Efficiently Addressing Federal Court Backlog and Streamlining Justice in the Post-Pandemic Era
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As the coronavirus shifted from distant possibility to dire reality in March 2020, chief judges in federal courts nationwide acted quickly to stem its spread.
Chief U.S. District Judge James Bredar reluctantly suspended nonemergency hearings and canceled jury trials in Maryland only after its governor announced he was activating the National Guard and closing public schools. At the same time though, Judge Bredar worried his order curtailing court operations would run afoul of criminal defendants’ constitutional rights and lead to a caseload clog.
“Unquestionably when we come out the other side of this event, dockets will be very crowded, and we will need to make up for lost time,” he told Law360 in March 2020.
Now, with his court having returned to normal operations, Judge Bredar says the backlog was manageable.
“It wasn’t as though there was a three-year accumulation of cases, because the pandemic was experienced, at least in our court, very much in waves,” he recently told Law360. “A backlog still accumulated, just not a terrible one.”
In fact, Maryland’s weighted caseload — a statistic the federal judiciary calculates by analyzing each district’s docket for complexity, then dividing the result by the number of allotted judgeships — is lower now than it was before the pandemic. In the year ending on March 31, 2020, there were an average of 426 weighted filings per judgeship. As of March 2023, there were 379.
That reflects a nationwide shift. By the end of March, the U.S. average for weighted caseload was the lowest it’s been in five years.
But even with fewer cases on judges’ plates, the pace of justice has slowed.
By the end of March, civil litigation lasted nearly three months longer than before the pandemic, marking a 29% increase, and criminal felony case durations spiked 64%, taking more than four months longer to resolve, according to new statistics from the Administrative Office of the U.S. Courts.
Though the coronavirus public health emergency has ended, its aftershocks are still being felt in federal courts, leaving both litigants and criminal defendants in a holding pattern. Advocates worry access to justice may depend on what year litigation was filed or when a defendant was arrested.
It’s a phenomenon that defense attorneys like Nellie King have noticed, as criminal clients wait months longer for their day in court amid a “flood and a frenzy to get this backlog cleared.”
“They’re sitting in jail or out on release for extended periods of time,” said King, who practices in West Palm Beach, Florida, and serves as president of the National Association of Criminal Defense Lawyers. “When we have a presumption of innocence, and you can’t clear your name or get back to your family or your work life in a somewhat timely fashion — so that it is not years down the road as far as resolution — then you’re just kind of in limbo.”
In the years leading up to the pandemic, new federal court filings were climbing, with an 18% national uptick between April 2017 and the end of March 2020.
Federal prosecutions fell in 2020, as violent crime dropped 22% compared to 2019, according to data from the Bureau of Justice Statistics. New civil filings spiked in the first year of the pandemic, driven by a dramatic increase in civil personal injury and product liability filings, which more than doubled thanks to multidistrict litigation in Florida over allegedly faulty combat earplugs.
New filings eased back down the following year and have continued to decline. By March, they’d hit their lowest level since 2017.
“Case filings likely decreased during the pandemic because of the perception that courts weren’t effectively open for business and that, temporarily at least, it was not an effective way to resolve disputes in an expeditious manner,” according to Jim Sandman, the former president of the Legal Services Corp., who chaired an American Bar Association task force formed to handle legal needs arising from COVID-19 as the disease began to spread in the U.S.
While attorneys were watching the statute of limitations on time-sensitive cases, they were also putting litigation on hold, according to U.S. District Judge John Tunheim, who from 2015 until last June served as chief judge of the District of Minnesota.
“I heard from lawyers, ‘Well, we’re kind of hanging on to a number of cases. Likely we’ll file them once the court is open again,'” he said. “Now, we were open the whole time. But we were open electronically, really.”
Yet the decline in new filings was “masked by the pandemic,” according to U.S. District Judge F. Dennis Saylor IV, chief judge of the District of Massachusetts.
“There were delays in resolving civil cases, especially big ones that required a lot of attention,” he told Law360. “People couldn’t take depositions, or they’re taking them by video and they’re fighting about that. Everything kind of slipped.”
