The “New Normal.” Are we there yet?
The “New Normal.” Are we there yet?No.
But, most assuredly, we are heading there.
Like all life and business in America and New York, our courts and practice of law will likely never be the same. And, while it is sometimes hard to focus on the things we have learned amidst the health and economic hardship that many have suffered since March, once we sort through the carnage, we will be able to appreciate — and develop and improve upon — the ways we have learned to adapt.
What will that mean for the courts and the practice of law? What will the “New Normal” look like?
The “New Normal” is still very much a work in progress and, if we are smart, always will be; we should always be looking to improve our court system to benefit our “customers” — litigants who come to court to try and achieve a just resolution of their disputes; persons who are entitled to a fair determination of criminal charges against them; the victims of crimes, who, too, are entitled to “justice”; witnesses, whose testimony is necessary to establish the facts upon which cases are decided; jurors, who often make critical decisions of who prevails in civil cases and whether a criminal defendant is proved guilty of the crimes with which they are charged; grand jurors, who determine whether probable cause exists to charge an individual with a crime; — and the many “non-civilians” — including judges, court clerks, law secretaries, court officers, and attorneys representing the parties or the government, all of whom have important roles to play to ensure that our courts can perform their essential function: to provide justice.
That there is a long list of people who use or are integral to the operation of our courts should come as no surprise to anyone who has waited in long lines to go through security to enter our state courts — where the volume of cases is significantly higher than that in the federal courts. Also, the sheer volume of cases in the state courts often results in many hours that litigants, witnesses, jurors, and attorneys must wait for the many cases ahead of them to be heard. Indeed for many, one’s experience in state court, especially when there for conferences or arguments on motions, can be, “Hurry up and wait!”
So, what have we learned during the shutdown? What is happening as our state courts gradually reopen? What new practices have been, and can still be, adopted?
First, the “low hanging fruit.”
Conferences and Oral Argument on Motions
Out of necessity, the courts have been holding conferences and hearing arguments on motions remotely, using old-fashioned telephones and modern video conference technology. For all lawyers who have spent hours traveling to the courthouse and waiting for their cases to be called for conferences or arguments on motions, and for clients who are paying their lawyers on an hourly rate to do so, the ability to schedule a video conference or oral argument at a fixed time is an enormous benefit. All one needs is a phone or a computer, and what in the past may have taken half a day can now take half an hour — or less.
Are there reasons why it would be beneficial for the attorneys, or even the parties, to appear live and in-person in particular cases? Yes, and that can still be done — at least when the courts fully reopen — but with fewer cases to hear “live,” those appearances should be handled far more efficiently.
And, you may be asking, “Aren’t our courts public forums? Shouldn’t the public have the right to be present and see what is happening in our courts?” Yes again. However, let’s look at court conferences and arguments on motions separately:
The in-state court conferences, even if conducted in the courtroom, are often private affairs, with the attorneys whispering at the bench to a judge or to a law secretary elsewhere in the courtroom (or, at times, even outside), or even by submitting a proposed stipulated order without ever having spoken with anyone. Certainly, in those instances, conducting conferences remotely will not result in any increased deprivation of the public’s right to be present.
As for motions, they are not all created equal: Mundane motions related to discovery disputes — which are often resolved in telephone conferences with the court even prior to a motion being filed — are far different than a substantive motion to dismiss or a motion for summary judgment. Substantive motions, in certain cases, may very well have an interest in the public. The Court of Appeals and the Appellate Divisions of New York State Supreme Court are already live streaming oral arguments on court websites, thereby providing the public access. There is no reason why that cannot be adapted to oral argument on motions in the trial courts that are heard remotely.
Presumptive Alternative Dispute Resolution (“ADR”)
As we’ve discussed in previous articles, Presumptive ADR has come to New York State Courts. Since the Chief Judge’s mandate in May of 2019, the courts have been implementing various forms of ADR, such as early neutral evaluation, mediation, and even arbitration. Mediation, in particular, where a neutral third party facilitates a negotiation between parties to a dispute with the hope of achieving a resolution reasonably satisfactory to the parties, is helpful in all, or almost all, cases. Mediation is a process that provides parties with an opportunity to arrive at a resolution early on — saving attorney’s fees and the time, stress, and uncertainty inherent in protracted litigation, and helping the court reduce its caseload. However, with the backlog that has resulted from the court shut down due to COVID-19 (resulting in significant delays in the courts’ ability to conduct trials), mediation takes on a new urgency, allowing the parties to resolve their disputes much sooner than later and get on with their lives and businesses. And, happily, the videoconferencing technology exists to allow mediations to be conducted remotely online, using platforms such as Zoom. The courts, attorneys, and litigants should look for more opportunities to use ADR to resolve disputes – even before going to court.
