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.

 

September 19th, 2019

NY Bar Associations Failing To Lobby for Solos and Small Firms

Eleven years ago I described in this space how one Brooklyn courtroom alone was likely wasting $10,000,000 in legal time, each year. Yeah, I know what you’re thinking. But I’ve actually been blogging longer than that.

Our courts are chock full of inefficiency, and the worst hit in this morass may well be the small and solo firms in the day-to-day matter of trying to get routine tasks done. Our bar associations have this odd habit of catering to the Big Law. Small Law, it seems, doesn’t really matter.

And so, on Tuesday when I saw this letter to the editor of the New York Law Journa, which touched on some of the points I made a decade ago, I reached out to its author for permission to re-publish it here, to widen, ever so slightly, the audience.

For the non-lawyers who may be reading there’s a bit of inside baseball going on in this letter. But this gives you the gist of how sexy our practice really is on some days.

Without further ado, I bring you Sid Baumgarten, who has been around the block a few times as a general practitioner with over 40 years of experience: ——-

Regarding your story about “Millenials Skipping Bar Meetings,” I believe the “syndrome” is not limited to a certain age group. The bar associations here in NYC are becoming irrelevant. (Note that the NY County Lawyers Association has sold its building on Vesey Street.)

I am an octogenarian and I serve as vice-chair of the NYCLA committee on Law-Related Education. Our usual attendance at this important committee headed by retired Justice Price is about 6-10 members. Other than those meetings I rarely attend bar association events.

I attribute the decline in attendance to a variety of reasons:

First, I expected these associations to seriously lobby for needed reforms in the judicial system, but they have rarely done so.  On those occasions, it is usually when the fortunes of the “white-shoe law firms” are at stake. There are few, if any, efforts to solve problems for the small firms or solo practitioners.  I have importuned them on a number of occasions to speak out on issues that affect the small firms and solos, to no avail.

In early 2018, federal Judge Jed Rakoff spoke about the high cost of legal services and I wrote to the NY Law Journal that “Judge Rakoff did not mention that the judges themselves, as well as the court rules have made the legal process into a nightmare for lawyers, with particular impact on the small firm or solo.” I addressed a few of those problems.

A) The Preliminary, Status and Compliance Conferences where hours are spent just to fill out a form which then gets rubber-stamped by the judge or court attorney.  Or the judge or court attorney spends a half-hour with one case discussing discovery issues while another 50 lawyers are forced to sit around and wait.  An entire morning spent—and billed to the client—for matters that didn’t need to be before the court in the first place.When I started to practice law most of these issues were resolved by the attorneys themselves.  The lawyers ‘charted the course of litigation.’ In a current case I am handling, there are at least 14 lawyers involved in a personal injury case, most of them representing various defendants.  Compliance conferences were really a waste.  Not once have all the attorneys been able to attend each scheduled date, so it keeps getting adjourned.  Mornings wasted and billed to the client.

B) I have questioned also the matrimonial practice of requiring the parties to be present for each and every court date. Why? Is it necessary for the client to take a day off from work to just stand there while the lawyers consult with the court on routine preliminary matters?  Also, when was it divined that when a matrimonial settlement is reached and the parties have all signed written, notarized agreements, there must now be an allocution—as if they were entering a plea to a felony?

C) Among the many mysteries of our system here in NYC is the time it takes to get a judgment entered.  Where are the bar associations lobbying to give the county clerks sufficient resources to move matters more quickly? An uncontested matrimonial judgment can take months to be “entered.”  I had one in Dutchess County and I had the final judgment in hand the same day it was finalized and signed by the judge!In one of my cases where summary judgment was granted and I submitted a $200,000 Judgment to the county clerk it took more than three months be get it “entered.” A civil court judgment for less than $4,000 also took three months to be entered. In July 2016, I wrote to the president of the New York County Lawyers Association regarding each of the matters set forth above.  No reply.

Second, the bar associations, in addition to taking up the foregoing issues, should be focusing on some other interesting anomalies.  For example, I have volunteered to arbitrate fee disputes pursuant to the court rules and most have involved from a few hours to an entire day. No pay expected!  But why are we not at least offered CLE credits?  When I volunteer for the Empire State Moot Court trials as a judge or scorer, I get a few CLE credits for just a half-day. Those are student competitions; the fee arbitration involves real clients and real lawyers and oft-times substantial sums involved—and the arbitrator gets nothing.

Third,  the bar associations should be furious with the current state of the IAS system which now requires the practitioner to know or read the individual rules of over 200 judges. There should be uniform rules—-period.

More than 40 years ago I served as law secretary (now “court attorney”) to the administrative judge in Queens Supreme Court. At that time, before the IAS system was instituted, we had special term part 1 for contested motions and special term part 2 for ex parte matters.  Most of the motions in special 1 were involved with pre-trial matters, discovery, compliance, etc. and a small number of dispositive motions.  Most were decided in a few days, some in a few weeks and rarely more than that, except for highly technical cases requiring input from the law department.

At that time we saw no need for the “vertical” IAS system, which in retrospect has not improved efficiency or expediency. I now have dispositive motions pending for as long as 13 months in Supreme Court.  Moreover, the IAS judges routinely refer settlement conferences to another judge or referee and also often send the case to another judge for trial.  So much for the “vertical” IAS system!

Finally, I lament the loss of the collegiality among lawyers and judges.  Everyone is so uptight about political correctness and/or being viewed as not “tough enough” by their clients, it has produced an iciness where if you even say hello to your adversary it is viewed as inappropriate.  We used to have lunch with our adversaries and enjoyed each others company and anecdotes without being accused of weakness or worse. That atmosphere has, no doubt, made it less enjoyable to attend bar association functions or to participate in their committees.

There is no time to explore other impacts on attorneys who practice in the state courts, not just the millennials. In my view, litigating in the New York courts has become so frustrating that I know many young attorneys who have given up litigation totally. These are what I think the bar associations should be dealing with every day!

My colleagues, of all ages, often wonder why they keep paying dues to the bar associations.

Sidney Baumgarten is a litigator in New York City and a member of several bar associations.