That’s contributed to an ongoing slowdown, though many federal district courts resumed normal operations a while ago. In the first year of the pandemic, the national average for the duration of a criminal case spiked immediately and has continued to climb over subsequent years. Civil cases, meanwhile, saw a decline in duration over the first year of the pandemic, hit prepandemic levels the following year and, in the 12-month period ending in March, lasted longer than they have in more than two decades.
Judge Tunheim attributes both spikes to long stretches where courthouses were largely closed to in-person proceedings. For example, in his district of Minnesota, trials were canceled from March until September 2020, at which point there were a few criminal trials. One, concerning a mosque bombing, faced delays, including a mid-trial continuance when a juror got COVID. After that, he said, he canceled jury trials again until May 2021.
“The time it takes to resolve a case really had a lot to do with the pandemic,” Judge Tunheim said. “Things just really slowed down, and once they started up again, we went to the oldest cases first. So the newer cases were then taking longer to resolve because we were working on the older cases.”
Defendants in Limbo
Judge Saylor wrestled with his decision to limit court hearings in Massachusetts back in 2020.
“It’s easy to say everything will be postponed,” he told Law360 at the time, “but it’s hard to know what to do about that person who is in jail awaiting trial.”
In the three years since, the wait for a Massachusetts criminal case to be resolved has doubled, from a prepandemic average of just over a year to 25.7 months by the end of March. Before the pandemic, the durations of criminal cases had been modestly decreasing.
Nationally, there has been a similar reversal in how long it takes for a criminal case to reach a verdict or a plea, according to statistics from the Administrative Office of the U.S. Courts. In the years leading up to the pandemic, about half of the 94 federal district courts had seen a decline in the median length of criminal cases. But now, every district has seen a slowdown in felony cases since the year before the pandemic.
Federal felony case slowdowns in Massachusetts were in part the result of pandemic policies. Judges often gave the U.S. Probation Office extra time to file its presentencing reports, and judges were more lenient in granting continuances, according to Robert Farrell, Massachusetts’ clerk of court. He said it also took some time to equip jails with videoconferencing equipment so that defendants could attend hearings virtually.
But the increase in case durations isn’t solely attributable to pandemic slowdowns, according to Judge Saylor. Instead of delays in actual adjudications, the numbers might, at least in part, reflect how slowly courtroom deputies entered judgments after sentencing — a problem that was exacerbated as senior staff retired amid the pandemic and their young replacements learned to do their jobs remotely.
Some of the slowdown is also attributable to changes in the composition of the criminal docket nationally, according to a Federal Judicial Center report on the first two years of the pandemic. For example, the overall share of immigration crimes, which are typically adjudicated quickly, fell from 37% of completed cases on the criminal docket in the year preceding the pandemic, to 25% by the end of its second year. But that doesn’t fully account for the slowdown; even when case durations were analyzed to account for the nature of the alleged offense, the length of time it took drug, firearm, property and even immigration cases all increased during the pandemic.
Resources are also an issue, according to Heather Williams, who leads the Federal Public Defender’s Office for the Eastern District of California, where the time it took felony cases to resolve jumped from about 19 months in the year before the pandemic to about 31 in the year ending in March. She said her office’s staffing budget, which is determined by the district’s weighted caseload, has shrunk from March 2017 to March 2023. Continual cuts to the office’s budget forced her to drop about 10 full-time employees from her trial unit, which now has about 55 staff remaining.
When the coronavirus forced the district to cancel hearings and made it difficult to meet with clients, that worsened the effects of her staffing cuts, Williams said, leading to a bottleneck.
“You have fewer people to handle the cases that are coming in, and it’s taking longer to go ahead and resolve them while we try and figure out this pandemic, and so now things start to clog up,” she said. “You’re limited because it’s harder to go ahead and do investigations. It’s harder to actually get meetings with the clients. And sometimes those conversations were happening by Zoom, because I didn’t allow my staff to go into prison facilities at first because COVID was rampant there.”
Limits on in-person conversations likely slowed cases, Williams said, because “establishing an attorney-client relationship is vital to getting cases resolved.”
