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 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.

 

October 16th, 2018

Does Judicial Temperament Matter? (A Tale of Two Judges)

Supreme Court Justice Brett Kavanaugh during his confirmation hearing.

It was the worst of temperaments, and it was the worser of temperaments.

OK, not exactly the gold of Charles Dickens’ A Tale of Two Cities opener, but I needed something to compare the recent fiasco of Justice Brett Kanvanaugh‘s confirmation hearing with the removal of Queens Civil Court Judge Terrence O’Connor today.

Your familiarity with Kavanaugh’s angry, snarling, yelling screed will be assumed when members of Congress were calling for an investigation of potential sexual abuse.

Judge Terrence O’Connor, via NY Post

O’Connor was removed byNew York’s Court of Appeals today for his belligerence from the bench. You can read a summary of the details at this New York Law Journal article.

A sample of his conduct is this, from the opinion:

“Here, the record is replete with evidence supporting the Commission’s determination that, on numerous occasions, petitioner acted impatiently, raised his voice, and made demeaning and insulting remarks, often in open court. In so doing, he violated his obligation to treat those appearing before him with dignity and respect”

But the part that struck me most was this piece about the judiciary in general, about the need and duty to investigate potential misconduct, and why judicial temperament matters:

“Judges are also charged with promoting public confidence in the integrity of the judiciary through their own respect for the law. Public confidence in the integrity of the judiciary has long been recognized as essential to its vitality as well as our overall system of government. If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct.”

And that is the ultimate question for the public when it looks to the robe on the bench. Can we assume confidence and integrity with the rulings that come down?

 

September 28th, 2018

Saving the Supreme Court – 3 suggestions

Christine Blasey Ford, by Manuel Santelices. Used with permission.

Much will be written about the horror show yesterday before the Senate Judiciary Committee regarding the emotional testimony of Dr. Christine Blasey Ford and Judge Brett Kavanaugh. While there will be a million hot takes on its immediate significance, I’d prefer to look long term at the damage to the Court as an institution, and how to fix it.

Already suffering from deep politicization –made worse by the failure to the GOP to even give Judge Merrick Garland a hearing — it seems that the Court is doomed to have whatever shred of its integrity and dignity destroyed unless the Nation acts.

Over at Reason, however, Nick Gillespie sees no hope, and calls it “impossible.” In an article he wrote before the hearing, 3 Questions To Ask Yourself While Watching the Kavanaugh/Ford Hearings Today, he writes:

Is there any way to depoliticize the selection of Supreme Court justices? Almost certainly not, and it probably would be inadvisable in any case. The Supreme Court is part of the government after all, and the justices read the opinion polls and headlines too. They are selected by one politician (the president) and vetted by others (senators). Getting politics out of the process is impossible and ultimately, elections do indirectly change the makeup of the bench.

I disagree and offer my three ways to restore the integrity of the institution.

But before doing so, it’s important to note that when the Constitution was written, the average life expectancy was 36.  When you factor out all those that died in infancy and childhood, you obviously got a higher age, but it still would not have compared to today’s average age of 78.  Serving on the High Court was the culmination of a career.

Now, however, it is seen as a way to put someone on the Court for 30-40 years, thereby making each seat that much more potent. When you combine that with Congress’s continuing refusal to make tough decisions and instead pass its power to various agencies that make decisions without voter approval, you get a Court made even more powerful by virtue of the breadth of issues it must decide.

So how to deal with this? My three suggestions:

Term Limits. This is not a new idea and has been kicking around for awhile. If each jurist gets an 18 year term, with a new one picked every two years, you have regular turnover that reduces the impact of any one justice. After leaving the Court the judges can sit by designation in any District Court of Court of Appeals of their choosing, as retiring SCOTUS justices do now, and do so for life.

Pinch Hitters. As we saw with the Garland nomination, Senators have a motive to leave seats empty until a President comes along from their own party. This is, obviously, an insult to the Constitution. If the Democrats get a chance to get revenge and hold a seat open until the next election, they surely will do so. Additionally, there is sometimes an empty seat when judges must recuse themselves due to conflicts of interest, which was the subject of a satiric April Fool’s gag I wrote 10 years ago that had various justices recusing (or not) based on their participation in a fantasy baseball league. The gist of it was the recusal rules aren’t really all that clear and justices decide for themselves.

The solution? If there is a vacancy due to death, retirement or recusal, the Court pulls a name at random of a sitting Court of Appeals judge with 10+ years on the bench to sit by designation. This decreases the chance of Senators playing politics with the Court.

Advice and Consent. The Constitution says the President appoints the judges with the “advice and consent” of the Senate. But all too often, it seems, there is a request for consent without asking for that advice. The Judiciary Committee can agree, and make part of its rules, that it will provide to the President a list of 10 (or 20, or whatever) judges and that a hearing will be given for any one culled from that list. This, of course, requires actual cooperation among the Senators, who would choose the list members by a supermajority, thereby taking another step toward removing politics and eliminating extremist choices from either side. It would only be effective, obviously,  after the next election.

But you know what? This all presumes that the Senate actually wants the Court to be immune from politics. The more cynical view, and perhaps the more accurate one, is that Court nominations and fights are just another means of generating anger, which is then used for fundraising purposes.

So there are means out there to depoliticize the court. It can be done. The question is whether there is the will to do so.

 

September 25th, 2018

Judge Kavanaugh and the Art of Jury Selection

Judge Brett Kavanaugh, via Rolling Stone and Alex Brandon/AP/REX Shutterstock

As the Brett Kavanaugh confirmation spins wildly out of control with accusations of sexual assault, I’ve sat back and watched knowing that I’ve seen versions of this play before.

Those similar plays are not in politics, but in the course of jury selection.

This won’t take long.

Underlying virtually everything about the accusations is the concept of confirmation bias. Those who are hoping for a result, be it confirmation or rejection, will see the facts as they emerge with the spin that is most favorable to the conclusion that they want, in their hearts, to be reached.

It really isn’t that tough to see that, for varying reasons, a great many folks made up their minds before hearing all the evidence. And you know this because the witnesses haven’t even testified yet before the Senate Judiciary Committee.

The first example of this is Senate Majority Leader Mitch McConnell:

‘In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. We’re going to plow right through it and do our job.’

And the second is Senator Lindsey Graham, on the Judiciary Committee, demanding a vote ASAP:

 

These types of comments always accompany a ‘Don’t worry, we’ll be fair at the hearing’ attitude.

And this sounds like a version of Old West justice, “Don’t worry, he’ll get a fair trial before the hanging.”

Jury selection is a bit like that. A room fills with people who’ve lived lives that you know nothing about. And your job, in a very, very short time, is to see if you can root out those with biases — those who will, from the start of the trial simply be looking for information that will confirm their own biases about lawsuits of this type (whatever the type may be).

Hey, those biases may be great if they help you (as I always tell them)! But they can also be the death penalty of your case.

Every person that has uttered a conclusion on the Kavanaugh sexual assault allegations, regardless of which side they fall on, is utterly unsuited to be making a decision. Each and every one of them has reached a conclusion in advance of hearing all the evidence.

It’s true that, in this particular case, there are 100 jurors and 97% of them have already decided. But that isn’t the point of this post.

The point is about types of people and the way they form opinions and their ability to keep an open mind. A great many can’t do that, and those are the ones you need to find.

Sometimes, they expose themselves.