March 13th, 2020

Will Coronavirus Push New York’s Courts Out of the Colonial Era? (Updated x3)

Chief Administrative Judge Lawrence Marks
Chief Administrative Judge Lawrence K. Marks of the Courts of New York State delivers testimony during a joint legislative budget hearing on Thursday, Feb. 4, 2016, in Albany, N.Y. (Photo/Hans Pennink)

[Huge update at the end as NY suspends new jury trials, both civil and criminal]

New York’s Chief Administrative Judge, Lawrence K. Marks, issued a memo late Thursday to the judicial system about procedures to deal with COVID-19. Short story, the courts are still open and there is no suspension of jury trials. Yet.

But there’s a tantalizing morsel I want to discuss.

There are the six paragraphs, of which I will deal only with the 5th. Because it deals with procedures to reduce attorney traffic inside the courts:

(1) Intro; (2) Restricting access to those with COVID-19; (3) Procedures to deal with those that self-identify as infected, (4) Protocol for dealing with the issue; (5) limiting unnecessary traffic, especially to high-traffic courtrooms; and (6) Conclusion.

I deal with #5 since this was the subject of my post last week (Coronavirus, Crisis and the Courts). That called for the institution of specific procedures to limit the number of lawyers in civil cases who even need to come to court.

I won’t regurgitate the whole thing, but I first wrote about it back in 2008 when I estimated that one Brooklyn courtroom wastes $10M in lawyer time every year. The problem is that most stuff is agreed upon by the attorneys in the hallways. And that can be done just as easily by phone and email.

Judge Marks seems to now be pushing New York in the direction of limiting those unnecessary conferences, particularly with our “high volume parts– which bring together large numbers of people in courtrooms.” (A “part”, for you out-of-towners, is local lingo for where the judge sits.)

In addition to that part of the memo directing courts to liberally extend deadlines and grant adjournments — which we would expect — there is the directive to judges to “consider use of remote appearances (video and telephonic) to the fullest extent permitted by law.”

I suspect that some lawyers outside New York are quizzically scratching their heads on this. But, it’s true, the Empire State still operates much the way we did in colonial times: Show your ass in the courtroom. Even if it’s for a 60-second conference where there’s nothing to decide and so-sorry that you just spent the whole morning for those magical 60 seconds. This is, of course, mostly a downstate issue and short appearances and overwhelmed courtrooms are due to the high volume of cases.

Which was the point of my original post 12 years ago.

Back to Judge Marks. He writes that he is “reassessing” the procedures for these high-volume parts, and that means this memo is not a final product by any stretch of the imagination.

With the court system now specifically looking at those parts that waste so much time, and exploring the use of phone (and video!) conferences, New York’s courts may finally be on the road to entering the modern world.

I, for one, will be cheering Judge Marks on.

Update (2 pm): Hot off the presses, Judge Marks has suspended all new jury trials, both criminal and civil if opening statements have not yet been made. Trials in progress shall continue.

All civil Trial Assignment Parts are suspended.

All high traffic (read: NYC) preliminary conference parts shall maximize adjournments and directing appearances by phone or video conferencing. (Video! In New York!)

All appearances in compliance conferences that occur in centralized compliance parts suspended until further notice, with counsel to stipulate to terms or make arguments by phone or video conference.

When appearance is unavoidable, it “shall” be done by phone or Skype.

All motions to be submitted, and if argument needed it shall take place by phone or video.

Update #2 (Sunday, March 15th): All non-essential functions of the courts are postponed.

Update 3: The New York courts now have a page dedicated to coronavirus information and how it affects the operation of the courts.

 

March 12th, 2020

The End of Jury Trials Due to Coronavirus

It’s coming like a wave: The end of jury trials due to the coronavirus pandemic.

Jurors don’t want to show up in crowded places, judges don’t want them there, and none of them are to be blamed.

Suspended:

Houston (Harris County) – all civil trials

Michigan – all civil and some criminal trials: The Michigan Supreme Court has recommended that all civil jury trials in the state, as well as all criminal jury trials where the defendant is not in custody, be adjourned due to concerns about the COVID-19 coronavirus pandemic

US District of Connecticut:

All civil and criminal (grand and petit) jury selections and jury trials scheduled to commence now through April 10, 2020 before any district or magistrate judge in any courthouse in the District of Connecticut 

This will become a deluge.

Previously: How New York Courts Should React to the Coronavirus

Update: A friend emails me that he is picking a jury in on of the New York counties, that they are jammed into a small room, that two of the potential jurors are doctors, and that this was a “complete disaster” waiting to happen:

we had two doctors on our panel yesterday – one was at Lenox hill in the city and the other at Elmhurst – they both told us privately that bringing in jurors to central jury and then up to the rooms for jury trials defies every warning given so far by the government or health care providers and in their professional opinions it is a complete disaster. 