King said she’s also noticed a recent exodus from government jobs in both U.S. attorneys’ and public defenders’ offices, as lawyers head to BigLaw firms where the pay is far better.
“That has created a revolving door of prosecutors, meaning the file never really gets reviewed thoroughly before it’s handed off to somebody else and they have to start all over again,” she said. “It’s creating real instability in the institution.”
Even private defense attorneys like King have trouble moving their cases forward, she said, because it’s hard to get prosecutors on the phone to schedule depositions.
Defendants have also delayed their own cases as courts let more people out on pretrial release rather than send them to jails where COVID ran rampant, according to U.S. District Judge Nannette Brown, chief judge of the Eastern District of Louisiana.
“When somebody is out on bond, they’re less likely to be pushing for their case to move forward quickly,” she said. “If they’re out and they are compliant with their conditions, continuances were requested from defendants to give them more time to prepare.”
Delays sometimes worked to defendants’ advantage. Judge Saylor said the wait between hearings often gave people out on pretrial release “the chance to go out and prove themselves” by doing things like finding a job, staying sober or maintaining family ties, factors that the judge said influenced his sentencing decisions.
“I don’t think that the path to justice is moving cases as fast as humanly possible,” Judge Saylor said. “I would call this the Goldilocks issue: You don’t want to be too fast or too slow.”
Aftershocks on the Civil Side
While criminal cases felt the effect of the pandemic bottleneck right from the start, civil cases seem to have experienced a lag. The median time it took a civil case to resolve had been decreasing slightly before 2020 and continued to decline during the first year of the pandemic, going from 9.3 months in the year before the pandemic to 8.6 months in COVID’s first year. The length of a civil case rose to prepandemic levels in the virus’ second year, and then shot up 30% the following year when cases took an average of 12 months to resolve, according to AOUSC numbers.
Civil cases may have been insulated from the early effects of the pandemic, since most such litigation is decided during motion practice or by settlement, and because some litigants opted for bench trials that were conducted virtually, according to Judge Bredar.
“Civil cases, by and large, are resolved without trial, without in-court proceedings. And our law clerks and our judges remained pretty much fully productive and functional right through the pandemic, it’s just that they were often working from home. To the extent that a case is going to be resolved on the papers, there was really no letup whatsoever attributable to COVID,” he said. “People didn’t stop working, they just couldn’t attend to the in-court duties. That impacts the criminal caseload much more.”
So when courts did reopen, they prioritized the criminal docket. This stunted civil trials.
U.S. District Judge Audrey Fleissig, who serves in the Eastern District of Missouri and chaired the Judicial Conference’s Court Administration and Case Management Committee during the pandemic, said that though her district had worked through its trial backlog by late 2021, COVID roadblocks slowed the pace of civil cases.
“Although we were able to conduct hearings and other pretrial proceedings remotely, the lawyers reported that it was very difficult for them to conduct depositions and interviews, to collect medical records, and to conduct other discovery necessary for their civil cases. So the civil cases may have proceeded more slowly,” she said. “If the case was not resolved by court order or by settlement, however, the civil jury trial in our district would have been postponed, as we prioritized criminal cases.”
Even in Minnesota, where courts bucked the national trend, with the wait for a civil case to resolve by court order, settlement or verdict hitting lower levels during pandemic, the time it took for a civil case to go to trial increased from about 29 months at the end of March 2020 to about 40 months as of March 2023.
“On the civil side, we got behind on trials. There’s no question that they weren’t the highest priority once we came out of the pandemic,” Judge Tunheim said, though he added the court kept up with hearings and conferences via Zoom. “It was midyear before we opened up in 2021 for trials, and criminal cases were at the top of the docket going forward until we really caught up on the backlog.”
Another slowdown came from attorneys recovering from the effects of the pandemic, according to Judge Brown. She wondered if continued telework — at the offices of both firms and their clients — might slow the process of gathering discovery and setting depositions. That, combined with the 2021 hurricane season in New Orleans, meant she was more flexible than usual about delaying trial dates.
