October 12th, 2020

The Post-Pandemic Law Office

One day this pandemic will end. I don’t know when, but it will.

And when it does end what will the future hold for those lawyers who actually know where the courthouse is located and go there on a regular basis? I’m glad you asked.

First and foremost, the courts have partially adapted. Necessity is the mother of invention and all that.

Virtual depositions are going on, despite the fact that some defendants tried to argue that there were reasons everything should be put on hold. And many lawyers are finding out that little is lost in taking testimony this way. You want to be in the room with your client? OK, you can do that. But if opposing counsel or the stenographer doesn’t want to be there, then they can appear virtually. Win-win.

Virtual conferences are now taking place daily with courts. Lawyers know all too well the time spent traveling to/from court and the time waiting (and waiting, and waiting) on those hard wooden benches for your five minutes with the judge. Those are now a thing of the past. Hopefully they will stay that way.

Because most appearances (on personal injury matters) are for discovery issues, and most of it is usually handled in the hallway outside the courtroom anyway. Only a small fraction of important issues need judicial intervention, and most of that can be done virtually.

Many appearances are mere status conferences where, literally, nothing happens at all other than giving you a date to come back in the future. (Yes, dear non-lawyer readers, this stuff was still going on as of the pandemic’s start.) Does anyone really need to kill three hours going to court to be told “We think your trial will be in seven months”?

What does all this virtual appearing mean? It means that, if you want to make your best appearance, your office is now turning into a TV studio. You need to be well lit, well seen, well heard and have a decent professional backdrop.

While I wrote, back in March at the dawn of the pandemic, a list of tips for dealing with this while it was ongoing, I think now that virtual appearances are here to stay. They are successful. So to the extent virtual appearances have been jerry-rigged until now, lawyers should see this as being permanent. The future has arrived.

Think of it this way: You formally may have shelled out $500 – $1,000 for a good suit. So you would look professional in court. Why wouldn’t you also put on your best face virtually?

Incredibly, I’m told by judges, many aren’t doing it. They are oft times phoning it in dressed in casual clothes, or from remote areas with lousy wi-fi. It does not serve your client well to disrespect the court.

You have two offices, the first being the high-priced storage facility that is on your letterhead and the other being your home. One day you will get back to the real office, and may have already started. But the virtual appearances will (hopefully) continue for many of the routine things we do.

For me, I’m moving my office shortly (unrelated to the pandemic) and you can be sure that the nice bookcase I bought 30 years ago will be behind me and I’ll have lights in front of me.

Home offices are trickier, of course, due to the myriad differences from one to the other. But absolutely required — even if forced to appear from the kitchen table in a two-bedroom apartment you share with a spouse and kids — are a good connection, court clothes, good audio and decent lighting. Webcams and lights can be bought for under $100. There’s no excuse for appearing in court as a backlit shadow.

Since virtual appearances are likely to continue past the pandemic’s end, you might as well make those investments now.

Think of it as buying a suit. And spend accordingly.

 

June 17th, 2020

NY Stacks Court System Commission with White Shoe Lawyers (Updated)

New York’s Chief Judge, Janet DiFiore

Dear Chief Justice DiFiore:

Seriously? You put together a commission to develop a comprehensive vision of the court system of the future, and stacked it with white shoe lawyers? People who don’t actually go to court on a daily or even weekly basis?

Your commission is “charged with examining the enhanced use of technology and online platforms, among other innovations, and making recommendations to improve the delivery and quality of justice services, facilitate access to justice and better equip the New York State court system to keep pace with society’s rapidly evolving changes.”

That concept is great. And long overdue.

But instead of putting on that commission many of the thousands of lawyers working in the trenches, it seems mostly filled with commercial “litigators” who rarely appear in the well.

If I represented WalMart I’d be delighted with your choices. If I represent the person injured when a stack of merchandise crashed down on her head, not so much.

Let’s review some of those firms on your list, shall we? Gibson Dunn. Sullivan & Cromwell. Paul Weiss. Davis Polk. Bracewell. And Greenberg Traurig has two. To the extent any of their lawyers appear in court on a routine basis, whose interests are they representing?

How many verdicts do you think these lawyers have taken in the last 10 years?

You know what’s missing, right? Maybe some criminal defense lawyers who ply the courthouses every day might have a view on “recommendations to improve the delivery and quality of justice services?” Perhaps their experiences of clients repeatedly leaving work for unnecessary conferences might be a wake-up call to some?

