On Monday, May 11, 2020, three Commercial Division justices from across the state participated in a virtual panel to discuss the state of litigating in the Commercial Division during COVID-19. Justices Saliann Scarpulla (New York County), Timothy Driscoll (Nassau County), and Deborah Karalunas (Onondaga County) discussed the ways in which litigation can move forward while the courts operate in a virtual format. The panel was presented by the New York State Bar Association’s Commercial and Federal Litigation Section.
The key theme throughout the panel was that courts would not be returning to normal in-person operations soon, so attorneys should strive to move cases forward in the new virtual format. While the justices are eager to return to chambers, all three acknowledged that it would not happen in the foreseeable future and virtual operations will likely be in place for New York courts for many months, at least in counties hit hardest by COVID-19.
Availability of Hearings
The first topic directed to the panel was the availability of hearings. All three justices agreed that virtual hearings would eventually be possible. At this time, the primary obstacle is the availability of court reporters. Criminal and emergency matters have priority for court reporter assignment, thus leaving little availability for commercial matters. Justice Karalunas noted that virtual hearings are already being heavily used in family court, and all three justices expected virtual proceedings to expand into the Commercial Division in coming months. With respect to oral argument, Justice Driscoll stated that he recently held oral argument on a motion and it went smoothly, and Justices Scarpulla and Karalunas added that they would be eager to hear argument virtually, as well.
Conferences
The panel next discussed the logistics of court conferences. Justice Scarpulla noted that many lawyers are reluctant to move forward with video conference from their homes, which she understood. She has relied primarily on phone conferences to keep cases moving. Justice Karalunas echoed the preference for phone conferences, but noted that she requires video conference when more than 5 attorneys will be present to avoid confusion over which party is speaking.
The three justices emphasized the importance of punctuality for virtual conferences and other proceedings. Justice Karalunas noted that late arrival by one party’s counsel before the other party’s counsel arrives creates a problematic ex parte situation for the court. Justice Driscoll added that one benefit of virtual conferencing is the elimination of the “cattle call,” and may allow counsel to appear more efficiently in different courts on the same day. The trade-off for conference scheduled for a matter within a specific time period underscores the need for punctuality. Justice Driscoll also noted that, while he prefers that counsel appear in business attire, the more important thing is to show up on time and prepared.
E-Filing
The panel then turned to the logistics of e-filing. The three justices expressed gratitude that e-filing has been recently expanded to allow filing of most papers electronically. The panel deferred on questions about the timing and logistics of e-filing availability to the Chief Judge, but noted that the e-filing system was not designed to be operated entirely remotely, so it took some time to build a system that did not require on-site staffing. Justice Scarpulla added that the justices do not currently receive a notification when a motion is fully submitted but they do receive notice when a letter is filed, so she recommended writing a short letter to the Court noting that a motion is fully submitted to alert the court that the motion is ripe for consideration. The justices encouraged counsel to communicate with the court to clarify any questions about the submission of specific papers.
Trial
Trial was the next topic. The justices expressed eagerness to hold non-jury trials virtually. Justice Driscoll urged parties to considering holding trial virtually “by any means possible,” and all three justices noted that it would likely be several months before jury trials resumed.
Justice Scarpulla added that counsel seeking prompt resolution of cases should consider skipping summary judgment and proceeding directly to a non-jury trial. She noted that the time required for considering a summary judgment motion was similar to a non-jury trial, and it is therefore a much more efficient use of attorneys’ and the court’s time to proceed directly to a trial. Justices Driscoll and Karalunas enthusiastically echoed that advice. The justices noted that case-dispositive summary judgment is rarely granted.
Settlement and Mediation
The panel next turned to the question of how COVID-19 was impacting settlement and mediation. The justices agreed that all forms of ADR were increasing and would continue to increase. Justice Scarpulla reiterated that there was “zero chance of a jury trial” for the next several months, at least in New York County, and that she was strongly urging parties to consider mediation or non-jury trials for the foreseeable future.
Justice Driscoll added that parties should not overlook the role of the judge in helping settle cases. He acknowledged that some judges are reluctant to facilitate settlement in cases in which they would be the finders of fact, but that he was comfortable doing so. The three justices agreed that parties should strive to work toward settlement despite COVID-19.
Emergency/Essential Matters
The panel was asked whether any Commercial Division cases had qualified as emergency or essential matters. None of the justices had received any such matters, and Justice Driscoll noted that very few Commercial Division cases involve true emergencies even in the normal course. Justice Scarpulla added that treating commercial cases as emergency or essential matters would take court reporters away from criminal and family courts, where they are currently in short supply. For existing matters with emergencies situations, parties should contact the part handling the matter directly.
Concluding Remarks
The panel closed with the justices again urging the bar to continue moving cases forward by whatever means possible. The three justices reiterated that some variation of the current virtual format for court operations would continue for the foreseeable future—at least in certain counties—but that no details about the specific details are “set in stone.” Given this reality, counsel were urged to remain adaptable and patient in finding ways to continue moving matters forward using virtual tools. To that end, all three justices encouraged counsel to reach out to the court to propose ways to move cases forward or to request tools to allow for efficient resolution.
