Court operations are essential to the functioning of society, and extended interference in court business can bring devastating consequences. Business continuity is the ability to continue operations in the face of a disaster. It means having a plan for how to continue business and restore operations quickly when disaster occurs. A business with a viable continuity plan will be better equipped to continue activities when its assets are damaged until “business as usual” can resume. This requires identification of critical business functions, risks to these critical functions, and ways to avoid or mitigate risks. Court leaders must work together to ensure the successful creation and implementation of such a plan.

A disaster is any event that results in death or serious injury or in a business being unable to continue its services temporarily or permanently. Business and disaster recovery focus on restoring personnel and asset levels to a minimum necessary “critical mass” for continuing operations (thereby avoiding or minimizing downtime) and returning those operations as quickly as possible to achieving the core mission of the business. Business continuity emphasizes avoiding danger and disaster, while disaster recovery focuses on salvaging and rebuilding.

Court leaders must be convinced that business-continuity planning is important, though its benefits may not be quantifiable or realized until the plan is executed. Successful implementation depends upon management support because comprehensive plans are interdepartmental and call for the input and cooperation of all employees. Business-continuity planning includes strategy development, wherein the courts must identify, assess, and prioritize critical functions. Each department within the court needs to consider the levels of disruption a particular disaster would cause and foster awareness of the plan once it is in place. Members of the court need to know what immediate actions to take in the event of a disaster. The most meticulous contingency plans are worthless if no one knows how to implement them. It is the responsibility of court leaders to ensure awareness and communication of the plan and to be confident that it fulfills the recovery needs of each department within the court.

Some events that strike courts have longer lasting repercussions than others. Some may happen on an isolated and small scale (e.g., courthouse fire with smoke and water damage), while others may have a much broader scope and leave greater damage—for example, urban riots, serious challenges to the political order that spill over into the courtroom, terrorist attacks, earthquakes, etc. It is necessary to understand the potential repercussions such events could have on a court. What might the scope and magnitude of a flood’s impact be compared to those of a terrorist attack? Plans developed by courts must address the anticipated scope and magnitude of potential disasters and disruptions versus their relative likelihood.

Courts are exposed to risk when the workplace is not available. Employees must be prepared to accomplish work even when the work, workers, and workplace dramatically change due to disaster. Channels of communication not limited to a specific environment must be established. This can be accomplished by developing a "plan B" business-continuity strategy and training employees. Options for maintaining communications include a courtwide toll-free number for staff to call when disaster occurs and available cell phones to be used when work must be performed away from the court building. Phone lists should be updated and distributed frequently, with copies kept away from the primary site of business. Laptops can be used to maintain data processing and other functions. Court leaders should be aware of alternative sites for temporary locations and create plans for continuing work in those environments. Such environments include other government offices, schools, and civic centers.

Most courts rely on computers to store case and financial management records. Access to such records is limited or nonexistent during a disaster. To protect records, courts must determine which documents and processes are essential and how they can be performed and maintained manually. These records must be accessible during the recovery effort, but their safety should be secured. Upon full recovery, those documents must be merged with pre-disaster documents. Basic records, such as accounting reports or case registers, should be printed or put on laptops to be restored to the system later. Keep preventive measures current by printing hard copies and ensuring that data and resources are backed up electronically and on paper regularly. Experienced data-center directors, as a matter of course, arrange for off-site storage of electronic data. Back-up data makes restoration of electronic records possible as soon as replacement equipment can be installed. Data systems should be shut down in an orderly fashion.

To ensure timely recovery of electronic data, documented and tested restoration procedures are needed. At the very least, this includes ensuring an off-site location for storage of electronic data and acquiring back-up power generators and battery systems to minimize the loss of data. Although costly, these measures prove worthwhile as courts try to recover. Courts with sound business practices should never lose more than one day’s worth of information unless the disaster affects a large geographic area.

Paper documents are the most likely to be destroyed in a disaster. The most common destruction of paper results from water used to put out fire. Mold quickly destroys wet paper, and courts must act quickly to salvage these records. Additional personnel will be needed to undertake this recovery process; such a need should be anticipated before disaster strikes. Where will the additional support come from? Identification and training of these personnel should begin within 24 hours of the water damage. Courts current with their retention schedules need not worry about wasting time and resources salvaging records whose value has expired.

If a court cannot salvage records, it must find some other means of replacing the information. When a court in Los Angeles County lost its records to fire, it used the district attorney’s records to partially replace case information. If a justice system is truly integrated, parts of the court record may reside with one of the other justice partners. Local lawyers can help by providing copies of filings.

The court leadership’s role is one of oversight and involves establishing an initial planning committee for disasters, appointing a leader for such a group, conveying expectations to staff, and taking direct responsibility for ensuring that all levels of management are familiar with the disaster-recovery and business-continuity plans.

Court leadership must be convinced of the importance of disaster planning. This is often difficult because the benefits of planning are not quantifiable or realized until the plan is needed and executed. Nevertheless, successful implementation of the plan depends on full management and employee support. Comprehensive plans require input and cooperation from all employees. Each employee needs to know what is expected in times of crisis. Court leaders should convey the importance of the planning process and its results to court staff and in times of crisis must delegate responsibility, recognize workload constraints, establish processes to ensure continuous participation in a disaster plan, and issue regular updates on the planning process and emergency procedures. Court leaders should be prepared to be short-staffed and to recognize the nature of the crisis and its effects on staff. Counselors may be needed for the staff, and productivity may suffer. If the court leadership is prepared for this, the effect on business productivity will be minimal.

Court leaders should direct the court in identifying essential functions and critical services. It should seek to answer what the court’s primary business objective is and how the court can focus on and meet that objective until the crisis is over.