Update 2: The Southern District of New York will suspend jury trials (and naturalization ceremonies) set to start next week, as per the NY Post.

Update 3: Maryland – “All civil and criminal jury trials in the Circuit Courts throughout the state of Maryland scheduled to begin on March 16, 2020, through April 3, 2020, shall be suspended on an emergency basis”

Update 4: New Jersey: “Effective immediately, the Judiciary is suspending jury service for new trials,”

I’m going to stop with the updates, as of Friday morning 3/13, as it would be a full time job to keep up with the deluge to come.

 

March 10th, 2020

Greetings from the Containment Zone

It’s weird seeing your immediate neighborhood at the top of the news in a doom and gloom sorta way. You don’t really want to be trending on social media due to an illness.

It makes me think of a Twighlight Zone opening:

It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man’s fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call the Twilight Zone.

Some of us in New Rochelle, NY have been designated a “Containment Zone,” decreed by Gov. Andrew Cuomo, with the National Guard coming in. The day before he called us a Hot Spot, which I thought was a whole lot sexier and “I’m a Hot Spot” t-shirts would have been great. If not for that whole illness and death thing.

I’m essentially the center of the bulls-eye on the map with the circle around it, so I wanted to…

Oh my god you’re sick!!!

Ugh, who let you in here? And no, but thanks for kinda, sorta, almost askin’. I mean, there’s a good chance I will be in the next year or two, but that’s the same risk for everyone else in the country world. For the sake of our healthcare folks, let’s hope it doesn’t all happen at once.

So with the National Guard, that means you’re under military rule!?

Not exactly, and when I say not exactly I really mean absolutely not. The National Guard, which isn’t here yet, will be used to clean the schools that have been closed and get food to some people.

Are there guns all over the place? I bet there will be guns. Lotsa guns. And ammo. And tanks. And more guns!

Cool your jets. The Guard is not coming for military or police functions. It’s a straightforward manpower issue. We’ve only got so many hands on deck and simply need more.

How boring! OK, tell me all about the food shortages! Are folks fighting in the stores over the scraps? There must be fighting!

I’ve been to three different markets over the last week. The shelves are full. Grocery store traffic is normal. I’ve no fight videos to share. But there are hand sanitizers or wipes at the entrances.

So what the hell is different?!

Glad you asked, even if you did invite yourself in. Not too much. People try not to use the hand rails for the stairs. And at the train station folks will hold the station house doors open for others with their elbows.

That ain’t what I meant.

OK. The trains into the city are about ⅓ emptier as they leave New Rochelle because many folks in my neighborhood have been quarantined for the last week.

But outsiders reacted differently when the initial people got sick. The reaction of outsiders is vaguely reminiscent of the September 11th aftermath when some folks living in the back of beyond thought terrorists were coming for them and they needed tanks. And as bad as it was for many people locally, New Yorkers simply adapted. We even ran a marathon while the World Trade Center was still burning.

But I saw the screaming headlines! Like this one from the Daily News!

Yeah, well, they probably got tired of running Trump-Is-Clueless headlines and they gotta sell papers, you know?

[Yawn] So, anyway, the whole city is under quarantine now, right? Shut! Containment! Exclusion!

No. The city is not shut, regardless of what the Daily News screams at you. The containment refers to prohibiting large gatherings like in schools or worship houses in the area where people got sick. But people are free to come and go as they please if they are not part of the 1.5% of the population that was quarantined. It is neither an exclusion nor a quarantine zone. Perhaps Cuomo should have called it a “support zone” to refer to the National Guard helpers coming in, but I guess that ship has sailed.

OK, you can leave if you are not one of the quarantined ones, so tell me about the nightmare of disease on those rolling petri dish commuter trains into the city!!

Well, I drive to the station and take a seat on the train, most of which are new. No need to touch anything if I have a seat, and I almost always have a seat — even before the virus. It’s a relaxing 30-minute ride into Grand Central. The only thing I need to touch is my phone, since it’s an e-ticket.

So anyone working in midtown can easily go from their car to their office without touching anything until they get to their building. Subways are another matter, but that’s a NYC issue.

You know, this is really boring. Someplace there must be fire and brimstone coming down from the skies! Rivers and seas boiling! Cats and dogs living together! Mass hysteria!

Yeah. Sorry. But it just ain’t like that. In some places people will be sick, but I haven’t even heard a cough on the train. The only thing you’ll see are news trucks parked in front of City Hall and maybe a photographer at the train station, all looking for something, anything, to shoot.

