Future of Trials in NY Examined in Two New Reports

By Christian Nolan

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Good afternoon Members,

The Commission to Reimagine the Future of New York’s Courts released two new reports today – one focused on the ways in which emerging technologies may be applied to improve trial practice in New York amid the pandemic and beyond, and the other providing a roadmap for developing procedures to ensure that evidentiary proceedings are conducted safely, effectively and fairly throughout the public health crisis and into the future.

The commission was appointed last year by Chief Judge Janet DiFiore to study regulatory, technological, structural and other innovations and propose practical short- and long-range reforms. The commission is led by former New York State Bar Association President Henry M. Greenberg.

Both reports were produced by the commission’s Trials Working Group, which is co-chaired by Court of Appeals Judge Michael J. Garcia, and Robert J. Giuffra, Jr., vice chair of Sullivan & Cromwell, and by the Future Trials Subgroup led by Richard A. Edlin, vice chair of Greenberg Traurig.

The commission’s “Report and Recommendations of the Future Trials Working Group” provides a series of principles to help in evaluating emerging technologies based on their potential to advance access, equal justice and efficiency, according to DiFiore, who devoted the majority of her weekly coronavirus update today to the new reports.

The report also explores aspects of trial practice likely to be impacted by evolving technology, such as transcription services, presentation of evidence and judicial decision-making. The report examines trial by remote videoconference, including an overview of pre-pandemic case law concerning the constitutionality of remote testimony in civil and criminal trials, as well as a discussion of the few remote jury trials conducted around the country over the past year. The report also underscores the need for increased training for judges and court staff related to technological issues.

Recommendations for how the court system can improve litigation through evolving technology include:

  • Exploring potential partnerships with major internet service providers to supply all courtrooms with secure and reliable highspeed wireless internet.
  • Developing uniform rules governing the use of portable technology by the parties during trials and proceedings.
  • Implementing the court system’s new “Virtual Bench Trial Protocols and Procedures” manual and developing a similar manual for remote jury trials so courts can pilot such trials on a voluntary basis.
  • Training judges and court staff on emerging technology developments, and legal issues posed by new forms of evidence.

The second report issued by the Trials Working Group “Improving and Streamlining the Presentation of Evidence: Court Hearings” draws on the nationwide experience of courts and lawyers during the pandemic to provide an overview of the legal authority governing different types of remote evidentiary proceedings, and offers an extensive best practices checklist for how to safely conduct remote, in-person and hybrid trials and evidentiary hearings during the pandemic.

“The quality and productivity of the commission’s work product has exceeded our highest expectations,” DiFiore said during her weekly address today. “This is an extraordinary group of leading judges, lawyers, academics and technology experts, and they have already issued nine separate reports since last June. Each report that the commission has released is a model of insightful analysis, accompanied by detailed recommendations that have helped our court system successfully navigate the complex challenges presented by the pandemic, and positioned us to meet the evolving justice needs of New Yorkers well into the future.”

In-Person & Virtual Trials

During her update today, DiFiore said there are 52 in-person jury trials scheduled to begin statewide this week.

“While we are pleased to be scheduling jury trials in our courthouses once again, I do want to assure everyone that we are keeping an eye on the COVID metrics across the state and taking a careful and deliberate approach to the expansion of jury trials and other in-person proceedings,” said DiFiore. “We will move forward at a safe and appropriate pace, a pace that balances our operational needs with our responsibility to maintain a safe and healthy environment for our judges and staff and all of our court users.”

Meanwhile, last week statewide there were 960 virtual bench trials and hearings, judges and staff remotely conferenced nearly 20,000 matters, settled or disposed of over 4,700 of those matters, and issued over 2,100 written decisions on motions and other undecided matters.

COVID-19 Webinars

Thursday, April 8 – When Life Hands You Lemons: An Attorney’s Journey Through Quarantine as an at Home Chef (Book Club).

Wednesday, April 14 – Technology and Ethics: What Every Lawyer Should Know.

Monday, April 19 – Making an Initial Appearance in a NY Criminal Case: Remote and In-Person.

Friday, April 23 – Clinical, Legal, Ethical Considerations in Deliberative Democracy in a Pandemic.

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In an upcoming NYSBA webinar on Thursday, April 8, Rep. Stacey Plaskett, a leading prosecutor in the impeachment trial of former President Donald Trump, will provide exclusive behind-the-scenes details of how she and fellow House managers made their case before the U.S. Senate and a worldwide TV audience.

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