Since March of 2020, Covid 19 has been a fact of life for everyone. Sickness, death, economic ruin, and interruptions of all stages of education made the first year of living with Covid one of the blackest in recent American history. And then, we began to adapt to working in new ways that kept us, and those we worked with, safe. Many were able to work remotely, from home. Students at all levels took classes using Zoom. Physicians began to conduct tele-health sessions, over Zoom or the equivalent, in order to see their patients for routine issues.
And lawyers and judges in the civil justice system found that many of the routine conferences that used to require travel, followed usually by long waits in courtrooms waiting for the other parties to show up, and for the case to be called, could take place more efficiently over Microsoft Teams — a Zoom equivalent preferred by New York’s courts.
COVID Crushes Civil Jury Trials Completely
But civil jury trials stopped completely when Covid first hit, and they have never restarted to any realistic degree. Some of this was understandable. Before Covid, there would be many prospective jurors — often, at least 100 — seated in a large room in a courthouse, waiting for their turn to be interviewed by the lawyers who needed to pick juries for their trials. Once they were funneled out of that large group, they were placed in the jury box in the courtroom where the trial would be taking place, to be questioned by the lawyers.
This process involved sitting next to the other jurors, sometimes for extensive periods of time. Clearly, this process was not sustainable in the face of Covid. It had to change, and it did. Now there are many fewer prospective jurors in the central jury room, and everyone is masked. Once the prospective jurors are moved to an individual trial courtroom, they are spread out all over it, and not crowded into the jury box. They sit, properly spaced, on the benches and seats that were once occupied by lawyers, litigants and their family members, of the case on trial, and other cases. And because of the need for this extra real estate, combined with the practice of keeping the number of trials happening at any one time in any one courthouse to a minimum, there have been very few jury trials in New York.
Very Few Civil Jury Trials Now Taking Place
What is very few? Based on anecdotal evidence shared by fellow members of the plaintiff’s bar, there were 17 jury trials in the Bronx in 2021, whereas pre-Covid, in 2019, there were 750 per year. And while the Bronx has historically been a venue that makes plaintiffs and their lawyers wait a long time to get in front of a jury, it is now taking approximately 5 – 6 years after the filing of the Note of Issue, which signals the completion of the discovery process. And getting to the Note of Issue itself can easily take 1 year at present.
Present Situation is Not Sustainable
This is not sustainable, for many reasons. The most important is one you’ve probably heard before. Justice delayed is justice denied. As time passes, the memories of witnesses dim. Witnesses move away, grow old, and die. This applies to fact witnesses as well as expert witnesses. Evidence becomes lost or destroyed. The plaintiffs themselves grow older, and some will die before they can make use of the compensation for which they began a lawsuit in the first place.
Plaintiff’s Lawyers Facing Unprecedented Reduction in Income
But our clients are not the only ones hurt by the virtual stoppage of jury trials. We plaintiff’s lawyers are facing an unprecedented reduction in income. We work on a contingency-fee basis, meaning we do not get paid anything for representing a client, until and unless we go to trial and win the case, or we resolve it out of court through a settlement. And the reality is, without the threat of a jury trial hanging over their heads, our colleagues on the defense side, and the insurance companies who pay their salaries, have no incentive to settle cases, and for the most part, they are not doing it.
Of course, there are ways to resolve cases without jury trials, if both sides are willing to use them. The parties to a lawsuit could agree to have a bench trial, in which the judge acts as both judge and jury. They could also agree to use a mediator, usually an experienced attorney or former judge, who examines all the evidence, can question witnesses and the parties, and talk to the attorneys on each side in an effort to create a resolution of the case that everyone can live with. But this is not happening enough. And unfortunately, this leaves plaintiffs, and their lawyers, with nothing but a hope that things will get back to normal once we have Covid under control.
Who knows when that will be? What variant will come after Delta and Omicron, to throw another wrench into the machinery? The time has come to accept that being vigilant about infectious diseases like Covid will be part of our lives for a long time, and maybe forever. That is why the current means of dealing with it in the New York courts has become obsolete. We need to adapt to the challenges presented by Covid, and we need to do it immediately.
I understand that many of my colleagues, on both the plaintiff’s and the defense side, feel that access to a jury is valuable and sacrosanct, and would not want to do without it. And you can count me in among those who feel that way. But at this point, doing without a jury may be the only way to move forward, to protect our clients, and to protect our livelihoods.
A Way Forward
My suggestion is this. If a case cannot be resolved through an out-of-court settlement within 6 months of the filing of the Note of Issue, the parties must either go to mediation that would be provided either by the court system, or by an outside provider, or they must agree to a trial without a jury. If litigants are unable to agree on a bench trial by the judge assigned to their case, or simply want the benefit of a broader perspective, they would have the option of using 3-judge panels to hear their case. If this sounds drastic, it is. But so is Covid’s deleterious effect on our civil justice system. And we cannot continue with the status quo a moment longer.
We’re here to listen.
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