The COVID-19 pandemic has changed everyone’s lives in 2020, and the practice of law in New York State is no different. The pandemic forced the world to look at how it was conducting business, and adjust to the changing times to protect the people who utilize and work in the system. We have now entered a new digital age of practicing law where technology and conducting business virtually has been universally implemented and adopted. The government, prosecutor’s offices, law firms, solo practitioners, and the court system have all implemented new protocols and procedures, and a significant part of this new normal is the shift to the virtual practice of law. While this shift was caused by the pandemic, many of the new protocols and procedures surrounding the virtual practice of law will continue in the future due to the benefits they offer. As we enter the sixth month of this new digital age of practicing law, we are starting to see the benefits and the pitfalls of this new normal.
During the height of the pandemic, virtual meetings and court conferences were necessary. The pandemic closed law offices and government offices, preventing in person meetings and shut down the courts. Had the practice of law not shifted to a virtual format, litigants would have been prejudiced by their rights not being protected and their issues not being addressed. Furthermore, the backlog of cases in the court system would have grown exponentially, and attorneys and law firms would not have been able to survive financially. Shifting to a virtual practice of law was the only way to keep our justice system running. The manner in which attorneys and the legal system embraced the new technology have now provided tools to improve and move the legal system forward.
The use of technology and the shift to virtual practice has increased efficiency in the practice of law. Prior to the pandemic a court conference involved traveling to the courthouse, then waiting in the courthouse until your case was called by the Judge. A fifteen-minute court conference could take hours out of an attorney’s day with travel and wait time at the courthouse. On occasion a Judge’s calendar would be so busy that a court conference that was scheduled in the morning would not be heard until the afternoon. The shift to virtual court conferences has changed this. New York State courts have been utilizing Skype for Business and are soon switching to Microsoft Teams to conduct virtual court conferences. The Court sends a meeting invite via electronic mail with a link to enter the virtual court conference. At the scheduled time the attorneys, and the parties if required, log into the meeting, and almost instantly the court conference begins. In the months since virtual court conferences began, the Judges have done well in spacing the conferences they hold each day resulting in the conferences starting on time, or with very little delay. This has eliminated the need to travel to the courthouse for most court appearances, and has all but eliminated the wait at the courthouse that attorneys and litigants used to experience from in person conferences. Now a conference which would have taken hours is completed in less than an hour. Attorneys are now able to use this saved time to work on other matters. This also saves litigants a significant amount in legal fees, especially in the areas of law like matrimonial and family law where clients and attorneys are required to appear in person and clients are billed by their attorney based upon the time spent on their case.
An attorney can now schedule multiple virtual meetings and court conferences in a day, which previously would have been impossible due to the uncertainty of how long an in-person court conference would have taken between travel, wait time and the conference itself. Also, virtual meetings or court conferences can be conducted from anywhere so long as one has an appropriate device and access to the internet to log on. An attorney does not need to be in an office to conduct these meetings and court conferences. One can utilized most computers and smart devices to participate in these virtual meetings and court conferences. In recent months Judges set court conferences on my cases for times when I was scheduled to be away on vacation with my family. In the past I would have written the court to advise of my previously scheduled vacation, requesting an adjournment to a date when I was available to appear in person. Since these were virtual conferences, I was able to conduct these conferences while on my vacation, and it eliminated the need to request an adjournment. This reduced delays in these cases, permitted issues to be addressed by the court, and resolved matters that would have otherwise remained stagnant. Virtual court conferences also allow for litigants to log on and appear from their offices or places of employment during a scheduled break in their work schedule.
With the Courts becoming more accepting of virtual appearances it remains to be seen whether virtual testimony by witnesses at hearings and trials will become more acceptable as well. Prior to the pandemic it was rare that a Court in New York would permit a witness in a case to testify virtually. This was especially true for expert witnesses. This at times resulted in witnesses becoming unavailable to testify, or very difficult to schedule. Virtual testimony by witnesses could eliminate many of these issues.
While increasing efficiency, saving attorneys time and saving litigants on legal fees, virtual court conferences have also proven to be effective overall. For routine court conferences we have found that conducting them virtually is just as productive as conducting them in person. This is not necessarily true for every type of court appearance, but for most appearance we have seen that there is very little, if any, difference in the effectiveness of in person and virtual court conferences. There is very little that occurs in these routine court conferences that cannot be easily and effectively done in virtual conferences. Virtual conferences permit the parties to appear, engage in oral arguments and settlement discussions, share records, and to give the Court a status update. A virtual conference eliminates the need to drag large files back and forth from one’s office to the courthouse. While there have been technical difficulties at times with virtual court conferences, there continues to be progress on these issues and the benefits have outweighed these technical issues.
The digital age of the practice of law has also led to increased convenience, and flexibility for the courts, attorneys and litigants. Virtual meetings and court conferences permit a quick face to face meeting that can be set up and completed in a very short period of time from almost anywhere. This allows for face to face meetings to be scheduled with a client very quickly to address an important issue, which in the past may have had to wait until the client could physically meet with the attorney. This results in the client’s problem being addressed quicker, which can be very important if there are time sensitives issues involved.
