The “New Normal.” Are We There Yet?
Not yet. We are, however, presently living in the “New Abnormal.”
What does that mean for people who look to the courts to resolve disputes? The answer to that question is constantly evolving. What follows is a snapshot of how things stand today, the day this article is published.
When the New York State courts essentially shut down in mid-March, procedures were established to handle “essential matters,” such as criminal arraignments. The filing of new lawsuits and electronic filing, which is how motions and other court-related documents are served on opponents and filed with courts (on non-essential matters), were prohibited; court conferences were canceled or adjourned, and discovery in most existing cases either stopped without consequence to the parties or were adjourned as agreed upon by the parties. Court proceedings such as hearings or trials on nonessential matters were adjourned.
Now, where are we almost three months later? The New York State courts have been moving, incrementally, to “open up.” Now, electronic filing is permitted on non-essential matters, courts are conducting conferences and hearing arguments on motions and appeals virtually, over Business Skype, and cases are again being referred out for virtual mediation. In a county-by-county approach, courts have been gradually opening. The filing of new lawsuits is now permitted.
Applicable statutes of limitations have been tolled, most recently to July 6, 2020, by the Order of Governor Cuomo.
In the Southern District of New York and Eastern District of New York, there has been no prohibition on the filing of new cases. However, protocols exist for the handling of criminal and civil cases. Jury trials were halted and many court conferences have been conducted virtually.
So, where does that leave you? If you are a party to an existing lawsuit in a New York State court that has remained dormant since mid-March, speak with your attorney to discuss what’s next in the lawsuit and how to proceed. For example, if you were engaged in discovery, can it proceed? How can it proceed? If you were about to consider making a motion for summary judgment, you can now make it.
Discovery can present difficult questions. For the most part, parties should be able to move forward with document requests and responses as well as interrogatories. Document production can take place if the party and her attorney have access to responsive documents. Depositions, on the other hand, present more difficult challenges. They are still very difficult, if not impossible, to conduct “live,” as we are accustomed to doing. They can be conducted virtually — however, would doing so be advisable given the facts and circumstances of your case? The answer is case-specific.
•How complicated is the case?
•Are there a lot of documents?
•Is the witness to be deposed a party, or key witness?
•How necessary, or even desirable is it to have your attorney with you, in the same room, when you are being deposed — or for your attorney to be in the same room with the person he or she is deposing?
There is no one-size-fits-all answer to any of these questions, but it is something that you should discuss with your attorney.
If you want to try and settle the case, how can you do that? Can that be accomplished by the attorney alone, or at a court conference, or with the help of a mediator? As discussed in a prior article, mediators are now conducting mediation virtually, on Zoom or other platforms. Parties have a great opportunity to use this time to settle their dispute and get it off of their plates. And, there is no need to wait for a judge to send you to mediation. If you know a mediator you trust and like, call her; if you don’t, look at the list of neutrals on the court’s website. If you prefer to use a third-party provider, such as JAMS or AAA, call them.
This leads us to the “New Normal.” Without a doubt, the courts will operate differently once all restrictions are off. At the very least, courts may be more willing to conduct conferences virtually, without wasting the attorney’s time (and client’s resources) appearing in court for conferences, where they may have to line up with attorneys on many other cases in order to spend 15 minutes with the judge or law secretary. Also, while there are significant advantages to conducting mediation live and in person, there may be many cases where doing so virtually may be preferable. These are just a few examples. Rest assured that lawyers and the courts will be thinking about how to best use the practices and lessons we have learned during this crisis when we emerge from it.