John Amabile David Pardue and Todd Sprinkle. (Courtesy photos)

On April 6, Georgia Chief Justice Harold Melton issued an order extending the declaration of a judicial emergency in the state of Georgia through and including May 13. In addition to extending the stay of business and civil litigation pending in Georgia state courts for another 30 days, the extension order adds some nuance that must be taken into consideration.

Initially, the extension order does in fact toll and extend deadlines until the end of the day on May 13. This includes, among other things, all deadlines imposed by court orders, all deadlines to file appeals, responses to discovery, and any statute of limitation. For all of these deadlines (and more), all parties will have after May 13 as much time to make appropriate filings as existed as of March 14. For example, if a deadline to respond to a motion was April 1, it is now June 1.

But the extension order does seek to shift expectations related to nonessential judicial business. Whereas the original order was widely considered to be a stay on all nonessential judicial business, the extension order does not quite go so far. The extension order states that courts and litigants are "encouraged" to proceed to the extent "feasible and consistent with public health guidance, for example through the use of teleconferences and videoconferences, to reduce backlogs when the judicial emergency ends." Whether this is a response to what courts were already doing or seeks to change litigants behavior may be open to debate. Nonetheless, courts are, for example, holding video hearings on emergency motions such as those for an interlocutory injunction. Some judges are also asking parties for status reports on pending motions and for scheduling orders to move cases forward as much as possible and as soon as possible after the judicial emergency is lifted.

The second notable difference in the extension order is the court's not-so-gentle chiding that "all lawyers are reminded of their obligations of professionalism." While impossible to know what exactly Chief Justice Melton had in mind with this language, it is also fair to say he would not have so stated had he not heard of lawyer conduct that gave him concern.

It is also worth noting that the extension order does not eliminate some of the questions that have arisen since the entry of the original declaration of a judicial emergency. How, for example, are court ordered deadlines that fall outside the period of judicial emergency to be addressed? If there is a scheduling order in place that states discovery expires on Oct. 1, 2020, is that deadline automatically postponed until Dec. 1? What if there is a schedule to file motions and responses with deadlines outside the period of emergency?  It would seem risky to assume that such deadlines are automatically extended and it is likely courts will find themselves inundated with scheduling questions once the judicial emergency is lifted.

The impact on business with litigation pending or anticipated in Georgia courts will continue to be dramatic, not only through the period of judicial emergency but for a measurable period thereafter. Despite the encouragement to move nonessential business forward where possible, the time for parties to respond to most deadlines remains tolled, as a matter of law, until mid-May. Responses to motions and discovery requests served in mid-March are not now due until mid-June. The time to answer complaints filed after March 14 does not even begin to run until May 14, at the earliest. Moreover, the court's concern about building backlogs within the court system is legitimate. Clearing nonessential felony and family matters will likely consume superior courts for a measurable period, further delaying civil matters pending in those courts. Even just focusing on business disputes, it is easy to see how delaying all cases for 60 or more days will create a clog in the system that will need to be cleared. Trials, already difficult to schedule, may be postponed many months.

The impact of the judicial emergency will also be felt beyond the courthouse doors. Will the backlog of cases lead parties to seek other methods of alternative dispute resolution such as arbitration? Certainly, business entities who want their dispute resolved expeditiously would have to consider ADR options. Will parties be more likely to settle their cases during this period of judicial emergency? The Daily Report has noted that parties are using this down period to at least explore settlement options.

It also will be interesting to see how the nature of some aspects of litigation may permanently change. Now that we have experienced nonevidentiary hearings done remotely that, for the most part, work sufficiently, will courts seek to use video hearings even after the emergency period? What about video depositions or even mediations?  Many of us will continue to believe there is no substitute for face-to-face, in-person interactions. Others may seek to eliminate inefficiencies by promoting remote communications.

Whatever one's personal views, what is indisputable is that the Supreme Court's declaration of a judicial emergency will be impactful on the way business litigation is pursued in Georgia courts, both in the short and the long term.

John Amabile, David Pardue and Todd Sprinkle are litigators in Parker Poe's Atlanta office.