“In 2022, I feel like lawyers were still adjusting. Things were just opening up. We gave continuances because lawyers could not agree on a time for depositions or lawyers were having difficulty getting information from their clients or from opposing counsel,” she said. “I was giving lawyers — probably last year and up until a few months ago — a little wiggle room if they could show relatively good cause.”
Still, she said, her calendar has started to move along. In the spring of 2022, she had trials almost every week for nearly three months, and only one of them was a criminal case.
Now judges seem to be scheduling cases on a reasonable prepandemic-era trial timeline, according to Dallas litigator Monica Latin, managing partner at Carrington Coleman Sloman & Blumenthal LLP. But, she added, the effects of the pandemic might still be felt later on.
“It will be a while before we know when we pull up to a particular trial date [and] it gets pushed another six months, [if that’s] because of the backlog or might that have happened anyway,” Latin said. “I’ve not felt any kind of drag on the litigation process in the Northern District [of Texas]. I have heard judges talk about the ongoing backlog of COVID-era cases, particularly the criminal docket that always gets priority. So it would stand to reason that the civil cases will get pushed further back just because there was a long period of time where very little could happen.”
The counter-phenomenon of a decrease in new filings likely offset a potentially worse bottleneck and “gave a little breathing room” to tackle the backlog, according to Sandman. Still, he said, “it takes a while for a jolt like that to work its way through the system.”
“I don’t think it will be a long-term problem,” he said, “but I don’t think we’re through it yet.”
Your Mortgage Documents Might be Fake!
Ya think, maybe?
MERS alleges to have registered 71 million mortgages. There were likely another 15-20 million “non-MERS” mortgages…
Prepare to be outraged. Newly obtained filings from this Florida woman’s lawsuit uncover horrifying scheme (Update)
If you know about foreclosure fraud, the mass fabrication of mortgage documents in state courts by banks attempting to foreclose on homeowners, you may have one nagging question: Why did banks have to resort to this illegal scheme? Was it just cheaper to mockup the documents than to provide the real ones? Did banks figure they simply had enough power over regulators, politicians and the courts to get away with it? (They were probably right about that one.)
Thom Hartmann talks with Lynn Szymoniak, Attorney / President and Founder- The Housing Justice Foundation. Website: http://thjf.org/, about her efforts to help those who are getting screwed by the big banks.
If you liked this clip of The Thom Hartmann Program, please do us a big favor and share it with your friends… and hit that “like” button!
A newly unsealed lawsuit, which banks settled in 2012 for $95 million, actually offers a different reason, providing a key answer to one of the persistent riddles of the financial crisis and its aftermath. The lawsuit states that banks resorted to fake documents because they could not legally establish true ownership of the loans when trying to foreclose.
This reality, which banks did not contest but instead settled out of court, means that tens of millions of mortgages in America still lack a legitimate chain of ownership, with implications far into the future. And if Congress, supported by the Obama administration, goes back to the same housing finance system, with the same corrupt private entities who broke the nation’s private property system back in business packaging mortgages, then shame on all of us.
The 2011 lawsuit was filed in U.S. District Court in both North and South Carolina, by a whitecollar fraud specialist named Lynn Szymoniak, on behalf of the federal government, 17 states and three cities. Twenty-eight banks, mortgage servicers and document processing companies are named in the lawsuit, including mega-banks like JPMorgan Chase, Wells Fargo, Citi and Bank of America.
Szymoniak, who fell into foreclosure herself in 2009, researched her own mortgage documents and found massive fraud (for example, one document claimed that Deutsche Bank, listed as the owner of her mortgage, acquired ownership in October 2008, four months after they first filed for foreclosure). She eventually examined tens of thousands of documents, enough to piece together the entire scheme.
A mortgage has two parts: the promissory note (the IOU from the borrower to the lender) and the mortgage, which creates the lien on the home in case of default. During the housing bubble, banks bought loans from originators, and then (in a process known as securitization) enacted a series of transactions that would eventually pool thousands of mortgages into bonds, sold all over the world to public pension funds, state and municipal governments and other investors. A trustee would pool the loans and sell the securities to investors, and the investors would get an annual percentage yield on their money.
