 Hello. Welcome to the Judge Ben Show. My name is Ben Joseph. I'm a retired Vermont Superior Court Judge. And this is one of the series of programs I've been doing about the legal system and issues that concern us here in Vermont. I'm very happy to tell you that my guest today is Paul Jarvis, one of the leading trial lawyers in the state. Paul's been around for how many years you've been practicing? Well, I was admitted in 72, so just shy of 50 years, 49 years. Oh my goodness. And you only look 65. I wish that were true. And what firm are you with now? I'm Jarvis MacArthur Williams. Okay. I really was hoping we could have a nice talk today about the effect of the pandemic on the court system. And of course, that's a big issue. And part of it is the use of this remote business. Have you been dealing with that in your practice? Yes. It's difficult, although getting a little bit better. I started out really not liking it at all primarily because, well, I have my clients come to my office. Even during the pandemic, I'm not going to do a remote case with any testimony without my client present. So I can consult with he or she and they can ask whatever questions they have. Most people, you know, have never been to court. It's a strange experience for them. And they need to interact with their lawyer. You know, zooming people in for a conference or a contested hearing just doesn't do it for me. I need my client there. I need my client's input. And I need to be able to consult with them during a hearing. The other problem with it is is you can't, you don't have the other side in the same building most of the time. And as you know, over the years, that's how most of our business gets done is the ability to communicate. And you've got no ability to communicate on a remote setting or a Zoom setting. I just want to be sure that the audience can understand what remote and Zoom means. Can you explain just how that operates? Well, I treat them as one in the same, basically. It's just basically a video hookup where everybody is hooked up to various screens and you can see the people on the other side. You can see the judges. You can hear them. They can hear you. You can mute your screen and talk to your client. That's why I like my client there. So I can do that. I was about to say that, you know, I do for some hearings, it's worked out very well for status conferences and whatever. I don't have to drive to Lamoille or Grand Isle, you know, for a five-minute hearing. I can do a status conference very quickly and it usually doesn't involve my client's input. The court just trying to decide or trying to find out where the parties are and if the court can be of any help in assisting the case moving on. But so it's there are pluses and minuses, but I don't like to do hearings by Zoom without my client there and I wouldn't do them without my client there. My impression has been that things don't get resolved as quickly if you're not meeting with the other side. That's exactly right. It's very hard. It's very hard. And, you know, it's hard. The other side, off times, are working remotely and if you don't have their cell phone, you know, you can leave a message at their office and who knows one if they'll get it or when they'll get it. So it's made it very, very difficult. A lot of the attorney's idea was have been very good about giving me their cell phones and they certainly have mine. So we can communicate without leaving a message on a voicemail. It won't be answered for months, but it's been difficult and it's been difficult because you don't have the personal interaction with your adversary. And, you know, you can you who knows him when you're when you're in a room with somebody, you can sense what they like and what they don't like. And you can follow up with, well, if you don't like it that way, let's try this. And it works. And, you know, when they're Zooming in and you're having a remote conversation, it's very difficult to do. I do like not driving the Grand Isle in the Moyle, even though I like the people there. You'll be welcome in Grand Isle. I enjoy going to Grand Isle, but not for a five minute status conference. Well, I understand. Well, it's a beautiful place. I live in North Europe. Yeah. Yeah. Yeah. It's a beautiful drive up there, too. Yeah. All right. It is. It is. Time is valuable. So if you can if you can do a five minute hearing in five minutes, yeah, it helps. But does the over there is the effect of this take take it make it more difficult to resolve a case to settle a case? Yes, it makes it very, very difficult. So things drag on. Yeah, things drag on. And you can't, you know, you emailing back and forth. You don't have a sense of your adversary or your I get my clients in the office. So right from the beginning, I had my clients come in. It's because I don't think I can help them effectively if I can't hear what they need. And I can't sense what the problems are. But you can't when you're dealing with an adversary or somebody on the other side, you don't get that sense. Do you do civil cases as well as criminal cases? Yes, I do. And is that I understand the priorities are family, criminal, civil. So the civil cases come less than they are they dragging on? Yeah, I've been the civil court along. I don't do. I don't have an extensive civil practice, but I, you know, evictions, things like that just were dead. Take a long