The Cornona VirusMarch 18, 2020

Because of what is going on in the world and our collective practices, I want to halt, for a second, the sporadic rolling debate I have here – often with myself – regarding fee schedules, conditions precedent to coverage, policy deductibles, NF-10s, 5102(d) – among other things. The more pressing issue we probably have is where do we go from here.

I am writing this essay more as to give my thought process of what happens occupationally when life resumes. First, we need to conquer this monster that I think has enveloped this country and the world. We can leave Washington’s response and the Trump administration’s initial indifference to the annals of history and for my Facebook feed – although I am done there even trying to cull fact from fiction. As our governor said today, and he is right, that is behind us.

We will get through the panicking, the short term food shortages, the massive drop in the stock market, the impending quarantine, the collective suffering and the drop in committed torts, which “employs” everyone (to some extent) who reads this blog.

Whether it is May or October, this will be over. Rip Van Winkle eventually woke up, right? What I want to write about – and it is more tangential at this moment – is what happens to a sizable piece of our practice. And this does interest me on a few levels. To me, what are we are going to learn is that crowded special term parts, stuffed CCP parts, standing room only IAS parts and cluttered TAP parts are vestiges of a bygone era.

The out of state practitioners or those who have a a multi state practice (outside the northeast) know very well that court cases up until trial are often handled telepathically, through skype or other video-conferencing mediums.

To give you an example, absent a “special set hearing”, Florida courts allow and encourage motions to be handled through telephone appearances. They call that the 8:30 5 minute calendar. California operates similarly.

This crisis has commendably forced Court administrators to require PC’s, CC’s and motions to be handled through telephonic appearance or Skype. In fact, argument on App. Div. First Department matters are now being done through Skype.

I received an elaw update that Civil Queens is looking to handle their motion calendar similarly. In reality, it should not have taken a terrible crisis to force this to occur. New York desperately needs to move out of the 20th century in terms of its appearances and lack of e-filing (especially in the non-superior Courts)

For those who complain that the motion calendars are too long, the simple answer is probably to shorten the calendars out to no more than 20 final motions a day, carry the calendars out 2 or 3 years if necessary and the judges (who will not have too many final motions per day) should either grant, deny, grant in part or deny in part the motion at the hearing and make the winning party e-file an order. (Yes, e-filing is necessary to make sure all papers are properly collated – this cannot work with the problematic 1970s system that represents the Civil Courts paper filing regime)

Some novel cases obviously should be submitted. And of course, courts that do not have large volumes can follow the Nassau, Suffolk, Westchester approach and take everything on submission.

The final trials should be pushed out long enough so all motion practice that is possible has long since passed and a final trial date really does mean that. The court should encourage video depositions also to allow a greater ease of use on medical type cases. Orders of reference should be issued for simple framed issue no fault trials and, while you may not like to hear this, the Civil Court index number fee should probably triple to afford the courts the resources and the ability to implement these solutions.

The point is – and this is just an essay of some thoughts – is that this crisis is forcing us to do better.

I understand there will be those who lose out. Per diems will be less needed. Associates who only exist to adjourn cases and to show their faces in Court and AAA hearings may not be as necessary. But a more fluid system that can work more remotely, more pointedly and which – let’s be honest – is the wave of how law is really practiced and how society works, will help our broken court system. Because, let’s also admit this fact – the Civil Court system is broken. You cannot shoe horn a 1970s methodology into a 2020 practice.

And finally, stay safe. Travel only as needed, and look out for your neighbor – that could be you one day.

Leave a Reply