As Covid-19 wave grows, New York litigators say this time they're prepared
11/18/20 REUTERS LEGAL 20:16:21
Copyright (c) 2020 Thomson Reuters
Caroline Spiezio
REUTERS LEGAL
November 18, 2020
A view of the table, where the plaintiff and defendant will sit at and look towards the judge's chair (rear L), the witness stand (rear R), stenographer's desk (rear C) and jury box (R) in court room 422 of the New York Supreme Court at 60 Centre Street February 3, 2012. Picture taken February 3, 2012. REUTERS/Chip East (UNITED STATES - Tags: CRIME LAW)
(Reuters) - When New York's state courts halted new jury trials and grand juries on Monday due to an uptick in COVID-19 cases, it felt like deja vu. The state had opted for a similar pause in March - when New York was the pandemic's epicenter - with severe financial consequences for some law firms.
But corporate litigators and trial lawyers are hopeful this time will be less disruptive, attorneys at large and small firms said this week. New York lawyers and courts have spent eight months adapting to the pandemic, they said, expanding their ability to litigate via virtual hearings and e-filings. And there are still fewer restrictions now than in March, they said.
When reached by phone Tuesday, Domenick Napoletano, a solo practitioner based in Brooklyn, was in the middle of filing an emergency order to show cause - online. It's something he couldn't have done when the pandemic first hit, he said.
"It's not easy, but it is what it is," he said. "People are still working, even though you don't get the right to get in front of a jury."
Brad Karp, the chair of New York-based Paul, Weiss, Rifkind, Wharton & Garrison, said in an email he expects the legal community will better adapt to the cessation of state jury trials and grand juries this time.
The profession has discovered "technology can be an effective, albeit imperfect, substitute for in-person court proceedings; bench trials can be an effective substitute for jury trials; and mediation can be an effective means of resolving disputes in the absence of an in-person, in-court alternative," Karp said.
Nicholas Gravante, a managing partner of Boies Schiller Flexner, added that halting jury trials has a limited impact on major law firms litigating complex disputes, since those cases "more often than not do not go to trial." Big Law litigation departments' bread-and-butter practice, including pretrial discovery, motion practice and depositions, will continue remotely, he said.
New York shut down rapidly in March, with law firm offices and courts going from bustling to near empty in the span of two weeks. Its court system stopped accepting "non-essential" filings, including civil lawsuits, and moved criminal court and family court matters online.
Law firm caseloads in New York plummeted in April, down about 50% year-over-year by mid-month, according to data collected by legal tech company Clio, prompting several large firms to cut attorney compensation and hundreds of smaller ones to seek federal aid.
New York courts started rolling back restrictions in spring, but much of litigation stayed remote. Manhattan state courts just began allowing grand juries again three weeks ago. The Southern District of New York resumed jury trials this fall and hasn't since halted them. The Eastern District in late September laid out plans to restart jury trials.
Hank Greenberg, a shareholder at Greenberg Traurig who is leading a commission tasked with examining how New York courts can best use technology, said courts are in "a much better position" than before as COVID-19 cases spike again nationwide. But pausing new jury trials and grand juries will still significantly impact some litigation, he said.
Napoletano warned that new disruptions could be "devastating" for attorneys, especially those at smaller, plaintiff-side firms whose immediate financial stability depends on cases involving jury trials.
There is no sign that more federal aid for small businesses is coming soon, he noted.
"I know a lot of people are very angry that things are slowing down again," Napoletano said. "But the alternative is we, God forbid, pass away from this."
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