time. Yeah. Well, it didn't happen. You know, it's a two edged sword. I mean, people don't have the money to pay their rent, but landlords don't have the money to pay their mortgage. So it was difficult. I bet. And, you know, I think in Vermont, and this is my personal opinion, not many people, I'm sorry, not many people agree with me. I think we overreacted and shutting down so completely and so quickly. You know, we could have gone to Zoom meetings right off the bat, although I don't know that anybody expected the pandemic to drag on the way it has. So, you know, it's hard to say that they made a mistake shutting down, but you know, we could have been doing Zoom meetings a long time ago and kept things going for a long time. Nothing happened. I mean, nothing happened. Was that because of a lack of judges? No, it was just that everything was shut down. Unbelievable. Yeah, it was unbelievable. You know, people have constitutional rights to speedy trial and access to the court. Access to the courts in the Vermont Constitution. I just read a good history book by Judge Mello, Moses Malone, Moses Robinson, and the founding of Vermont. And that was one of the things they fought over when they were writing our Constitution. No kidding. It was access to the courts by all people. And they, one faction wanted to take that out of our Constitution. And fortunately, Moses Robinson and his cohorts. You're a basketball fan, I think. Yes. That's why you said Moses Malone. Yeah, that's exactly right. That's exactly right. They fought very hard to have a ground up democracy where people have access to the courts and they would not take it out. And that's, you know, it's always been in our Constitution. And, you know, pandemics don't suspend the Constitution. I would hope. You just have to figure out a way to guarantee that access. Yeah. And I think, you know, we could have started Zooming a lot earlier. I mean, I'm, you know, it's hard to be critical because none of us knew what was going on. Zooming means that both sides are on the same TV monitor. Right, right. So you're on the Internet. Right. And you can talk to each other. But you're not, you're not, you're not in the room, so you don't risk exposing or exposure. And I think we could have done that sooner, but it's hard to second guess. I mean, but we do have a Constitution that guarantees everybody access to the court. And, you know, I'd read Judge Mel's book if I were you. I will do, I will certainly do that. I will certainly do that. Are there, is the remote to Zoom system being used for pretrial hearings? Yes. And that works in the beginning, you know, when you're trying to schedule depositions and things of that nature, you don't, you don't, you just basically picking a time frame to manage the various steps of the court proceeding. So it works well for that kind of thing, but not for contested hearings. I just, well, it works for me better because I have clients in my office. So I can, I can confer. I can ask questions. We can strategize. So it does, it does work, but you, you lose the opportunity to negotiate and resolve a case. And many, you know, you know, most of our cases are resolved by negotiation. I mean, we couldn't try anywhere near 100% of our cases. Oh, I understand. But I mean, the jury trial thing, is that, what effect, is that an effect on your practice, not being able to have jury trials? I try to settle everything. So it hasn't a huge effect. But, but it does have an effect in that without a deadline, you know, we're going to go to jury, you don't get your best give and take, frankly. That's interesting. If you have. I hadn't heard that before, but that's very perceptive, I think. Well, you just, you know, if you know nothing's going to happen, you just mouth some meaning of phrases and get to the next time. But the thing that bothers me is, I think there's kind of a general, general perception that the jury trials are a waste of time. You know, the jury said that everybody's guilty and it doesn't matter if they have to sit in jail for years before they come to trial. Well, that's just not our system of justice. And it's not right. I hope not. And, you know, everybody's entitled to a trial if they want one. And, you know, sometimes it's, there are legitimate issues that require a trial. And everybody is entitled to a trial if they want one. Not always the best approach. All right. You know, you have to, you have to weigh the evidence, you have to weigh the consequences and you and your client make a decision as to how you're going to proceed. And I think jury trials play an important function for both sides. Well, when I was a public defender here for five years, I tried 34 jury trials. And there were, no, 34 jury trials. And there were 15 acquittals in that number. And two missed trials. It's a one half. Well, that's a good record. Yeah. Well, I think it's, thank you. But I think the point of it is, it's not a waste of time. You know, it's an important part of the system. And, you know, I've tried cases that I didn't think I could win in one cases. I didn't think I could lose and lost. So you just, you don't know. You won in front of me. But, you know, people have that right and they have a right to 12 independent citizens judge their case. I mean, people say, how can you represent somebody who's guilty of murder? And I said, that's not my function in the