The terrorist attacks in New York City left the Manhattan courthouse in turmoil and chaos. It was inaccessible to the public; prosecutors and defense attorneys lost access to phones, files, and computers; and police were unavailable. The court of claims courthouse was destroyed, and other Manhattan courthouses were in a zone deemed unsafe for the public. Chief Judge Judith S. Kaye guided recovery of the court system immediately following the attacks by pledging that the Manhattan courthouses would reopen as soon as possible and get back to business as usual. This decision led judges to work quickly and efficiently toward that goal.

The courts kept up communication with attorneys and the public with makeshift systems. Cell phones were obtained, and new phone lists distributed. Emergency information centers served as clearinghouses for information on missing persons and provided information in a timely manner to reduce public anxiety. Courts worked to limit the effects of the Manhattan courthouse's closure on other courthouses. The over 14,000 lawyers in downtown Manhattan handled cases in and out of the Manhattan area, so effects of the lack of access to attorneys were felt throughout the state. The court system helped lawyers reschedule cases, provided copies of filed documents at no charge, and encouraged adversaries to help lawyers reconstruct files. Judges throughout the state were encouraged to grant extensions and accommodations as needed, and the Administrative Office of the Courts created a place for itself at the central command center in New York to provide a central point for decision making and dissemination of information.

The two largest problems for the judiciary once the courts reopened were a lack of phone service and no public access to lower Manhattan. Due to these problems, the district attorney’s office requested a blanket two-week adjournment, but judges insisted on individualized consideration of each case. To combat lack of phone service and no connection to other courts, a plan to implement wireless access was expedited, and a custom system was installed within a week.

Several factors led to the successful recovery of Manhattan and other affected courts. The judicial leadership’s confidence in the ability of their courts to rise to the challenge of the crisis allowed for the administration of justice to recover quickly. Courts maintained a commitment to individual justice and determined the course of action for each individual case, rather than issuing blanket decisions on how to handle cases.

See the Vera Institute of Justice’s study of the Manhattan courts in the aftermath of September 11: "The Administration of Justice Under Emergency Conditions: Lessons Following the Attack on the World Trade Center.”

In the aftermath of 9-11, the traditional rules that govern the courts must be redefined so they will not be debilitated by an attack. Courts can do several key things to make themselves resilient and resistant to attack. They can create barriers to access to make courts an unattractive target. Changing security personnel uniforms, adding perimeter lighting and cameras, and issuing access badges can make the courthouse a more difficult target. Revise employee-screening processes to ensure that employees at risk of being exploited or compromised are identified. Implement a system of checks and balances whereby critical information and access are not subject to compromise. Reassess business-continuity plans to ensure that terrorist attacks are among the disasters being planned for. All of these actions can better equip courts to plan for terrorist threats. (Also see the Court Security module.)

While not even the best plan or planning process can prevent either a natural or manmade disaster, courts with a plan are more prepared to continue serving the community through a crisis. Courts with contingency plans will experience faster recovery of information systems and critical services. Continuation of court business during and after a disaster requires not only a well-developed disaster-recovery plan, but also stress testing of the plan with clear guides for implementation.

A disaster-planning team should be set up with a leader chosen from the court’s judicial leadership and senior court management. The “disaster team coordinator” is the person in charge of coordinating planning aspects of the disaster-recovery process, with authority vested in court leadership. The planning team itself must have members from various departments within the courts, as well as from entities with which the court frequently interacts. These may include members from county management, clerk of court’s office, judicial staff, court security, facilities management, library, prosecution, indigent defense, and corrections. Consider who will be responsible for making decisions in the aftermath of disaster. Decision making might be shared, with primary roles for the presiding judge, clerk of court, and court administrator, alongside local and state government. It is better to establish clear boundaries about who is responsible for which decisions during planning rather than encounter “turf” issues during a crisis. The earlier in the process a point person is identified, the less confusion there will be in the planning and recovery processes.

Early tasks of the team include assessing risks, identifying essential functions, and securing facilities. Areas of the court should be analyzed to determine potential consequences and damage. The safety of critical documents and vital records should be considered, as should consequences from loss of information and services. Scout alternative locations for court operations, such as churches, government buildings, schools, or convention centers.

The “black bag” concept—a portable storage unit of essential forms, supplies, and computer disks—serves courts well. It helps identify what is absolutely essential to the running of the court. In the event court business must be temporarily conducted outside court facilities, communicating responsibility for grabbing the black bag and keeping the contents current is an important aspect of planning. Every employee needs to know what to do and where to go in an emergency. The best planning involves court leadership conveying the importance of the disaster plan to staff. (Suggestions provided by Disaster Recovery Planning for Courts: A Guide to Business Continuity Planning [Williamsburg, VA: National Association for Court Management, 2000].)  

Disaster-recovery plans are not “one size fits all.” It is impossible to design a template that works for all courts. Although there are similarities in court business practices, a generic disaster-recovery approach is not practical given the wide range of differences in courts and supporting operations. A few simple practices can ensure recovery from disaster: Review disaster-recovery and business-continuity plans annually. Be sure that responsibility for protection of the court's assets and operation rests assuredly in one individual, usually the court administrator or presiding judge. Make sure staff knows and performs business-continuity practices. Ensure that business-continuity functions span all aspects of the court. All business processes must be recoverable, no matter what their dependence upon information systems is. Business continuity is a continuing process; it should not be treated as a one-time project. Once the plan is in place, it must be tested to ensure that it will effectively meet the court’s recovery and continuity needs. (See Natural Hazards Center at the University of Colorado, Boulder, for a full collection of records on previous disasters.)