New York State Bar Association Advocates for Post-Pandemic Changes to the State Court System

New York State Bar Association Advocates for Post-Pandemic Changes to the State Court System

11.5.2022

By Jennifer Andrus

To make sure that New York’s most vulnerable residents don’t get left behind when it comes to access to justice, the New York State Bar Association is recommending that the bench and bar appoint a task force to decide which court proceedings should be held virtually, how all clients can access technology and how e-filing can be expanded to pro se litigants.

The House of Delegates, the association’s governing body, voted Saturday to recommend a joint task force to discuss issues faced by New Yorkers who had the most difficulty interacting with the court system when courthouses were shuttered during the COVID crisis.

“This report details how many New Yorkers struggled to participate in court proceedings during the pandemic,” said New York State Bar Association President Sherry Levin Wallach. “As lawyers, we have a duty to ensure that everyone is treated equally under the law and is afforded access to justice. The decisions we make about the court system as it comes out of the pandemic will be crucial.”

The report also recommended increasing pay for assigned counsel, which has not been raised in 18 years outside of New York City. The pay rate – $60 per hour for a misdemeanor and $75 per hour for a felony – is not enough to adequately compensate attorneys for their work. The New York State Bar Association has long argued that a higher hourly rate will not only attract much-needed lawyers but will also retain attorneys who are already accepting court-appointed work in the Family and Criminal courts. In June of 2018, the association approved a report recommending a pay increase.

The biggest hurdle to accessing the justice system when all proceedings were moved into the virtual space was felt by clients who were at a technological disadvantage due to a lack of online access and/or digital literacy.

“Lack of access to technology, computers, digital devices, remote access, smartphones, technological illiteracy, lack of privacy, connectivity and adequate broadband service was a consistent theme throughout,” the report states.

In rural counties, some clients had limited data to interact with remote courts and other clients did not own smartphones or know how to use them. In urban areas, many clients didn’t have a place to hold a private meeting or WIFI to do so.

“The responsibility should not be solely on a client and their attorney to overcome obstacles to accessing technology,” the report argues.

The report also outlined the need for the state court system to create a more user-friendly website to help people who represent themselves fill out and file court documents correctly.

Other recommendations for closing the digital divide include:

• Providing litigants with a choice of in-person or virtual court appearances
• Supplying computers through partnerships with government agencies, public libraries, and shelters
• Collaborating with community organizations to establish a lending library for computers or tablets

Language Barrier

The report, which was written following a year-long study of impediments to access to justice, also determined that interpreters are needed at all stages of litigation from “court websites explaining how to file to initial meetings with assigned counsel and at hearings and trials before a judge.”

Simultaneous interpretation for all cases should be the gold standard for those litigants with limited English skills, the report recommends. More than two million New Yorkers are not fluent in English, while another three million do not speak English as their primary language, according to the report. Overall, the state’s residents speak more than 150 languages.

As an example, the report cited the case of a client who didn’t show up to a Department of Labor hearing because he didn’t know he was supposed to appear virtually. The client could not read the English documents and showed up to the Department of Labor offices, which were closed during the pandemic. He not only missed the hearing but also his opportunity to appeal.

“In gathering testimony and developing this report, we hope that we can learn from the collective experience of the legal services community,” the report concludes. “In that way the entire state is better prepared for the next emergency and can avoid the needless suffering of our most vulnerable neighbors.”