How about personal injury? Back in 2008, a lifetime ago it seems, I bitched and moaned in this space about the spectacular way we manage to waste time in court; Specifically, I pointed to the Brooklyn Compliance Part where I calculated we waste about $10 million in legal time every year. Out of just one courtroom.

Maybe a matrimonial lawyer or two to give their view from inside the courtroom well? Perhaps some landlord-tenant? And not from the landlord side.

Don’t you want a wide number of perspectives on the “fairness, efficiency and efficacy” of the system and how it impacts people forced through the courthouse doors?

Half of the commission, at least, should be people with deep experience inside the courthouses. And people who work on the consumer side of the law as opposed to big business. Not just one or two people.

I published, back in 2008, some suggestions (which I renewed March 13th after the virus upended our world) that might help to bring our courts out of its creaky and arthritic condition. Particularly with those “high volume” parts with which the personal injury bar has a sickening amount of experience.

It was a list that anyone who’d spent time in the court, and given it even a modicum of thought, could have come up with. And lord knows we’ve had time to think about it as we sit on those damn benches, sometimes for hours on end.

How many of the lawyers on that list can appreciate the significance of problems that they don’t experience? And to do so on behalf of clients who may need to move those cases, not stall them, as their lives have been upended?

How many of the lawyers on that list have had clients cry in their offices because their world has come apart?

I know that I take somewhat of a risk in calling you out by name. Should I be fortunate to argue before you, and this post somehow makes it to your inbox, you might remember me. And, perhaps, not so fondly.

But this is crazy. If you want to reform our court system — and I know that you do — you need to stock your commission with people that know what it’s like to sit in a room with 100 other lawyers cooling their heals waiting for their 30 seconds at the bench.

I beg, plead, beseech and implore you. Get people on that commission who represent the consumer side of the law, people who walk the halls of our courts on a daily basis.

My short list of ideas from 2008 follows — a list I created before fillible PDFs and online filing made these things easier still:

First: The court must create an electronic template for its 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: Incoming President of the New York State Trial Lawyers Association, Ed Steinberg, has now been placed on the commission:

“I am grateful to Chief Judge DiFiore, Chief Administrative Judge Larry Marks and Deputy Chief Administrative Judge for New York City George Silver for this appointment. I am proud to join with this distinguished group of judges, lawyers like Hank Greenberg, academics and technology experts to ensure that the court of tomorrow adapts to better meet the needs of our clients. I am most excited to hear from the community on their needs in this new era,” said Mr. Steinberg.

 

March 26th, 2020

Nine Teleconference Tips for Lawyers

While the corporate world may have been using teleconferences for awhile it is not part of the day-to-day activities of most practicing lawyers. And certainly not most personal injury lawyers.

But with the courts substantially closed down — no trials and no conferences — lawyers are turning to teleconferences for depositions and virtual court conferences. So we damn well better get used to it fast.

Having now done three depositions this way over these past two weeks and several other teleconferences, I’ve a few short tips:

  1. Try to use a desktop that is hard wired to the internet to cut down speech delays. You don’t want a frozen image or dropped signal.
  2. Invest $50 in an external mic if your built-in isn’t good. If you want to be heard at a deposition or court appearance, having a distracting scratchy sound is not what you want.
  3. Put a light on in front of you so you are not backlit
  4. Use the mute button when not speaking so as not to inadvertently create background noise from typing, coffee cups, etc.
  5. Create a digital background if needed to eliminate clutter behind you (on Zoom, it’s in the settings). You can add whatever you want with a simple drag and drop of a neutral image if you like.
  6. Dress appropriately. Dress shirt and sport jacket for men for a deposition and the equivalent for women. If a court appearance, put on the suit. Because you might think you are only sitting in your kitchen, but you are really sitting in the judge’s courtroom. It’s not about where you are but about where you will be seen.
  7. For a deposition, do a video dry run with your client in the days before. You want your client to be comfortable.
  8. Do a dry run the day before with opposing counsel and the court reporter if there are any first timers. No one wants to be screwing around with technology when we should be focusing on facts and law.
  9. For depositions, make rules beforehand with opposing counsel regarding exhibits. Will they be marked beforehand and exchanged with the parties, or will you screw around with trying to email them to each other or (with some service) place them into a private digital box to be revealed during the testimony. The only real rule is this: Whatever you decide for one side goes equally for the other.

That should be enough to get folks started.

 

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.