system. My function is to advocate. And the prosecution's function, well, is to advocate, but also to weigh the evidence. You don't want a prosecutor who's prosecuting somebody they don't think is guilty. But, you know, you have two, it's an adversarial system. You have two people presenting the facts and the best light for their side and 12 independent jurors make a decision. That's a very good system. Well, you know, I had a case in front of me when I was sitting as a judge, where this young black teacher in his 30s was accused of sexual assault on a white teenager. And it was a jury trial. All white jury. And the jurors took the case. We tried the whole case. And two hours later, the jury came back and acquitted this guy. And I've often thought that probably wouldn't have happened in Mississippi, but it's a real compliment to Vermont. To the way the system works is that there are times when an acquittal is appropriate. And I just, it's discouraging because I hear people talking about this as if it's a waste of time. Certainly not a waste of time. Certainly not a waste of time. No, no, no. I agree. And often, you know, I think, well, you talk about settling cases, I think the prospect of a jury trial often leads to settlement. Absolutely does. It gives you a deadline. You know, you have to present your best case, make your best argument, and make a judgment about whether a jury's going to help in your particular case. And the prosecution's got to do the same thing. So there are cases that I think they go to trial and settle right at the trial? Oh, yeah, absolutely. Or, you know, our system, we usually have a pre-trial with a jury drawing a couple of days. So it's a real deadline and you have to assess your case and be ready to go to trial. And if you're not, it's not good. Oh, God. The word odyssey comes up once in a while. Can you just explain what that is there? Well, I'm not a hundred percent sure what it is or how it works. You just practice here, right? Yeah. Well, it's a system that I think of Justice Dooley tried to put in numbers of years ago, and it didn't work. So they gave up on it. And they had the pandemic with very few cases being heard. So I guess somebody made the decision to try to sneak it under the radar. And that's what they did. And it's... What is it? Well, it's just a system of filing and access to the court documents and the court system. You can't, you don't mail in a complaint in a divorce case or a civil suit and have the sheriff serve. Well, the sheriff serves it, but you file it on odyssey. Whether it gets filed or not, sometimes you don't know. And, you know, it's a difficult system for the clerks to operate. And, you know, things get misplaced. You're supposed to get a notice when something is filed by the other side. It doesn't always happen. It's a difficult system. There's one thing I like about it, and that is that we, as lawyers, can access the court records. So once you enter an appearance, you can go look at all the documents. But to get the document filed, I have friends who wanted to do their own divorce and they mailed it in a couple of months ago. I've heard absolutely nothing. And they've heard nothing? Nothing. It's got to be entered in Zoom or it doesn't exist in the court system. I mean, it really worries me because it's going to affect pro se litigation. You know, you talk about access to the court. You know, it's almost like you can't have access unless you have a lawyer, a young lawyer, because the older lawyers, you know, off-times are not familiar with how to use it. I've got good young assistants who walk me through it. But if I had to do it myself, it would be, I suppose I'd learn it. But, you know, it would be difficult. And I worry that it's going to deny access to the courts, people who aren't computer savvy or don't want to be. I mean, you ought to be able to walk in the building and say, here's my complaint. I want to file it. Here's my, you know, my $90 filing fee or whatever it is. But you really can't do it. And there are lawyers out there who are thinking of giving up the practice because they can't negotiate the system. Oh, that's ugly. It's ugly. It really is ugly. And, you know, you talk about denial or access to the courts. It's really created a problem, I think. And I think it's going to, it's going to get worse as the system goes on. I just don't... Well, do you, do you, what about judicial resources? Do you think there'll be enough judges available to go back to the way we traditionally did things here? To go back to what? The way we did things here before the pandemic. Yeah. Yeah, I think there, I think there are enough judges. There's going to be a backlog that we have to work through. I was talking to one prosecutor out of Chittenden County who said, I just got a letter from the court's administrator's office saying, I better be prepared for night court and working weekends. And, you know, that's not right. Oh, the lawyer has to be ready for night court? That's what, that's what his... And working weekends? Yeah, from the court administrator's office. I mean, we got to get through it and we will get through it, but not by on the backs of the lawyers and the litigants making them, you know, work nights and weekends. They've forever talked about night court, which is in our system a horrible idea, but... Is that being done at all? No, no, no, but it raises