce cases that were close to trial when the pandemic hit which ended up being pushed back for another year.  Not only were there delays with scheduling, but also relating to the clerk’s office.  Where many attorneys and staff used to have some idea of who to call to get a specific question answered, or to hopefully push forward a particularly sensitive matter, we could no longer get in touch with anyone.  It was like not knowing how to do your job anymore.  When clients would ask about timelines, I had to admit that I did not know. 

But like everyone else, as time marched forward, so did the Court.  Routine hearings, preliminary matters, and uncontested matters were set via Zoom or other video conferencing platforms.  At the beginning, we got to see judges in polo shirts sitting in their kitchens, and I for one started to see the benefit of transitioning to remote operations for many types of matters. 

Guardianship cases are a clear example of the benefit of remote access.  When clients file a guardianship case for a loved one that is uncontested – when no one objects and all stakeholders support the petitioner as guardian – the final hearing is typically succinct and a routine affair.  Pre-COVID, parties would drive to whatever county Circuit Courthouse, meet their lawyer there, wait around – sometimes for hours – as the Court worked through its docket and eventually spend five minutes answering a few questions before leaving with its Guardianship Order and a word of support from the bench.  The whole matter could take hours – for which I am obliged to bill.  Now, the uncontested guardianship matters are set via Zoom.  In fact, while in the past I typically attended several guardianship hearings per month, I have not attended one in person since 2019.  Now, the parties can sit in their homes or offices while they wait to be called.  I can stay at my desk and work on other matters right up to the time our case is called.  This means the client gets charged less for the same work, and I have more time to attack my caseload. 

In addition, the parties often significantly benefit from a remote hearing because it allows them to maintain their presence in their home during the proceedings.  When a guardianship petition is filed, the Court appoints an attorney for the alleged disabled person (the “ADP”).  This is done in every case.  Court-appointed counsel meets with the ADP and ascertains their wishes, represents their interests, and often acts as their spokesperson as the case moves forward.  If the ADP does not want the guardianship, their counsel can object, ask for a jury trial, or otherwise advocate on their client’s behalf.  However, most guardianships go uncontested.  Parents file guardianships of their disabled children who have turned 18, and adult children file guardianships over their elderly parents who have lost the ability to care for themselves.  In most instances, the need for the guardianship is clear, the petition is well supported by credible medical professionals, and the court-appointed counsel is in agreement that the petitioner should become the guardian. 

Many of the petitioners are also the primary caretakers for their disabled loved ones.  Oftentimes, the ADP is not able to be left alone, and many families struggle to find alternate caregivers while they are out of the home – such as for a court appearance.  The advent of the remote hearing has relieved many caregiving petitioners by allowing them to participate as required by the court in a streamlined and practical way – while remaining present in the home.  It also allows for the ADP to have greater access to the proceedings. By simply sitting next to the Petitioner at the hearing the ADP can view the proceedings, comment as desired, and otherwise be part of the process.

Some petitioners have found benefits in the totally opposite situation.  Many times, especially in the case of a Petitioner who is the child for an elderly or otherwise infirm parent, the parties do not live in the same house – or even in the same state.  In the past, an out of state petitioner would have to travel to Maryland for the five-minute guardianship hearing.  This situation created an enormous burden on many, including time off from work, travel expenses, and the temporal relationship between the time spent in court and the time and expense of travel created a hardship. Further, the Petitioner may themself have physical ailments which make travel very challenging.  The remote hearing has erased many of these issues, causing greater efficiency, lower stress and cost, and allowed for the more efficient administration of these meritorious proceedings.

Attorney Duncan Scott Keir leads Elville and Associates’ litigation department, addressing matters ranging from fiduciary and civil litigation to guardianship and contract real estate. 

Mr. Keir’s professional career reflects a commitment of excellence in representing clients both in and out of the courtroom along with developing key strategic partnerships.  This commitment molds well with Elville and Associates’ ideals of client education, ongoing collaboration with its clients and partners, and compassion in working with clients and their families.

Mr. Keir may be reached at duncan@elvilleassociates.com, or at 443-393-7696 x125.