The Future of the Courts in a Post-COVID Era

Summary by Richard Rifkin, Legal Director, Government Law Center

For its fourth and final 2021 Warren Anderson program, held on May 26, the Government Law Center offered an informative discussion about "The future of the courts in a post-COVID era." Three speakers addressed this topic from different perspectives.

Chief Administrative Judge Lawrence Marks opened the program by explaining how the court system, about five years ago, had intended to improve operations by instituting gradual but meaningful changes. However, in March 2020 it found itself with enormous unexpected challenges caused by the outbreak of COVID-19.

Prior to 2020, the court system had instituted the Excellence Initiative, which significantly increased the efficiency of operations and resulted in cases being resolved much more quickly. However, in March 2020, the courts found themselves faced with a totally unexpected challenge. The COVID-19 outbreak forced them to immediately close their doors for health and safety reasons. The question, though, was how do they continue to operate when judges, litigants, lawyers, jurors, and staff were locked out.

Almost overnight, virtual procedures were implemented. As the year went on, more and more virtual proceedings, such as conferences, arguments, and hearings, were instituted and developed. In some ways, these proved to be a significant success. Overcrowded courts, which had been a very large problem, disappeared. Travel and waiting times, which were well established features in litigated matters, basically were erased.

Judge Marks said that the court system realized that there was no reason to go back to many of the in-person requirements even after the COVID health threat had passed. The challenge was to decide what was better accomplished with in-person court appearances and what could be achieved alternatively. The result was the formation of the Commission to Reimagine the Future of New York's Courts.

The Commission's chair, Hank M. Greenberg, was the next speaker. Mr. Greenberg discussed the work of the Commission. He noted that its mission is to "make innovative proposals for the justice system of the future" and offer "practical, achievable recommendations that may be implemented." Six subcommittees have been established: technology, online courts, regulatory innovation, structural innovation, trials, and appellate practice. Some of these subcommittees have already issued preliminary reports and all are currently at work developing ideas and proposals. They are using the lessons learned from operations during the COVID-19 court closures, but they are also considering new practices and procedures that could be implemented beyond the full reopening of the courts.

Lance D. Clarke, Managing Attorney at Cooke & Cooke, then concluded the program by raising some of the concerns of practicing lawyers, especially those who work in a small firm or solo practice. These firms do not have technology departments and many do not even have technology consultants. He urged that their interests be considered as the courts implement new practices and procedures.

For example, he asked that the court system consider the technological costs that might be imposed by any new requirements, taking into account the plight of recent law school graduates attempting to open a solo practice but who may have substantial college and law school debt obligations. He also mentioned the possibility of older practitioners who might well decide to retire rather than take on new challenges presented by any new procedures.

Mr. Clarke also asked that procedures in the lower courts, such as the housing courts, be given attention, as the great majority of our population brought into the court system find themselves in these courts. Many lower courts have overwhelming caseloads. Procedures to relieve the pressures on them should be considered.

In general, the program served to educate the audience as to what may lie ahead, both for the courts and for those who practice as lawyers or appear as parties in the courts.