The last few weeks have brought unprecedented change to the world—the legal world no exception. Offices and courts are closed. Court conferences and depositions are adjourned. Attorneys settle into remote-work environments. The coronavirus pandemic has changed the legal and business landscape for the foreseeable future, and no one can say with any certainty how long these changes will last.
But for many of our clients—especially plaintiffs or other parties pursuing litigation to recover money or otherwise change the status quo—sitting on the sideline while the coronavirus crisis runs its course is not an option. Indeed, while the inevitable delay caused by office and court closures and social-distancing protocols will benefit some litigants, for others, forward progress is more important now than ever.
And as attorneys, we must find a way to balance making reasonable accommodations for opposing counsel and other parties affected by the coronavirus crisis and moving our clients’ cases forward.
With Limitations and Restrictions, New York Courts Remain Open for Business
New York State courts have postponed all civil trials and adjourned virtually all conferences and oral arguments. And just yesterday, the Chief Administrative Judge issued an order “strongly discourag[ing]” any litigation activity that requires in-person appearances, and encouraging parties to adjourn discovery and motion deadlines that a party or counsel is having trouble meeting because of the coronavirus crisis.
But most state courts remain open to hear “essential applications.” Motions that can be submitted electronically will be submitted to the assigned judge for decision without oral argument. And conferences that require an appearance can be done by Skype or telephone. And while the First Department has indefinitely adjourned most of its deadlines, appeals scheduled to be heard in the May and June terms will be decided on submission—and counsel can request oral argument by Skype by e-mailing a letter to the court.
Further, both the S.D.N.Y. and E.D.N.Y. have issued orders limiting who may enter the courthouses, and many federal judges have adjourned appearances to dates in April and May. But the federal courts remain open and continue to operate.
Agree to Reasonable Adjournments, But Keep Deadlines on a Short Leash
Whether a case is adjourned by the court or at the request of an adversary, we all have to accept that it’s far from business as usual, and we can’t operate—or expect others to operate—as if everything is normal. Indeed, opposing reasonable adjournment requests due to the coronavirus crisis will not win you any points with the court, and insisting on conducting in-person depositions and conferences is unlikely to be successful—and, in many instances—unsafe.
But there is nothing wrong with telling an adversary that you agree to an adjournment, but want a set date for whatever is being adjourned—rather than an indefinite adjournment. This ensures whatever event you have coming up stays on the calendar and in everyone’s mind, and will go forward on a set date in the future unless everyone agrees otherwise.
Propose Doing Depositions and Court Conferences by Video
Many lawyers are uncomfortable with making court appearances or holding depositions by video. But advancements in technology even over the last few years have made video depositions and appearances much easier and more effective. Many simple, free programs—like Skype and Zoom—provide good-quality audio and visual, and allow you to share your screen to display documents. And for a cost, there are plenty of companies and software platforms that can provide you with document-sharing, transcription, and recording services.
Further, if you don’t have fancy video-conferencing technology, no need to worry. You can use a laptop or tablet, or even a phone, for virtually all of this. And if you don’t want to be bothered with equipment at all, some companies (Esquire is one that has offices around the country) let you do the conference at their office in a private room using their equipment—so all you or your witness has to do is show up.
While many attorneys prefer to be in the same room with the witness or judge, using video-conferencing technology—when properly set up and used (and assuming a strong Internet connection)—can be just as effective. Indeed, I have taken many depositions of out-of-state witnesses by Skype, and while there is a benefit to being in the room with the witness, that benefit is often substantially outweighed by the cost of attorney travel. So for the doubters, now is a good time to try out a Skype deposition or conference, since many clients may insist on it in the future to cut down on costs even under normal circumstances.
Push Back on Attorneys and Litigants Who Seek Delay for Strategic Gain
As explained above, some delay caused by court and office closures and social-distancing protocols will be inevitable. But don’t let unscrupulous attorneys and litigants overplay the “delay” card.
Indeed, some parties that favor the status quo or have no incentive to see their case move (this generally applies more to defendants, though some plaintiffs can be in this group too) may just refuse to go forward or cite the coronavirus crisis as a reason for a complete standstill on a case. And given that courts are operating at extremely limited capacity and that many judges and law clerks cannot be reached in chambers, a party seeking to benefit strategically from delay may assume that even an unreasonable adjournment request or refusal to go forward will go unchallenged.
Don’t accept this. Make a record showing that you will agree to reasonable adjournments and requests to reschedule, but ask for specific reasons why specific events can’t go forward. If the reason is that a witness is sick or quarantined, or that documents can’t be physically gathered from a client’s office because the office is closed, then you should agree to reasonable extensions. But if opposing counsel refuses to explain why a basic deposition can’t be done by Skype or why a motion must be adjourned indefinitely, then put your foot down.
And don’t be afraid to go to the court if opposing counsel won’t budge. Courts will be sympathetic to legitimate problems and reasonable adjournment requests arising from the coronavirus crisis, but most courts will not appreciate attempts to cause delay for no legitimate reason. Indeed, U.S. District Judge Cote recently agreed to convert a hearing in a case brought against convicted felon Martin Shkreli by the state attorney general and Federal Trade Commission to a phone conference, but denied Shkreli’s request to adjourn the hearing altogether merely because of the “lingering uncertainty” the coronavirus outbreak has caused.
Further, even though most judges and law clerks are not working in chambers, most are still working remotely. If the law clerk on the case has given you his or her e-mail address, then reach out and ask to set up a call. (Indeed, some judges are publishing temporary part rules addressing how to raise disputes with a court staff working remotely.) And if that doesn’t work, follow the judge’s rules concerning raising discovery or other disputes and make a submission by electronic filing on the docket—proposing a call or Skype conference. As long as the judge and his or her clerks continue to work on their cases remotely, they should see your filing and be able to address it. And at the very least, you will have made a record of your adversary’s delay tactics and can use it to oppose further delays when things get back to normal.
Don’t Let the Perfect Be the Enemy of the Good
As lawyers, we’re taught to identify problems and try to fix them. And many of us (myself included) went through every step of our education and professional lives with Type-A personalities, trying to make everything we do perfect. But as even a cursory glance of the newspaper shows, our world is far from perfect now, and we could be battling the coronavirus pandemic for months, if not over a year, to come.
So we owe it to our clients—at least the ones who want to see their cases move—to make the best of this bad situation. And when the coronavirus outbreak is under control and the world resumes a sense of normalcy, those who see the current challenges as opportunities will be far ahead of those who sat on the sideline complaining the world wasn’t perfect.
Joshua Wurtzel is an attorney at Schlam Stone & Dolan.