Hybrid Models, Multiple Courtrooms, No Jury Rooms: The Future of Upstate Courts

By Brandon Vogel

COVID-19 and the Upstate Courts A Discussion with Judge Caruso_675

Safety above all.

This is how the court system has operated since March, albeit continuously.

“From the beginning of this crisis, we have not closed the courts. Justice has been delivered continuously throughout this process,” said Hon. Vito C. Caruso, Deputy Chief Administrative Judge (Outside NYC). He recently detailed the courts’ recent and future operations on the CLE Webinar, “COVID-19 And The Upstate Courts: A Discussion With Judge Caruso.”

Caruso was appointed to his current position on July 1, 2019. He said the last year has been challenging. “The job, as described to me, hasn’t occurred,” said Caruso. “Everything changed in March, but I am responsible for administering all 57 counties outside of the City. That includes Long Island, Buffalo and everything in between.”

There had previously been resistance from the bench and bar regarding technology, particularly with efiling, but that has subsided with the pandemic. With everyone forced to learn the new processes, it has worked, said Caruso.

Courts outside of New York City were the first to enter into phases, with the 5th 6th and 7th Judicial Districts starting first.  Caruso said that courts followed the governor’s lead. “We are not bound by the governor’s phases, but we felt that we should try to cooperate and to use that as our entrée into the different phases,” said Caruso

The entire state outside of the city is all in sync. “We are going to start a new Phase 4.1 together, which will expand Phase 4,” said Caruso. “That’s where we are at this time.”

The biggest change is that we are going to attempt to implement jury trials, both civil and criminal, said Caruso. The courts have set up a pilot project for Buffalo with four civil jury trials ready to start in September. He worked closely with Hon. Paula L. Feroleto, district administrative judge of the Eighth Judicial District. “Once word got out, other administrative judges wanted in,” said Caruso. He is currently reviewing proposals from other districts.

“This is a very dangerous step in some respects because we are so concerned about everyone’s well-being. The first concern is the safety of court users, court employees and the judges,” said Caruso.

Extra precautions will include using two courtrooms to conduct jury trials and eliminating jury deliberation rooms

“First, we have to make sure all of that is in place and working. All jury trials plans start with proper PPE, proper staging,” said Caruso. We have to be sure that it’s safe, but we are very optimistic that it will work.

The experience calling in grand jurors was “very positive,” with a few opt-outs. He hopes to have the same experience with civil and criminal jury trials. New juror questionnaires have been modified to reflect the COVID crisis.

“It’s not so much for themselves but for people around them,” said Caruso. “We are very cognizant of why someone might not want to come in here, be it a juror or one of our employees.”

Moderator Amanda Kuryluk (Maguire Cardona) asked Caruso if we will ever go back to in-person conferences?

“More likely, no” said Caruso. “Virtual appearances are with us for life. This is going to be a way of doing business.”

He said that, before the pandemic, attorneys would often complain about coming to the courthouse, having to find parking, and accounting for travel time that could otherwise be billed. Often, conferences take no more than 15-20 minutes, he said

“If they can accomplish just about the same thing virtually, why not do it,” said Caruso? We now are used to it.” He added that upstate courts do offer meeting rooms for virtual conferencing for lawyers who might need privacy that they cannot get at home, if working with a spouse or children.

Will we get back to in-person motions?

“That one we might. It is a 50-50. Many judges enjoy that as much as the lawyers,” said Caruso. “It is part of an attorney’s training to do that: to go in and appear, to gain confidence, to get scolded by the judge sometimes for not being properly prepared and learn. We would love to be able to do it, but it would have to be safe.”

Caruso said the courts are doing a mix of virtual and in-person alternative dispute resolution. He cautioned that video depositions are not as good as in person, because credibility can be harder to determine on video. “We are never going to completely go to virtual in cases where we can have it done presumptively in person. If it can be done, we are going to do it,” said Caruso.

“More than likely, once we see how our civil trials work, we will expand that. The judges prefer in-person, but we can do either way. We are going to be flexible about that,” said Caruso.

“You can’t be six feet away from your client and whisper in their ears.” He said the courts are moving towards Microsoft Teams for conversations between lawyers and clients.

“Everywhere you look, we have hybrids,” said Caruso. “That’s where we are in life.”

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