Client Alert: Full Staff of New York Courts Due Back May 24, But Some COVID19 Changes In Litigation Are Here To Stay
The difference in how civil litigation was conducted in New York before COVID and now could not be greater. Overnight, the system where the vast majority of court business was conducted live inside a courthouse was shut down. After a hiatus, as everyone scrambled to enhance their technical capabilities, court proceedings finally resumed via remote means. While the pace of pre-trial proceedings and appeals had increased over time, all civil jury trials were initially postponed indefinitely and have resumed only in very limited numbers.
Similar changes were seen in the way depositions and mediations were conducted. These proceedings, overwhelmingly live before the pandemic, are now routinely conducted virtually as a matter of necessity.
The Chief Judge has now directed all judges and court personnel to return to their respective courthouses by May 24. Still, the number of attorneys and litigants permitted in the courthouse will continue to be restricted, and most pre-trial matters will continue to proceed via remote means. While the number of trials is expected to slowly increase, it remains to be seen how the court will manage a historic backlog of trial-ready cases.
In light of the mostly involuntary adoption of remote proceedings, what can we expect in both the short and long term? The simple answer is remote proceeding are here to stay, and it is simply a matter of how prevalent its uses will be. Certainly, many pre-trial proceedings in court can be more efficiently conducted via remote means in order to avoid time wasted at the courthouse and in travel. We also expect the opportunity to remotely conduct certain hearings, depositions and mediations in the appropriate circumstances (e.g. as a means to avoid lost time in travel and for ease of scheduling attendance) will be more carefully considered and accepted.
The New York Court system has taken aim at permanent changes to the system. “The Commission to Reimagine the Future of New York’s Courts” was created on June 17, 2020, to make recommendations designed to improve services of, and access to, the courts, and to consider how to enable the courts to keep pace with society’s rapidly evolving changes and challenges. This Commission has made clear that the courts’ technical abilities have to be enhanced and remote proceedings will become integral to court functions.
Moreover, creative solutions are also being considered to deal with the notoriously backlogged courts in New York. Arbitrating a dispute has long been an option to willing litigants, and we expect that will continue to be a growing option for impatient litigants. It provides a road to resolution that is much quicker and usually much less costly than pure court litigation. However, the absence of full appellate review often deters litigants from going down this path. A hybrid solution called “Private Judging” is being suggested by some in New York. It is similar to arbitration in that the parties agree on a private “judge” who will be the fact finder and make determinations of law (i.e. be judge and jury), but a lawsuit is first commenced in court and then the private judge’s findings are subject to full appellate review.
As far as live versus remote proceedings, we expect that in the long run most trials, depositions, arbitrations and mediations will continue to be live events (although the ability to have certain witnesses and participants appear virtually in an otherwise live proceeding opens up avenues for flexibility in scheduling and other efficiencies). Despite the advances in the technology behind remote proceedings, there is no substitute for being present in one room with all interested parties to see firsthand the reaction, verbal and otherwise, to what is transpiring and to dictate the pace of an inquiry in a way that cannot be accomplished via remote means.
For now, we are anticipating an uptick in court activity and movement of cases as court personnel return to their courthouses. At the same time, we are prepared for the future where remote proceedings will remain a part of the new normal of litigation.