International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

Special Report


Preparing a Court for the Aftermath of a Disaster

Netta Squires
By: Netta Squires, J.D., Senior Law and Policy Analyst, University of Maryland Center for Health and Homeland Security

There is no such thing as a disaster-free zone. While no plan can guarantee avoiding destruction, injury, or even deaths from a hurricane, flood, fire, or act of terrorism, the magnitude of a disaster can be greatly minimized by developing a thorough plan. Courts and judges play a central role in a functioning society. It is imperative, therefore, that even during the worst of disasters that courts continue operating with as little disruption as possible. Besides the cascade of delays in already overflowing dockets that could ensue from a closed or malfunctioning court house, human rights and due process issues may arise. As the gatekeepers of the rule of law, judges and courts must maintain the ability to continue functioning amidst chaos, and to maintain society’s trust in the judicial system.

There are numerous examples of devastating manmade and natural disasters disrupting the court systems in the United States. The terrorist attacks of September 11th, 2001, closed down the U.S. Court of Appeals for the Second Circuit and the U.S. District and Bankruptcy Courts for the Southern District of New York. Shortly after, the U.S. Supreme Court was closed down (for the first time since its opening in 1935) due to an anthrax contamination within the postal service. The Court, however, was able to continue operating by hearing arguments in another location.

Despite the vast increase in focus on emergency preparedness in courts following September 11, Hurricanes Katrina and Rita in 2005 caused unprecedented devastation across the gulf region, resulting in the closing and relocation of the U.S. Court of Appeals for the Fifth Circuit and the U.S. District Courts for the Eastern District of Louisiana and the Southern District of Mississippi, as well as many other local courts.[1] Similar manmade and natural disasters regularly occur worldwide.

To succeed in reopening rapidly after a disaster, courts must implement an effective Continuity of Operations Plan (“COOP”) and an Emergency Response Plan (“ERP”). These plans should be based on a comprehensive and thorough risk assessment, be directed by court leadership, and be routinely practiced by all.

In assessing the risk, a court must consider an array of concerns such as its geographical location, the physical design of courthouse, employee safety during a disaster, and how to manage access to data and communications systems.  The court should create policies that balance safety and security requirements with public access. A basic method to prioritize emergency-management needs assesses both the most likely and the most injurious events that could disrupt the court’s mission and essential function of administering justice.

For example, a category five hurricane in the U.S., such as Hurricane Katrina, that causes severe devastation (arguably partially natural and partly manmade) is considered a low-probability yet high-consequence event. That means that although the event has a low probability of occurring, the effects of the disaster have the potential to be so grave that planning is necessary and COOP and ERP should be in place.  A category five hurricane in another country, however, may be rated quite differently—as a high probability-high consequence event. That is because risk assessment depends on numerous variables such as geographical location, population density, infrastructure, preparedness, and response capabilities.

Assessing risk in Taiwan, for example, would vary greatly from assessing risk in the U.S. According to a 2005 World Bank report entitled Natural Disaster Hotspots A Global Risk Analysis , Taiwan was noted as “the most vulnerable [country] to natural hazards on Earth,” and is also one of the most densely populated countries in the world. [2]  Additionally, deficient public policy and insufficient government action in Taiwan, including lack of building codes or substandard construction, increases that country’s vulnerability. When Taiwan was struck by the Chi-Chi earthquake in September 1999, for example, many public buildings, including courthouses and government offices, collapsed because of inadequate seismic construction. The toll was worsened by the then-existing inadequate plans that resulted in inaccessibility and isolation of the impacted area for weeks after the earthquake.

Risk usually is determined by discussions among key court leaders. For planning purposes, determining the probability of a damaging event occurring is more important than trying to narrow down the specific type of event that might occur. Plans are living documents that must be routinely updated and exercised. There are many good templates to follow. However, it is necessary for each court to tailor the plan to its specific needs and capabilities. Each court should have are an ERP and a COOP.

In broad terms, an ERP focuses on preserving public and employee safety and security. It also addresses immediate response practices as a disaster is actually occurring. For example, an ERP would provide evacuation or shelter-in-place protocols in case of an active shooter, fire, or tornado.  Whereas a COOP is a comprehensive guide that ensures continuity of the court’s primary mission essential functions during a wide range of emergencies and disasters. While most courts already have some form of an ERP, this is not the case when it comes to continuity plans. This article, therefore, highlights some of the key components of a COOP including creating leadership, setting up adequate communication and data backup, prioritizing functions, and pre-designating alternate worksites.

A COOP requires consultation with all of the court’s key internal stakeholders and a dialogue with external partners. Usually, a COOP addresses situations that threaten the courthouse or court-related functions. An effective COOP establishes practices and procedures to quickly deploy pre-designated personnel, equipment, vital records, and supporting hardware and software to an alternative site to sustain organizational operations for up to 30 days.[3] Additionally, it describes the resumption of normal operations after the emergency has ended.

Recently, COOP have addressed the impact that a pandemic might have on normal court operations. In such a scenario, even though the court itself might remain intact, regular activities could be suspended for up to 90 days due to lack of personnel.[4] Jury duty,


prisoner transportation, and mail delivery could be affected by quarantines or sickness. In such a case, only certain parts of a COOP might be activated, such as telework capabilities.

A solid COOP coordinates with representatives from other justice-system sectors such as the district attorney and public defender offices, bar associations, probation, and corrections. It addresses areas in which these agencies intersect with the court. Additionally, the planning process involves agents of law enforcement, emergency agencies, and other government agencies (e.g., public health) involved in coordinating community emergency preparedness.