In order for the securitization to work, banks purchasing the mortgages had to physically convey the promissory note and the mortgage into the trust. The note had to be endorsed (the way an individual would endorse a check), and handed over to a document custodian for the trust, with a “mortgage assignment” confirming the transfer of ownership. And this had to be done before a 90-day cutoff date, with no grace period beyond that.
Georgetown Law professor Adam Levitin spelled this out in testimony before Congress in 2010: “If mortgages were not properly transferred in the securitization process, then mortgage-backed securities would in fact not be backed by any mortgages whatsoever.”
The lawsuit alleges that these notes, as well as the mortgage assignments, were “never delivered to the mortgage-backed securities trusts,” and that the trustees lied to the SEC and investors about this. As a result, the trusts could not establish ownership of the loan when they went to foreclose, forcing the production of a stream of false documents, signed by “robo-signers,” employees using a bevy of corporate titles for companies that never employed them, to sign documents about which they had little or no knowledge.
Many documents were forged (the suit provides evidence of the signature of one robo-signer, Linda Green, written eight different ways), some were signed by “officers” of companies that went bankrupt years earlier, and dozens of assignments listed as the owner of the loan “Bogus Assignee for Intervening Assignments,” clearly a template that was never changed. One defendant in the case, Lender Processing Services, created masses of false documents on behalf of the banks, often using fake corporate officer titles and forged signatures. This was all done to establish standing to foreclose in courts, which the banks otherwise could not.
Szymoniak stated in her lawsuit that, “Defendants used fraudulent mortgage assignments to conceal that over 1400 MBS trusts, each with mortgages valued at over $1 billion, are missing critical documents,” meaning that at least $1.4 trillion in mortgage-backed securities are, in fact, non-mortgage-backed securities. Because of the strict laws governing of these kinds of securitizations, there’s no way to make the assignments after the fact. Activists have a name for this: “securitization FAIL.”
One smoking gun piece of evidence in the lawsuit concerns a mortgage assignment dated Feb. 9, 2009, after the foreclosure of the mortgage in question was completed. According to the suit, “A typewritten note on the right hand side of the document states: ‘This Assignment of Mortgage was inadvertently not recorded prior to the Final Judgment of Foreclosure… but is now being recorded to clear title.’”
This admission confirms that the mortgage assignment was not made before the closing date of the trust, invalidating ownership. The suit further argued that “the act of fabricating the assignments is evidence that the MBS Trust did not own the notes and/or the mortgage liens for some assets claimed to be in the pool.”
The federal government, states and cities joined the lawsuit under 25 counts of the federal False Claims Act and state-based versions of the law. All of them bought mortgage-backed securities from banks that never conveyed the mortgages or notes to the trusts. The plaintiffs argued that, considering that trustees and servicers had to spend lots of money forging and fabricating documents to establish ownership, they were materially harmed by the subsequent impaired value of the securities. Also, these investors (which include the Treasury Department and the Federal Reserve) paid for the transfer of mortgages to the trusts, yet they were never actually transferred.
Finally, the lawsuit argues that the federal government was harmed by “payments made on mortgage guarantees to Defendants lacking valid notes and assignments of mortgages who were not entitled to demand or receive said payments.”
Despite Szymoniak seeking a trial by jury, the government intervened in the case, and settled part of it at the beginning of 2012, extracting $95 million from the five biggest banks in the suit (Wells Fargo, Bank of America, JPMorgan Chase, Citi and GMAC/Ally Bank). Szymoniak herself was awarded $18 million. But the underlying evidence was never revealed until the case was unsealed last Thursday.
Now that it’s unsealed, Szymoniak, as the named plaintiff, can go forward and prove the case. Along with her legal team (which includes the law firm of Grant & Eisenhoffer, which has recovered more money under the False Claims Act than any firm in the country), Szymoniak can pursue discovery and go to trial against the rest of the named defendants, including HSBC, the Bank of New York Mellon, Deutsche Bank and US Bank.
The expenses of the case, previously borne by the government, now are borne by Szymoniak and her team, but the percentages of recovery funds are also higher. “I’m really glad I was part of collecting this money for the government, and I’m looking forward to going through discovery and collecting the rest of it,” Szymoniak told Salon.