his ugly head every now and then. But I think we have enough judges. We just have to pay attention to experience and move it along. That's all. We have good lawyers and good judges in Vermont and we just have to... Everybody has to pitch in and do their job and it'll work. It'll work a lot better than working seven days a week, 24-7. That's going to just leave everybody ugly. That's why the first three letters about us are odd. Yeah, and it's a system that really, they tried and they couldn't make it work. And they've tried again and a lot of fits and starts. I'm not sure if they've got all the bugs out yet. And it really is going to make it difficult for people to access the system, which is a crying shame. Well, the pros and litigant must be up against it. Yeah, like I said, I've got friends who try to do their divorce without lawyers. It was simple divorce. They agreed. You think you'd walk in, file a paperwork and walk out with your divorce, but it's disappeared. Well, the IDN Civil Court, someone filing something in visitation or a family court issue without an attorney, and it must be a very difficult thing. It is a difficult thing. We file stuff for lawyers on occasion who aren't familiar with the system. Then I get a call from the court, are you the attorney or is the other person the attorney? I'm not the attorney. I'm just trying to help out here. Yeah. I'm trying to get somebody into the system that they should have access to. Well, what if anything do you think should be done in the near future to help make this better? Is there something you think could help? With Odyssey? Yeah, I don't know. How about just the idea of the remote business? Well, I think they should keep the remote business for status conferences and things that don't involve contested matters and then open the courts for contested. But I remember having status conferences where all of a sudden the case could resolve because it was called for status. That's true. And you look at the attorneys and you say, well, what about this and what about that? Would you guys like to talk? And I could see things resolve. Yeah. And that helps when the judge is willing to do that, willing to say, look, seems settable to me. What are you guys talking about? And there's no question that in-person meeting and in-person negotiation, but when you've got a status conference early on, they want to know what the discovery schedule is. It's too early to settle it. But when you get closer to trial, having hands on and having the judge in the room saying... Well, when you get closer to trial, each idea has a better idea of what the case is about. That's right. That's right. That's right. And that's when I say, you know, status conferences being zoomed or WebEx, whatever you want to call it. I'm talking about early on in the case. And then, you know, when you get into it and both sides know what their case is, it's very beneficial to... Oh, I just think you're going to do much more if it's person to person. Yeah. It's like the testimony, the nonverbal parts of testimony are important. You know, you kind of get a feel for how this person is going to come across. That's what we were saying earlier. You know, even your client, your adversary, they look at you when you say something and you know you're on the wrong track. But you can adjust when you see that look and take another attack and see if you can't resolve the matter. It's going to be difficult. It's going to be difficult. Well, how much longer do you think this is going to go on? Oh, it's going to go on longer than I anticipated when it started. I think in Chittenden, they're talking about September, October, starting with juries. I'm not sure how that's going to work. I think it's just a trial and error and seeing if they can make people feel safe enough to do it. And that gets me back to the beginning where I thought in Vermont we overreacted in the very beginning anyway. I think the governor's exercise of his emergency powers existed too long and I actually drafted a suit to challenge. I had some discussions with the attorney general to the exercise of emergency powers and had expert witnesses ready to testify and then things calmed down. So I decided not to file it and then we have a bad fall and winter. History will tell us what we did right and wrong, but I think we overreacted and we closed down too much too soon. Well, I worry about the family custody. Some of those things are very important to get resolved. They involve domestic violence, they involve all kinds of problems for kids and the delays in getting those things resolved. In cases like that, you need to present the facts of the judge, get a decision, and most of the time the litigants can live with it. What they can't live with is the uncertainty. I don't know when I'm going to see my child. I don't know under what circumstances, but if you tell them this is what the judge said, they can live with it for the most part. I mean, you know, some litigants can't, but they need an answer. Most litigants need an answer and they'll move on. Well, Paul, it's been great to talk to you. Good to talk to you, it always is. Read that book. Nice to be able to shake hands again, isn't it? Yes, it is. I know, I still hesitate on occasion reaching out my hand and say, oh, I'm going to start right now. I guarantee you, I washed my hands today. Thank you for looking in.