Influential court leaders are crucial in setting the tone for effective emergency management. For local courts, that means the presiding or chief judge should emphasize the importance of emergency planning. The chief judge should spearhead the participation of other judges and court personnel by designating staff and other resources to the planning process. In the post-9/11 period, for instance, New York’s Court of Appeals’ Chief Judge Judith Kaye and Chief Administrative Judge Jonathan Lippman’s inspirational court leadership united representatives from all of the court community to work together to reopen the courts.[5] Similarly, at the request of Chief Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit, that court held an emergency-planning workshop to better prepare for the safety of those working and visiting the building.[6] Of course court managers, clerks, and staff, also play important influential roles. They are the most versed in the details of operations and logistics, so effective execution of the plan depends on their continuous cooperation and directorship.

Cultivating leadership for when a disaster is actually in the process of unfolding is also essential. A COOP  pre-designates a line of successors and specifies the scope of their authority so that leadership continues when key decision-makers are unable to lead.

Communication is also key when a disaster hits. There are three basic elements to communications planning: technology, procedures, and security. First, it is imperative to provide essential personnel with backup communications appliances, such as cellular phones and handheld radios. Second, the plan needs to set forth procedures for which information will be communicated, to whom, and by what method. For example, who is responsible for notifying both internally and externally the public about court closings and openings, telework protocols, alternative work sites, and the like. After being notified by the courts, attorneys can notify litigants of schedule and location changes in their cases. Jurors and potential jurors should be notified whether their service will be required, and when and where they should go. Similarly, witnesses should be updated on the status of the courts.

Finally, routine systems of data backup are necessary. This includes backing up computer systems to off-site locations in the event that computers at the primary work site are damaged or inaccessible. The plan should also devise redundant systems of evidence documentation and storage. After Katrina, many cases were delayed or had to be dismissed because of the absence of witnesses or evidence lost in the chaos. Evidence in as many as 3,000 criminal cases pending before the court system was lost, and many witnesses and victims left the city and did not return.[7]

In the same way that pre-disaster planning examines priorities, post-disaster response activities should concentrate on urgent matters—such as life safety, fair treatment of prisoners and detainees, and communication with the court’s constituency—before addressing important matters. It is up to each court to identify and relate these urgent priorities before a disaster strikes. Moreover, a court should prioritize its essential functions. Priority is based on a combination of any statutory time requirements, importance to the court’s mission during a disaster, and the period of time the court could operate without performing that function. Prioritization of the essential functions should be based on the staff essential to performing them, needs, and available resources.

To reduce post-disaster backlogs and, more importantly, to preserve fundamental human rights, it is crucial to triage cases, and to handle postponements on a case-by-case basis. Plans, policies and protocols should be put in place for relocating prisoners and releasing suspects. During Katrina, for example, insufficient planning resulted in many suspects being released because they had been held for too long without charges filed against them.

An alternative site should take into consideration not only spaces for chambers and hearings, but also work space for displaced lawyers and other court related staff, who will need access to computers, phones, and meeting rooms. Some incidents, such as natural disasters, may cover a vast area. It is advised, therefore, to designate alternate worksites at a lengthy distance from the regular work sites to assure the court continues functioning. Additionally, the alternative site can function as a central hub to reunify dislocated members of the bar and their families, restore files and records, and reconnect clients with counsel.

As noted by the National Center for State Courts, “The ability of courts to perform their statutory mandates and ensure access to justice and the protection of liberties is particularly crucial when society’s traditional standards of operation are in disarray.”[8] Worldwide, courts in disaster areas face extensive challenges. Disasters like 9/11 and the Chi Chi earthquake remind us that catastrophic disasters, which are disasters that seriously overburden a community’s resources to recover, can disrupt the courts for several days or even months. Planning for disasters of such magnitude is a form of mitigation, and can greatly decrease the disruption. In the United States, judges are becoming increasingly more engaged with matters concerning the court’s security, emergency preparedness, and continuity planning. This trend should be mirrored worldwide.

It is said in the emergency management community that the best time to implement mitigation plans is post disaster, when communities are forced to engage because of the disaster’s impact and because of fear. Do not to wait for that day. Take a leadership position in your court. Review and revise your court’s current plan if there is one, or create a plan and practice it. Make your court more resilient and better prepared to uphold justice throughout any crisis.

[1] Thomas A. Birkland, Emergency Planning and the Judiciary: Lessons from September 11 (2004).

[2] Yi-En Tso & David A. McEntire, Emergency Management in Taiwan: Learning from Past and Current Experiences, in Comparative Emergency Management: Understanding Disaster Policies, Organizations, and Initiatives from Around the World 1 (David McEntire 2011).

[3] See, e.g,, National Center for State Courts, Continuity of Court Operations: Steps for COOP Planning, 5-6 (Dec. 2010).

[4] Thomas A. Birkland & Carrie A. Schneider, Emergency Management in the Courts: Trends After September 11 and Hurricane Katrina, Just. Sys. J., 22 (2008).

[5] Id. at 27. 

[6] Id. at 26.

[7] R. Crowe, One Year Later: Big Easy’s Court System Still in State of Emergency; Judge Looking at Releasing Some Prisoners Jailed Before Katrina but Still Not Charged, Houston Chronicle, Aug. 27, 2006, at A19.

[8] National Center for State Courts, supra note 3.

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with assistance from the American Society of International Law.

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