Three years ago a public health emergency was declared on a federal level. I was picking a jury in the Bronx as stories of the virus spread, and I quickly settled and got the hell out of there. I knew there was no way I would make it to verdict, and assumed it would be a long time before I would be able to resume. It was my last live court appearance before the world shut down.

That emergency will end on May 11th.

Since then the courts and lawyers have learned to navigate the world of litigation in a virtual manner. As the emergency sunsets, we should now utilize the new tools that we have all learned to use. It will be better for lawyers, clients and the courts.

In particular, this applies to the many, many court conferences that lawyers are compelled to attend that are better handled virtually. Some of these were little more than going to court, checking in in a 100+ case calendar call, and getting a new date to come back. Seriously.

Back in November 2008 I bemoaned the vast waste of lawyer resources by looking at just one Brooklyn courtroom, and conservatively estimated that $10M/year was being wasted there.

The majority of the time in that particular room was dedicated to preliminary conferences, compliance conferences, and discovery motions. Easily 95% of the issues were worked out by lawyers in the hallways, and then proposed orders submitted for signature. Hundreds of attorneys would file through this courtroom each day, and the 10 minutes of work you needed to do would take a few hours.

We need not go back to those days. There is no compelling reason that lawyers cannot be forced to “meet and confer” by phone to work things out. While it’s the standard in federal court, it was rarely done in state court.

Live court appearances have their place, of course, especially for esoteric motions (rare in the personal injury field where most are routine claims that the other side is simply failing to comply with a prior order). I would happily appear for summary judgment motions, pre-trial conferences and settlement discussions. But I do not want to come because the case is on for trial the first time, just to get an adjourned date three months away.

Unless you bill by the hour, no one wants to walk into a courtroom and see 100 lawyers waiting. Or 50. Or even a dozen.

As we pull out out of the pandemic our courts ought to appreciate that forcing lawyers to work stuff out that can be worked out in the hallway will also save them time. We have new tools and new ways of doing things. We can do this. Those tools and skills ought not be squandered.

And if lawyers resist the efforts to “meet and confer,” or create more problems by ignoring prior discovery orders, then the courts should start assessing costs. In New York, this isn’t much on a monetary basis as it is limited by CPLR 8202 to just $100. But no one wants those assessed against them, despite being minimal, and it may help to decrease the court’s workload when they see unreasonableness.

New York’s trial courts, of course, are legendary in ignoring any form of costs or sanctions. Our appellate courts, by contrast, will often impose costs. (For the out-of-town readers, this has nothing to do with legal fees, but things like court fees and printing fees.)

So as we emerge into the bright light of day post-pandemic, the courts should seize the opportunity to make the most of the skill and tools we have acquired these past three years, and improve upon what existed before.

For the love of God, please, no more cattle calls.

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.