Court System Issues New Virtual Bench Trial Protocols, Addresses Budget

By Christian Nolan

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Good afternoon Members,

During her weekly coronavirus update yesterday, Chief Judge Janet DiFiore announced that the New York State Unified Court System has publicly released the new “Virtual Bench Trial Protocols and Procedures.”

DiFiore said the protocols are “simple practical guidelines that can be readily modified and tailored for use in different courts and case types, and that will assist judges and lawyers all across the state in conducting fair, efficient and effective virtual bench trials and evidentiary hearings.”

For instance, the new protocols and procedures inform participants of what to expect during a virtual bench trial and address key issues such as proper decorum; safeguarding the integrity of the proceedings; handling and presenting testimonial, documentary and physical evidence; and conducting sidebars.

Also included is a separate section on virtual criminal bench trial considerations and a helpful “proposed stipulation and order” that allows the parties to agree on how the different aspects of the trial will be handled.

“…[W]e encourage judges, lawyers and bar associations to distribute and implement them as widely as possible,” said DiFiore. “All in all, a valuable tool that will be of enormous benefit to the bench and bar as we move forward into what will be our new and ‘better normal,’ highlighted by a well-functioning virtual court system.”

DiFiore said Nassau County Administrative Judge Norman St. George was asked last month to identify the best practices from the judicial districts across the state and integrate them into a statewide manual to guide the bench and bar in conducting virtual bench trials and hearings during the pandemic and beyond. She said he consulted with his judicial colleagues, bar associations, district attorneys and public defenders.

‘Grim Numbers’
DiFiore said Chief Administrative Judge Lawrence Marks testified at a joint legislative public hearing last week in support of the judiciary’s budget request for the fiscal year beginning April 1. It maintains the same spending level as the current budget, which was reduced by $291 million dollars or 10% during the year.

She said Marks made clear it is “a very austere budget, reflecting our obligation to share in the sacrifices being made by the rest of the state at this difficult time, but one that will enable us to keep our courts open to provide access to justice and carry out our constitutional mission.” She said every judge, every court professional, and every lawyer and litigant will be impacted by the cost-savings measures.

Marks, in his testimony, said the strict hiring freeze means that 730 nonjudicial positions were lost to attrition since March, a number that is expected to reach 1,000 by June. Calling the nonjudicial workforce “the lifeblood of our court system,” DiFiore noted that the courts are now operating with 2,200, or 13% fewer employees, than the peak staffing level of the past.

“These are grim numbers that underscore why we’ve made every possible responsible effort to avoid nonjudicial layoffs as we’ve gone about implementing the reductions to our budget,” said DiFiore. “And given our depleted staffing levels, any further budget reductions, which would almost certainly require layoffs, would have a crippling effect on court operations, and especially so in the high-volume housing, family and criminal courts, the courts in which we serve so many low-income and self-represented litigants who rely heavily on our front-line court staff for essential services and for the assistance they need in navigating the court process.”

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