Discovery and Trials
Depositions, which are an integral part of any litigation and are usually conducted outside of the courthouse, have been the discovery tool most affected by COVID-19. Many parties, witnesses, and attorneys are unable and/or unwilling to travel or meet in one room. Increasingly, parties are conducting remote depositions, with the assistance of the many court reporting companies who have established procedures for them to be conducted.
Certainly, a remote deposition may be significantly different than a “live” one. At the very least, a party or witness will not be in the same room as his or her attorney, which may make a witness uncomfortable. The attorney questioning the witness will not have the benefit of being in the same room as the witness and being able to observe the witness’s body language. Also, the handling of documents will certainly be more difficult than at a “live” deposition. We are just at the beginning of learning about best practices in conducting remote depositions — including how and when they can take place. There will be more to come on this. Stay tuned.
Trials present the greatest challenges. While a very small percentage of filed cases actually go to trial, trials are the method by which civil cases that cannot be settled or decided on motion practice are decided. Jury trials are starting to be scheduled, and a few have already taken place. However, this will take place at a very slow pace. When jury trials are conducted, procedures will be in place to protect the parties, witnesses, attorneys, and court personnel who will participate. These may include required social distancing in the courtrooms and staggered starting times to eliminate the logjams that have often been present at courthouses at 9:30 AM each day. Once again, stay tuned.
Non-jury trials do not present all of the challenges of a jury trial. At the very least, accommodating the needs and safety concerns of jurors would not be necessary. Still, there are many others who would have to be present for a non-jury trial to be conducted “live” in court: parties and witnesses, judges, attorneys, court reporters, court clerks, and law secretaries. Conducting non-jury trials remotely can be done using video conference technology — and some have already been conducted. We will hear — and learn — more about this in the future.
While it often seems as if our state courts are hidebound, that has not always been true and — more importantly — these times have required the courts to think outside the box, often rethinking procedures that many thought were etched in stone; and they are doing so. Lawyers should be part of the process, as should those “customers” who use the courts, who should be sharing their ideas with their attorneys and, where possible, with court administrators, so that ongoing reforms will better meet the needs of the people the courts serve.
[1] I use the word “remotely,” and not the word “virtually,” which is often used, deliberately. These are not “virtual” hearings or arguments; they are actual arguments that are being conducted remotely.
[2] On some days where a court calendar is particularly long, it is not uncommon for a conference to be conducted in a hallway.
[3] See, e.g.
https://www.nycourts.gov/ctapps/live.html
http://ww2.nycourts.gov/sites/default/files/document/files/2018-05/PR17_11.pdf
http://wowza.nycourts.gov:1935/ad2/myStream/playlist.m3u8
https://www.timesunion.com/local/article/State-appellate-court-to-live-stream-oral-6740388.php
https://ad4.nycourts.gov/go/live
[4] As described in a previous article, I have been conducting mediations using Zoom since March 2020. While many mediators, attorneys, and parties may prefer “live” mediation sessions, and they may be the ideal forum for conducting a mediation, there are many cases where a remote mediation works just as well — sometimes even better if parties are located far from New York. In any event, necessity prohibits most “live” mediations for the time being.
[5] Change can be initiated in two non-exclusive ways: top-down and bottom-up. The creation of Presumptive ADR by the court is top-down. However, the demand of litigants for a faster and more cost-effective way to resolve disputes — a bottom-up driver — helped fuel the adoption of Presumptive ADR and can continue to cause attorneys and the courts to make greater and more effective use of mediation and other forms of ADR.
[6] In 2019, 4,293 civil cases were tried to verdict in New York State Supreme Court. New York State Unified Court System 2019 Annual Report, p.36.
