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New York Litigants Continue to Bravely Navigate the Virtual New World

Author: Sherri Jayson

Guest Editor: Ashley Kaye

March 1, 2021 12:52pm

Background

Almost a year after a near complete shutdown of the New York Court system’s services due to the crippling spread of the Coronavirus, the Court and litigants now embrace new rules to navigate through the muddy waters of virtual litigation.  In February, the Court introduced two new initiatives to promote criminal justice, give civil litigants their “day in court,” and prevent a backlog of cases.  First, Chief Administrative Judge Janet DiFiore issued an Administrative Order outlining the changes.  Second, the Court issued a manual for bench trials.

Effective February 1, 2021, courts adopted a number of the rules previously restricted to Commercial Division cases to apply to all civil cases under the Uniform Rules of the Court.[i]  Judge DiFiore’s Administrative Order 270/20 makes changes to rules governing appearances, conferences, discovery, motion practice, pre-trial, and trial practice.  For example, depositions, which previously had no time limitation, are now limited to seven hours.  Motions for summary judgment will follow a format similar to Federal Court Rule 52.  The changes also include new rules pertaining to the use of electronically stored information, privilege logs, and interrogatories.

Virtual Bench Trial Protocols and Procedures

 While jury trials remain suspended at this time, the Court has seen an increase in bench trials.  In her February 15, 2021 message, Judge DiFiore noted, “843 virtual bench trials and evidentiary and factfinding hearings were commenced last week across the state[.]”  Accordingly, on February 15, 2021, Judge DiFiore also announced the Court issued the Unified Court System’s “Virtual Bench Trial Protocols and Procedures.”[ii]  She stated the Court developed new rules and procedures to, “capitalize on all of the local innovation taking place around the state….”[iii]

This progress, however, is not without its hurdles and pitfalls.  Courts around the country have yet to develop protocols for virtual jury trials and proceedings.  Poor or limited internet access and connection, as well as a lack of technological understanding, may plague the underprivileged and elderly.  Even lawyers face technological issues.  Early last month, the world got a glimpse of our everyday challenges when a virtual hearing went viral after one of the lawyers appeared as a cat due to a filter on the Zoom app.

Takeaway

 Virtual trials also raise concerns about the jury’s main function – their ability to assess the witnesses’ credibility – as well as methods to limit their access to information or evidence outside of the “courtroom,” which may affect or influence their decision in the case.  Litigants, judges, and lawyers alike will have to continue to adapt and improvise in the world of virtual litigation.  However, even when in-person appearances resume, many of the rules adopted because of the Coronavirus will help maintain a more efficient and cost-effective justice system.

[i] https://www.nycourts.gov/LegacyPDFS/RULES/chiefadmin/AO-270-20with-ToC-and-Exhs.pdf

[ii] https://www.nycourts.gov/whatsnew/pdf/VirtualBenchTrial-Protocols-2112021.pdf

[iii] Message from Chief Judge DiFiore February 15, 202 Message from Chief Judge DiFiore February 15, 2021.1.

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