Symptoms of Long COVID in the Court System Include…

By: Katryna L. Kristoferson and David Paul Horowitz | October 16, 2023

Introduction

Early on in the life of this column (May 15, 2023), we touched briefly on the changes in practice since the pandemic, while discussing more globally the changes in law practice. Here, we want to delve deeper into the ways COVID altered law practice and the lasting effects.

In brief: Law practice in New York state will never be the same.

New York state courts had their own phased reopening plan in addition to the statewide four-phase reopening plan announced by the governor.

Phase 1: Prohibition on Most Practice

Friday, March 13, 2020: the last “regular” in-office workday for both us and many attorneys in New York state (recall the alleged “two-weeks” everyone was supposed to work from home). Just six days prior, a state of emergency was declared in New York state (EO/202). Following this, all non-essential businesses statewide were directed to close in-office functions, effective March 18, 2020, by order of the governor (EO/202.6).

On that same day, the administrative judge issued an order banning any non-essential filings in New York state courts (AO/78/20). Days prior, the courts halted all civil jury trials in which opening statements had not yet been made (AO/68/20). The“two-week” work from home mandate turned into weeks, followed by months.

Also in March 2020, the governor issued the EO tolling the statute of limitations on all matters (EO/202.8). At the time, the toll was only supposed to last to April 19, 2020. As we all know, it was extended months past this date.

No new (non-emergency) actions. No court appearances. No paper copies. No depositions. What’s a lawyer to do? For a while, like many professions, the majority of lawyers were sidelined. The lack of court involvement, and hence oversight, resulted in forward case momentum in civil cases slowing to a crawl or, in some cases, stopping completely.

Phase 2: Remote Proceedings for All

As it became clearer that the pandemic was sticking around, in came Skype. While the use of video technology in essential cases was introduced quickly, it took a little more time for non-essential matters. Regardless, video conferencing proved to be a test of everyone’s tech skills (or a lack thereof—think the “I’m not a cat” Texas lawyer) and perhaps a little too close a look into everyone’s personal living spaces and attire (anyone remember the administrative judge’s March 18, 2021, memo advising of appropriate decorum during virtual proceedings?).

Then, Microsoft discontinued the use of Skype— perhaps just as everyone was getting the hang of it—and replaced it with Teams. A fun little curve ball in the limited court-related interactions through the pandemic.

Of course, many attorneys opted to use Zoom, but the New York state courts have stuck with Microsoft-based programs (Skype, then Teams).

Gone were the days of gathering hundreds of attorneys for calendar calls at the Bronx County Court, or dozens of attorneys crowding the halls outside courtrooms in New York County—instead, court personnel and attorneys gathered remotely, early on logging on from home in virtual rooms for conferences. No longer did we spend10 minutes, 20 minutes or more negotiating discovery orders with adversaries on the benches in the halls of the courts, and we no longer had serendipitous encounters with old adversaries, colleagues or classmates.

Phase 3: Lifting the Prohibitions

While some of the procedures implemented during the pandemic were beneficial and remain in place today, others have been done away with. Down to present days, virtual court appearances and depositions have become a regular part of practice. In fact, virtual appearances have begun to be integrated into trials (more on that later).

As varying counties met the set criteria of the phased reopening plan, courts gradually began reopening, at first with very limited in person operations, and in November 2020, the toll on statutes of limitations was lifted. As discussed in a couple of recent Second Department cases, this toll did not add 228 days to the statute of limitations in unfiled actions, but tolled (paused) the deadline in which commencement was required (Ruiz v. Sanchez, 2023 NY Slip Op 04608 (2d Dep’t 2023); Williams v. Ideal Food Basket, 2023 NY Slip Op 04436 (2d Dep’t 2023)).

While Ruiz and Williams make clear that the toll merely paused the running of the statute, there are still some remaining questions. How, if at all, does the toll impact the statute of limitations for an infant where the statute does not begin to run until the infant is 18? Does it only have an impact if the infant turned 18 during the toll? It’s unclear how the courts will interpret the toll’s impact on these claims.

Plenty of claims arising under New York state law have a statute of limitations that run several years, and understanding the impact of the toll on your clients’ claims is important.

In May 2021, the courts saw the return of court staff to in-person work. Finally, in June 2021, the state of emergency was lifted (EO/210).

Phase 4: Practice Today

Along with the use of video conferencing, COVID brought with it a variety of changes to court procedures and the practice of law—most notably, the adoption of numerous Commercial Division rules.

Long heralded as an incubator for wider change in the New York courts, Commercial Division rules are intended to be drafted in a way that encourages a more efficient, streamlined court process. In an effort to streamline proceedings at a time when, frankly, nothing was really flowing, courts looked to make things efficient.

Of those rules adopted, effective June 13, 2022, under AO/141/22, most notable were perhaps: Section 202.8-b Length of Papers, Section 202.8-g Motions for Summary Judgment; Statements of Material Facts, and Section 202.20-i Direct Testimony by Affidavit.

The Commercial Division has continued to adopt and amend rules to comport with the changes in practice since 2020. Rule 37, adopted under AO/339/21 on Dec. 7, 2021, set forth specific criteria for the use of remote depositions.

Most recently, Rule 32 of the Commercial Division has been amended to allow remote testimony at trials, simply requiring notice to the court (AO/216/23). Effective Aug. 31, 2023, the rule was amended as follows:

Rule 32. Scheduling of witnesses. At the pretrial conference or at such time as the court may direct, each party shall identify in writing for the court the witnesses it intends to call, the order in which they shall testify, the estimated length of their testimony and whether the witness will testify in person or through the use of video technology, and shall provide a copy of such witness list to opposing counsel…

Moving Forward

In mid-September, we both attended an in-person pretrial conference in Bronx County, and it was interesting to be back in the courthouse. David had had two prior court appearances in Bronx County post-March 2020, a courthouse he frequented, on average, seven or eight times a month pre-pandemic. This is consistent with our appearances in other counties.

Depositions have picked up over time and are approaching pre-pandemic frequency. Case commencement and court filings have never been easier with the almost universal availability of NYSCEF. OCA statistics showing total statewide new case filings demonstrate a significant drop from 2019 (3,012,467) to 2020 (1,963,569) and a slow climb thereafter in 2021 (2,167,475) and 2022 (2,261,997). Total cases disposed by verdict and decision offer a bleaker picture, from 2% in 2019 to 1% in 2020 (and continuing at 1% in 2021 and 2022). See New York State Uniﬁed Court System 2022 Annual Report.

On the other hand, remote proceedings cannot duplicate in-court proceedings and in- person depositions. We are concerned about the ability of new lawyers to develop skills and relationships without the type and frequency of pre-pandemic in-person appearances and other professional interactions. In-person CLEs, often an opportunity to hobnob with colleagues, are virtually non-existent, and bar association meeting, dinners and cocktail hours are only now resuming pre-pandemic frequency, although there is a concern that newer lawyers are not attending these functions in numbers their more experienced colleagues do.

In our experience, these interactions were important components in our professional development.

Conclusion

Again, the practice of law in New York state will never be the same. For better or worse? Time will ultimately tell, but many of the changes that allow for more practical New York practice are certainly welcome.

Please see ALM.com for the full printed article.