By Amy Lee Rosen

Law360 (June 18, 2020, 6:01 PM EDT ) Law360 recently asked U.S. Tax Court Chief Judge Maurice Foley and Judge Cary Pugh about the adjustments they and the court have had to make due to the COVID-19 pandemic, such as working remotely and preparing to hold trials online.

The Tax Court in March closed its building to the public and canceled in-person trial sessions and announced earlier this month it would conduct remote proceedings via teleconference during its fall trial session.

Here, the judges discuss how the court has shifted its operations due to the novel coronavirus and what's in store for the future.

What is a normal day like for you now as you work from home?

Judge Foley: My day starts later because there's no commute — but I still eat my oatmeal! The biggest difference is that once my day starts, there aren't many natural break points. I transition from Zoom calls to emails and to working on the computer well into the evening. It's a much longer day.

I have a home office [and] like many others, we have had groceries and food delivered. I haven't put gas in my car for two months.

In addition to my regular duties, the clerk of the court and I are managing the more complicated logistics of court operations: opinions, IT issues, practitioner discipline issues … all the things the chief judge is responsible for continue. And now that we are operating under our continuity-of-operations plan, there are innumerable other issues relating to court management, case processing and the scheduling of remote trial sessions that need my attention.

Judge Pugh: Judges are used to working remotely while we're out on session. When I'm out on a trial session, I'm still working remotely or working in D.C. from my chambers office. So that's not unusual for a particular judge.

But different judges have different practices. I came from private practice, so I'm used to working at all hours. And if I have to take care of personal business at 9 a.m. or 10 a.m. then I might work later because I can. Remote technology allows us to do that.

I have been in [the Tax Court building], but I'm not routinely going to the court building. Overall, not much has changed. We're processing orders. I'm working on opinions as I did before. I work with law clerks as I did before. I work with other judges as I did before.

On a personal level, how have you been coping with social distancing?

Judge Foley: I am very blessed to have a great quarantine partner.

As for social distancing, I recently celebrated a milestone birthday and was able to have a Zoom party. The experience was both a great way to mark the occasion and a reminder that if my nearly 90-year-old mother was able to successfully navigate the technology, everyone should be able to make the adjustment to online tools. 

Judge Pugh: My family is fine. The social distancing is challenging on an emotional level. It's a stressful time. I have a mother who is at home and I have someone come in once a day to help out. But all of it has been weird. Who knew you'd think the grocery store is a stress-inducing environment?

I somehow managed to procure a Peloton right as they were changing their delivery. I canceled several court sessions, one or two ski trips, but I am managing to go out and go fishing because that's naturally socially isolating. You're lucky if you get closer than six feet to a fish.

It's stressful because you have to be careful around family members and other people. And I can't go to church. Lots of things are lost in this but I am fortunate I'm still physically healthy and able to go outside.

The Tax Court is predominately a paper-based court system. What has it been like trying to transition an entire court to remote work? What have been some of the challenges, how did you overcome them and what issues still remain?

Judge Foley: After the 2018-2019 partial government shutdown, we did a lot of work on our continuity-of-operations planning. We thought about what portions of court business could continue offsite and what operations would be required to be conducted in our D.C. headquarters. While each office of the court had a head start in shifting to remote operations, it was a Herculean task.

The biggest challenge was the speed with which we shifted to remote operations. It was not quite overnight, but pretty close. We had to do some shuffling of resources to ensure more employees had what they needed. We also had to deal with limitations on resources. For example, we had a limited number of licenses for programs used to access our system remotely. 

For ongoing cases, most things needed by the judges and staff can be accessed by computer. We have been encouraging registration for eAccess so that petitioners can have that access too. Once the new case management system is deployed later this year, even new cases will be accessible electronically because petitions will not be required to be filed on paper.

I was surprised at how quickly we were able to transition but not at all surprised at how well our employees were able to maintain integrated and collaborative work processes even though they were no longer working in the same physical space. 

How is COVID-19, if at all, affecting the implementation of the electronic case management system? What's the current status of this project and has it been delayed because of coronavirus?

