PART 2: PROTECTING PUBLIC HEALTH AND IMPROVING EFFICIENCY WHEN REOPENING NEW YORK COURTS

We at Callahan and Fusco hope that you and your family are staying safe and healthy in these difficult times. Recently, Managing Partner Christopher Fusco began a series of articles discussing opportunities for innovation as law firms, parties, insurance companies, businesses and courts navigate and eventually emerge from this unprecedented crisis. This article is offered in the same vein, to discuss and offer creative solutions for New York’s Supreme Court to simultaneously protect public health, improve efficiency, and save parties on all sides costs and time while managing ongoing litigated matters, especially in the busy courthouses of New York City.
 
Civil litigators practicing in New York City’s Supreme Court courthouses are quite familiar with the daily sea of humanity one must navigate to seek justice in the civil matters that they are handling. Lawyers and litigants are often packed into small, minimally ventilated courtrooms, shoulder-to-shoulder seated and standing, waiting for hours for their conferences, hearings and other proceedings. In-person appearances are often mandatory for simple tasks like adjournment requests, submission of motion papers and preparation of discovery scheduling orders. It is not unusual for an attorney to wait for hours for their matter to be called, only to be told that their case has been moved to the back of the line due to an arcane procedural technicality. The hallways of the courthouses provide no refuge, as they are often treated as extensions of the courtrooms for purposes of such appearances. This COVID-19 pandemic has now underscored that this way of doing business is not only inefficient but could also pose a hazard to public health and serve as a conduit for the spread of disease.
 
This is not to fault the New York Unified Court system, which in the past did its best to manage the extreme volume of cases pending within its courthouses. However, there is certainly vast opportunity for improvement that would both promote public health and save litigants and attorneys time and expense. For instance, neighboring jurisdictions like New Jersey, along with some federal courts, permit parties to electronically file discovery scheduling orders, adjournment requests and other requests for court intervention, and the courts electronically approve and provide decisions on those documents and issues. New York has not yet adopted this procedure, often requiring in-person appearances even when such papers are filed in its own online system and could be addressed without the need for an appearance.  Furthermore, courts across the country, including the Kansas Supreme Court and Florida Supreme Court, are demonstrating that even high-level, substantive legal issues and appearances can be effectively managed virtually via videoconference. Even changes such as “staggered” calendar calls, where matters are called at set times throughout the entire business day, could aid in reducing density in the courthouses and provide a modicum of certainty to attorneys and litigants as to the time and expense that can be expected in making such an appearance.
 
The horrific nature of COVID-19 has forced us all to reevaluate the necessity of in-person contact across all aspects of our lives. We all expect that when this pandemic abates, we will need to adapt to a “new normal,” and even if COVID-19 is eventually eliminated with vaccines and mass immunity, the danger posed by the next possible pandemic will remain. Like all other institutions, the courts will need to adapt to this “new normal,” not just to ensure continued efficient operations but also to maintain the public’s confidence that they will be able to access fair, equal justice in a safe manner.