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.
“It is time for NY to move into the technological age…” …”Skype” should not be mentioned as a tech advanced platform. That’s akin to having – and using – an AOL email account! The platform is g-d-awful and there area many better solutions – including Google Hangouts, Zoom, etc….Just sayin’…
Tough customer, you are.
Jane is correct, but I’d go a step further. Eric’s idea has merit, but I would claim that none of the chat apps mentioned meet the spectrum of requirements that a truly secure and broadly useful judicial meetup app should have. It should have features specifically tailored to this type of usage and this category of users. Time for a well-heeled investor to get on it.
Hey, Mike Bloomberg — you on here?
Standards and Goals dates should also be pushed out at least six months to a year. No one should be packed into a jury pool.
An email a colleague received from the NYS Academy of Trial Lawyers:
An Announcement from the Unified Court System Second Judicial District, Supreme Court
RE: Notice of Revised Pre-Note Procedures
In an effort to to streamline court procedures, Kings Civil Term is planning to eliminate Intake/Preliminary Conferences, and instead issue a Uniform PC Order (and Supplemental City PC Order) to all parties upon the filing of the RJI.
Cases will no longer be called for stand alone PC or ADR Conferences. Instead, the first scheduled appearance will be at the Compliance Conference, at which time an ADR Conference will also be held.
Foreclosures, Matrimonial, Commercial, Guardianship, Condemnation, Tax Cert. and Special Proceedings will remain unaffected.
Linked hereto are draft Preliminary Conference and Supplemental City Preliminary Conference orders.
In an effort to to streamline court procedures, Kings Civil Term is planning to eliminate Intake/Preliminary Conferences, and instead issue a Uniform PC Order (and Supplemental City PC Order)
Ever so slowly, step by step and inch by inch, New York creeps toward modernity.