Judge Foley: The EF-CMS has been a little delayed as our IT team needed to focus on the challenge of getting everyone onto remote working. But the pandemic has really highlighted the need for the change to the new system, and we expect the rollout later this year.

In the time the court has been closed, are there any policies that have been put in place that you may want to keep? 

Judge Foley: There are certain functions where efficiency may be increased from teleworking, and there are others where a physical presence is really optimal. Each department is different. We continue to evaluate where the efficiencies are and, even when this pandemic is over, I expect that there will be an increase in the amount of teleworking. It provides a benefit to both the court and employees.

In addition, we are now receiving electronically submitted applications for admission to practice and fulfilling copy requests electronically. Both may continue after we reopen the building to the public. 

As you know, we plan to move to remote proceedings for the fall trial sessions. Administrative Order 2020-02 provides a lot of information about the basic expectations.

Judge Pugh: I think there are advantages to the court in learning how to work remotely, because in D.C. stuff happens. We had the government shutdown when the employees couldn't work and that meant the clerks weren't working but the judges were. But you may also have snow days, etc., so any time we learn to do our jobs better and more efficiently is a good thing. Getting technology really dialed-in is a good thing. Having the option for the employee so they can work from home efficiently is good.

But I think there's a value to being in-person. So I'd want folks working in-person [because] I think there's an ease of communication that's lost remotely. But it's not impossible to work remotely and we've proven that because we've gotten plenty done.

The physical building may be closed but the court is doing our level best to get things done as quickly as possible.

Has your new chief information officer, Michael McVicker, helped to solve any of the technological issues?

Judge Foley: It was perfect timing to bring him on board, and his seasoned experience increased our level of expertise, comfort and readiness to transition to both this new way of working and the case management system.

Judge Pugh: Obviously we're consulting with our technology people. One thing we wanted to make sure is whatever technology used — and we selected Zoom — had the capability we thought was appropriate. Zoom has breakout rooms and has video. That's good and other courts are using Zoom and judges are able to manage Zoom.

Judges are not always the most technologically savvy, but if other courts can use [Zoom] we can use it too. Technology won't stop the court from doing its job.

If there are problems [with Zoom] we need to identify the problems and if parties have problems we need to figure them out. Part of the reason for us to see what other courts are doing is to see how other courts have handled problems that have come up. I would anticipate we'll get plenty of feedback as it's working and we'll be doing what we can to improve it.

Are we going to run into the dreaded screen freezes and glitches? Yes, but we'll deal with it. 

What will the court do after the U.S. Tax Court building reopens to make sure people have access to the judicial system? Especially if they cannot pay the tax liability up front and file in federal court, which may be their only other remaining option?

Judge Foley: The new case management system will allow petitions to be filed electronically. In addition, it has a more user-friendly and intuitive interface. We will also launch a new website this summer. The new website will be mobile-friendly and more readily accessible on a smartphone or tablet. After the new case management system is deployed, the interface with the system also will be mobile-friendly.

Judge Pugh: We spent a lot of time on this. We want to get it right. We know there's going to be a need to be flexible going forward and to be able to exercise discretion. We're not going to let technology be the impediment, which is why we want to continue using the phone, which is what we already do and is still available. A lot is changing but a lot isn't changing.

What's the most important message you want to give to both taxpayers and tax attorneys about the continued operations of the Tax Court? 

Judge Foley: We are open for business! We canceled some sessions but still expect parties to work together to narrow issues in cases, settle cases, or otherwise prepare their cases for trial. We have not stopped working. The judges are still conducting conference calls, deciding motions, issuing opinions and all the other things they normally do.

We will have a fall calendar, but it will be very different. Before deciding to move to remote proceedings, the court set up a remote proceedings working group. The working group is comprised of judges, legal and procedural staff, and IT staff. It focused on developing the best way to administer justice during the current pandemic and consulted with stakeholders, including the IRS, American Bar Association and low-income taxpayer clinics. The best ideas will remain in our "toolbox," ready to deploy, if or when we need them in the future.

These interviews have been condensed and edited. 

--Editing by Tim Ruel and Joyce Laskowski.

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