A 12 months of COVID – And three Litigation Adjustments

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A Year of COVID - And 3 Litigation Changes

You know what that is

It’s been a year since I last walked into a proper courthouse. In mid-February, I appeared on the jury selection on a case of misconduct in the Bronx. There was some money on the table, but I was pushing for better.

But the news. The virus was on the news. It wasn’t here yet. As far as we knew. But it came. And when it came it would be hard and the world would be closed.

It could be days waiting for a judges room in the Bronx. After that, more days were wasted waiting for a judge’s assignment. If I chose this jury, my gut would tell me that I would never make it to judgment. And then what? How long would it be before my customer had another chance?

The client agreed to the settlement and I hurriedly withdrew from the courthouse.

It was an unusually warm February day in New York, but I still pulled on my normal winter gloves as I took the subway from Yankee Stadium Station near the courthouse. After all, nobody knew exactly how the virus was transmitted. I haven’t touched anything. The virus was new.

And a couple of weeks later, news helicopters spun overhead when my home was hit by the first East Coast safety zone. The virus was not included, of course. (See: Greetings from the Containment Zone)

What did we learn in the last year? A lot of. But I’ll only cover changes to the process system. Because that’s what you came for.

Here we go with three critical changes; The first two have already been implemented (will they resume when they finish?) And the third will clear the mammoth court jam caused by the virus. Given that they are collectively changing the way litigation has been conducted over the past 200 years, I would consider this to be significant:

Many court conferences waste time:: Anyone who has been to the high volume portions of the New York courts knows this problem. Hundreds of cases may be on a calendar call. If you’re part of this cattle visit, you will often get a new appointment just a few months later. Lawyers have to haul to the courthouse for this?

If the case is still discovered, most issues will be resolved by having a lawyer in the hallways. If you have a real problem, wait (and wait and wait) for a conference that lasts 5 minutes when it’s your turn at the bank. But those five minutes could take a whole morning of traveling, waiting, waiting more, discussing, and then traveling again. It’s been like this for ages. (See: How a Brooklyn Courtroom Wastes $ 10 Million a Year)

On March 13th last year, on the orders of New York Chief Administrative Judge Lawrence K. Mark’s virtual conferences were started to reduce pedestrian traffic in the courthouse. (See, will coronavirus oust New York’s colonial dishes?)

Lawyers now meet and confer frequently to iron out detection problems without conferencing. Unfortunately it wasn’t a habit before because one side of the equation is paid by the hour. But now, probably only real problems will see a judge or legal secretary (virtual).

This has worked very well for routine conferences and I hope our judiciary will continue this pattern after the pandemic ends. (And it will take over a day. I think it will, I think it will, I think it will.)

Put on a suit, spend 10 minutes in front of the computer, and that’s it. Smaller discovery problems do not need to be blown for half a day.

Virtual deposits work:: While some defense lawyers tried to use the pandemic as an excuse for the delay (“We need to see the witnesses face to face!”), That door has been slammed shut by the courts. The payments were made virtually. (See: New York Judges Order Virtual Deposits Due to COVID-19)

And you know what? They worked fine. I have heard few complaints from lawyers on either side. And if you want to be in the room with your own client, you have it. But it is not necessary for others to be there if they do not want it for health reasons or for reasons of comfort. There is no reason why I shouldn’t be able to drop someone off in Albany or Buffalo while sitting in my office if I choose to do so. Pandemic or not.

And if someone thinks they need to see the witnesses’ reactions better, they can always record them. This is of course not new. We have had this option for many, many years, but it is very much the exception when it is done, not the rule.

A malevolent law is required to postpone cases:: Cases will not be settled without a jury. We knew that beforehand, of course, but now it’s really coming home. Without the threat of a jury in the box, the incentive to settle liability insurers disappeared, even in clear matters. Worse, can now offer even fewer pennies on the dollar if the injured plaintiff was in additional financial distress (and may rely on tax-funded safety net programs to get through).

Insurers have no drawbacks in terms of delay, delay, delay. You just keep the rewards (nicely invested, thank you) while you postpone the benefits. The pandemic is sweet business for them while the victims (and taxpayers) bear the costs.

And now with the resulting mammoth jam in the courts due to unsolved cases and the cutback in the courts due to nationwide financial bottlenecks (older judges are no longer certified) there is Years to wait ahead.

But with a good bad law, that problem goes away. Hang the sword of Damocles over the heads of insurers and watch their profitable contradictions vanish. (See why New York can’t be like Alabama)

There is no excuse that New York doesn’t have a malicious law with real teeth, as it has real benefits: victims become fair, overburdened court budgets are relieved, taxpayers have less to finance the cost of injuries, and insurance companies just have to do that what they always had to do (but were never forced to).

So there you have it, two very significant changes in the way the law has been practiced over the past few hundred years that we should keep doing. And a legislative proposal to keep the wheels of justice rolling efficiently.

The pandemic has caused exceptional heartache in a variety of areas. We have adapted a little to it – and together with you, I can’t wait to burn these masks. However, some adjustments are worth keeping and a legislative change is long overdue.