Another change that occurred during the pandemic was the expansion of the New York State Court’s E-filing system, or NYSCEF. Prior to the pandemic is was not mandatory to utilize NYCEF to commence cases, or file documents on pending cases. An attorney who did not wish to utilize the NYCEF system could opt out. The pandemic and the shutdown of the courthouses changed this. Currently matrimonial actions must be filed through the NYCEF system in most cases. Cases that had been pending prior to the pandemic had to be converted to an e-file case through the filing of a Consent to E-filing Stipulation. An attorney on a matrimonial case could no longer opt out of electronic filing (e-filing) through NYCEF. The Family Courts in New York also began utilizing electronic filing through a number of means, including designated electronic mail addresses and more recently through the New York State Electronic Document Delivery System (EDDS).
E-filing has many benefits. E-filing eliminates the need for an attorney or their staff to travel to the courthouse to file documents in person. This is a huge time savings especially for firms outside of New York City who used to have to deal with New York City traffic, as well as tolls and parking costs to file records with the Courts in person, or pay a service to file the documents for the attorney. E-filing also permits records and correspondence to be filed with the Court instantaneously, facilitates service of documents on your opposition, and allows new actions to be commenced much quicker. It also eliminates the issue of records getting lost in the mail, on a fax machine, in someone’s e-mail junk or spam folder, or in a pile in someone’s office. The NYCEF system organizes the documents filed on a particular matter which permits one to easily review and locate particular documents later in the litigation, and when documents are uploaded a notification is sent to all attorneys on the case. E-filing also reduces the need and costs of copying and printing as a document uploaded to the NYCEF system is filed and served simultaneously, however one must still pay attention to the Part Rules of their particular Judge or Court as many still require hardcopies, or working copies, to be submitted. Due to its benefits, including convenience and efficiency, electronic filing will continue to be utilized and mandated by the court system moving forward.
While there are numerous benefits to the digital age of the practice of law, there have also been some downsides to this shift as well. Virtual court conferences have eliminated the benefits of being in person at the courthouse, especially in the practice of matrimonial and family law. Attorneys regularly found ways to be productive during those times when they were waiting to be called in to their court conference. Since in matrimonial and family law the parties are required to appear with the attorneys for most court conferences, the time spent at the courthouse prior to, or even after, the conference with the Judge was often used as a settlement meeting. The attorneys would discuss the relevant issues of the case. The parties were available for the attorneys to consult with on these issues, and to even bring the parties into a room to discuss the case together. These negotiations at the courthouse were often helpful to resolve issues. Judges would also use this opportunity to settle issues. Often Judges would discuss and give input on the relevant issues during the conference, then second call the case to permit the attorneys and parties time to attempt to resolve those issues taking into account what was discussed during the conference. These settlement meetings at the courthouse were very effective, but are either not possible or very difficult to replicate in a virtual format. For this reason, while I believe that virtual court conferences will continue to be used regularly, as we move past this pandemic and it becomes safer to have more people together at the courthouse, I anticipate that certain conferences, such as settlement conferences, will likely return to being conducted in person.
As with settlement conferences, trials and hearings are also much easier to conduct in person, rather than virtually. The difficulties of questioning a witness virtually, marking and introducing evidence, and technology problems that could affect the record are all issues that increase the stresses and difficulties of a hearing or trial. During the shutdown due to the pandemic most hearings and trials were delayed. I was involved in a trial on custody related issues that was interrupted and delayed due to COVID-19 and only recently resumed in August. As the courts have reopened virtual hearings and trials have been conducted, but I have seen that the preference of attorneys and the courts continues to be to conduct these in person. In anticipate that as we continue to move past this pandemic and reopen the legal system, trials and hearings will continue to be conducted in person in most cases.
The pandemic has also reduced or eliminated networking events, and other interactions of those within the legal system. At the courthouse attorneys would run into one another, and catch up. Often these interactions would lead to referrals of new cases. In January 2020 I saw a criminal defense attorney I had not seen in some time at the courthouse, who I had many cases with when I worked in the District Attorney’s Office. During these brief interactions we discuss how things were for us both personally and with work, and about a week later that attorneys referred me a case as I had reminded him that I handled family law matters during the conversation. Attorneys would also see their adversaries on other matters more often and take the opportunity to discuss their pending matters. The interactions with court staff and personnel, such as clerks, court officers, and law secretaries, has also been reduced. For an attorney these relationships are so important and are important to maintain. Finally, networking events such as Continuing Legal Education events and events held by various bar associations have been eliminated since the pandemic started in March 2020. While many have been held virtually, these virtual events cannot replicate value and benefits of in person events.
Finally, while technology does have its benefits, there are also the nagging issues that come with it. Technical difficulties do occur such as the occasional issues with logging into virtual court conferences, or when the audio or video doesn’t work. The Courts are continuing to monitor and endeavor to correct and prevent these problems. By and large they have been successful. Furthermore, while most have the devices and technology necessary to participate in these virtual meetings or conferences, there are those less fortunate who cannot afford the technology nor are not technologically savy enough to know how to do what is needed to participate in virtual meetings or court conferences.
As we move forward the virtual practice of law will continue based upon its clear benefits. However, as society and the medical profession continues to tackle COVID-19 and the threat of this virus dissipates in the future with the introduction of medications and vaccines, the legal profession will likely shift to a hybrid model where virtual practice remains, but the in person meetings, events, court proceedings will return due to their clear benefits. For now, to keep people safe, to prevent future spikes of the virus, and to allow the experts the opportunity, the legal system will continue to operate mostly in a virtual capacity, and will continue to adapt to this new normal.