In the end, this will still be New Rochelle. Norman Rockwell once lived here. Also Rob and Laura Petrie. The city now has a population of about 80,000 and growing with tons of downtown development. [Addendum: Cool interactive map.]

OK, now you’re just being a civic booster.

Who? Me? Actually, I tell you that because I don’t have much to work with here, OK? Life doesn’t really look any different for most. I saw a bunch of deer when I went for a trail run yesterday, does that help? And I heard coyotes last night.

OK, I got one for you — the politicians must be screwing this up big time! I mean, really, really big time!! Bigly!

A viral emergency is like a snow emergency for a politician. If you handle it well, few will notice. But if you screw it up you lose your job.

You know who knows that well? The Cuomo family growing up in Queens where the streets didn’t always get plowed. So Governor Andy has been all over this emergency giving extensive press conferences and showing a command of the facts. So too for New Rochelle’s Mayor Noam Bramson and Westchester County Executive George Latimer.

When people have a command of the facts you tend to trust them more when they give advice on what to do, or not to do.

Those guys are policy wonks. They dive into the material and know they damn well better be candid because there is comfort in knowledge and anxiety in secrecy. Yes, the illness is very important, but mostly so that people in the sweet part of life, who might get only a little sick because of younger and healthier lungs, don’t inadvertently pass it on to vulnerable populations.

Oftentimes people only mention politicians when bad stuff happens. But Cuomo, Latimer and Bramson all deserve much praise for doing as well as they can under exceptionally difficult circumstances.

New Rochelle is like a canary in the coal mine as they experiment, in conjunction with the Centers for Disease Control, to see what will slow down the viral spread so that hospitals aren’t inundated all at once. If 2% need hospitalization, that’s still 1,600 hospital beds for an 80,000-person city.

You mentioned the Mayor. And the County Executive. And the Governor. Any other political chief executive you want to give accolades to?

Finally. I get to answer your question with one of my own. Do you know of a national level chief executive that is a policy wonk with a command of the facts?

 

March 6th, 2020

Coronavirus and Crisis and the Courts

It’s often been said that crisis equals opportunity, and that is not usually said in a good way.

But that is “usually” and not always.

The coronavirus is now rapidly spreading and we have to deal with it. It has swept through the top branches of Iranian leaders. And just this morning one rabbi in New Rochelle has it at a congregation that was already quarantined.

Community leaders, of all stripes, shake a lot of hands. And viruses don’t care about religions or politics.

So where is the opportunity with this potential pandemic? Well, from my seat as a practicing civil lawyer, I see changes in the courts that should have been made long ago.

Non-lawyers might not appreciate this, but at the vast majority of court conferences little happens that is contentious. Most of it deals with discovery issues and schedules and 90% of that is agreed to by lawyers in the hallways. Often it is 100% with no legal issue that needs judicial intervention.

Sometimes you show up just to pick another date to show up. Seriously. Don’t ask me why. It’s beyond stupid.

The vast, vast majority of issues can be taken care of by email and by conference calls. Skype (or similar) conference if you like. There is often little need for personal appearances.

In one Brooklyn courtroom, I once estimated over $10M in lost legal time per year. And that was in 2008.

I reprint those 2008 suggestions again here today. It is time for New York to move into the technological age. We have been unresponsive in the past for this wasted time, but now our health (lawyers, judges, officers, clerks) depends on it.

Perhaps the time is now. My 2008 suggestions:

First: The court must create an electronic template for their compliance orders that the attorneys can use, with required dates for completion and a future conference. That is the easy part;

Second: Every Preliminary Conference should have a provision whereby the attorneys are required to have a conference call at least 20 days before the compliance conference so that they can use that template to create a stipulated order to complete outstanding discovery;

Third: All completed orders can be submitted via email to the court, with blanks left for future court dates and a place for the attorneys to note their availability or unavailability due to conflicts. The court then prints, signs, and files and the lawyers retrieve the order via eLaw.

Fourth: Any unresolved issues must be subject to a court conference call with one of the court attorneys. Scheduling is done by email with a specific time to call in;

Fifth: In the event of a real issue that has defied resolution, or an unreasonable or obstreperous lawyer is involved, a court conference is scheduled;

Sixth: Some lawyers don’t, ahem, get paid to move cases efficiently. They get paid to be unreasonable. Wasted time means more billable hours. The court has to start treating the directives in preliminary conference orders more seriously and be stricter with problematic firms as the judges do in the federal system. This will ultimately force lawyers to work things out, or risk the wrath of the court for being unreasonable or routinely ignoring orders.

Update 3.12.20: Scott Greenfield addresses this from the criminal side: Coronavirus, Courts and Jails

Update 3.13.20: Emily Bazelon in the New York Times now asks the same questions from the criminal side about why we can’t move more court proceedings online.