By Ben Strawn and Omeed Azmoudeh

Law360 (July 30, 2020, 4:44 PM EDT )

Ben Strawn

Omeed Azmoudeh

The COVID-19 pandemic has changed how judges work. Has it also changed how much they work, or, to put a finer point on it, how much work product they generate?

This article investigates that question using data from the Public Access to Court Electronic Records system, better known as PACER, pointing practitioners toward information they can use to better advise clients who are curious about the pandemic's impact on litigation timelines.

Like lawyers, judges are encountering a new swath of potential distractions and efficiencies during the pandemic. The distractions are now familiar: technological snafus, separation from staff, lack of usual office resources such as printing and mailing, closed schools, summer camps, etc., and the general difficulty of focusing on work amid constantly changing circumstances. The efficiencies are also becoming familiar, and include curtailed commutes, fewer in-person events, and stronger focus on the essentials of life and legal practice.

One potential efficiency impacts the judiciary more than others — the trials and hearings in which judges used to spend so much of their time have, for the most part, been canceled, postponed or shifted to a less time-consuming remote format. If any type of lawyer is generating more work product during the COVID-19 pandemic, one might expect it to be judges.

So which impact — the distractions or the efficiencies — is greater? PACER's reporting of written opinions is one source of data for answering that question. We'll focus here on the federal districts listed below, with the first 10 representing districts with the largest caseloads, and the last two included to ensure cross-country coverage.

1. The U.S. District Court for the Southern District of New York;
2. The U.S. District Court for the District of New Jersey;
3. The U.S. District Court for the Eastern District of Louisiana;
4. The U.S. District Court for the Southern District of Ohio;
5. The U.S. District Court for the Northern District of Illinois;
6. The U.S. District Court for the Northern District of California;
7. The U.S. District Court for the Central District of California; 
8. The U.S. District Court for the Northern District of Florida;
9. The U.S. District Court for the Middle District of Florida;
10. The U.S. District Court for the Southern District of Florida; 
11. The U.S. District Court for the Southern District of Texas;
    
12. The U.S. District Court for the Western District of Texas.

The aggregate data across these 12 districts reflects a decline in the amount of judicial work product. In March this year, the number of written opinions was down 11% compared to the average number filed in March of the four previous years. In April, the decline was more dramatic, down 15%, and then in May, down further to 24%.

June showed a slight rebound, with the number of written opinions down 20%. In total, the average number of written opinions was down 18% during these four months in 2020 compared to the average number of written opinions filed in those same four months in the four previous years.

The aggregate decline hides substantial variance between districts, however. For example, the number of written opinions is up 79% in the Western District of Texas and up 34% in the Southern District of Florida from March through June this year compared to those same months in the four previous years. Meanwhile, the number of written opinions is down 41% in the Northern District of California and down 25% in the Northern District of Florida for the same time period.

And the data for some districts varies even within 2020. The District of New Jersey showed a decrease in the number of written opinions in March 2020 compared to the prior four years, but increases for the months of April through June. Conversely, the Central District of California showed a slight uptick in the number of written opinions in March this year, but then decreases in April through June.

Several factors complicate any conclusion based on the PACER written opinions data. The Southern District of New York's data was so anomalous that it is excluded from the aggregations above. In the past four years, the number of written opinions in SDNY has been fairly typical of a large federal district — somewhere in the range of 230 to 450 written opinions per month. Starting in January this year, that number rose to at least 4,400 per month without any obvious explanation.

This SDNY data highlights a key point about investigating written opinions. PACER relies on individual judges to designate whether any particular order should be a "written opinion" in its system. The written opinion measure thus embodies potentially inconsistent and subjective judicial practices. Something clearly changed about how the SDNY's judges designate written opinions. Similarly, it's possible that the pandemic itself is changing how judges designate written opinions in ways that are unknown and unaccounted for here.

Another potential confounding factor is the number of judges. In several districts, the number of judges has changed during the five years considered here. For instance, three of the 13 district judges on the Western District of Texas bench were appointed in 2017 or later. Without knowing more about other factors, like the senior judges' caseloads in that district, it is difficult to say exactly how the higher number of judges affects the number of written opinions. It is certainly possible, though, that more judges means more written opinions, making the pandemic a less relevant factor.

There is at least one other question to ask about the number of written opinions: Does the severity of the COVID-19 pandemic in a given district correlate with the number of written opinions? At quick glance, not really.

The Johns Hopkins Coronavirus Resource Center provides relevant data here. For example, the number of written opinions in the Southern District of Florida has increased during the pandemic, despite Miami-Dade County (where Chief Judge Kevin Michael Moore sits) reporting a total of 4,097 COVID-19 cases per 100,000 people as of July 30, more than double that same stat, on average, for the other 11 federal districts studied.

In other words, a severe pandemic has not stopped the Southern District of Florida from outpacing itself as compared to previous years. In other districts, the severity of the pandemic and the number of written opinions align slightly better with expectations (i.e., decreased written opinions where the pandemic is more severe), but the data does not appear to support a true correlation.

What can lawyers learn from all this? If nothing else, on average, it looks as though litigators and their clients might expect delayed written rulings as well as delayed trials.

But because the aggregate data hides substantial variance between districts, and because PACER's written opinions measure does not account for every variable, lawyers looking to advise their clients on specific cases should seek out more specific information. The various proprietary research platforms (such as those offered by LexisNexis, Westlaw and Bloomberg) may be more helpful than PACER for that level of analysis as many of them allow practitioners to readily filter data by district, judge, case type and motion type.

The COVID-19 pandemic has slowed down the world, the legal practice and perhaps the bench. But as with many things COVID-19-related, the effects are difficult to comprehend.

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Ben Strawn is a partner and Omeed Azmoudeh is an associate at Davis Graham & Stubbs LLP.

The authors wish to thank Andrea Hamilton, Keslie Kandt and Marlana Harpelin in the firm's research and knowledge services department for their assistance with this article.

Law360 is owned by LexisNexis Legal & Professional, a RELX Group company.

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