Judges’ Take: Litigating in the Federal Courts During COVID-19

By Brandon Vogel

Courtroom

The future of courtrooms is plexiglass. Lots of plexiglass.

With the COVID-19 pandemic, it will not be business as usual when the courts reopen in stages. Lawyers and the public can expect to see smaller courtrooms for civil cases that have been largely resolved during the pandemic, while bigger courtrooms will be for the criminal justice system that has struggled.

The chief judges in each of New York’s districts recently discussed their challenges and triumphs during this unprecedented time on the recent Virtual Town Hall, “Litigating in the Federal Courts during COVID-19.” The Commercial and Federal Litigation Section sponsored the free event attended by more than 200 members.

A new normal

Moderator Mark A. Berman (Ganfer Shore Leeds & Zauderer) asked each judge when oral arguments would return to court.

I think it depends largely on the members of the bar, said Hon. Colleen McMahon, Chief Judge, SDNY, who does not see an end to remote civil proceedings “anytime soon.” McMahon noted that the SDNY website contains updated protocols for Phase I, II and III. Phase I is a “very soft opening,” with just staff to acclimate to their new quarters, as well as becoming accustomed to masks. “We hope that Phase II will begin in early July,” said McMahon. Phase II is when the courthouse opens to the public, with enhanced screening protocols and kiosks in place before arrivals. Attendees will need to have a temperature under 100.4 and answer questions about any experienced symptoms.

Hon. Roslyn R. Mauskopf, Chief Judge, EDNY, said the district is on the same path as the Southern District. She sees very straightforward and simple in-person proceedings returning by the middle to the end of July. They do not foresee trials until after Labor Day. “Many of my colleagues believe even that is a bit ambitious,” she said.

“When I look at the calendars every day, it doesn’t seem that we have missed much of a beat at all in terms of civil cases,” Mauskopf said.

The magistrate judges handle the large part of pre-trial matters in civil cases. Their calendars are “chock full. It is working remarkably well,” she said.

Mauskpof acknowledged that the district is struggling with the criminal justice system. It is very difficult to communicate with incarcerated defendants; lawyers are having difficulties meeting with their clients in preparation for the very limited number of telephone and video proceedings.

McMahon noted that when the district is able to reopen, the largest courtrooms have been reserved for criminal trials with up to 16 jurors, but not all in the traditional jury box. Smaller courtrooms will be for civil trials of up to 8 jurors. Witnesses will not be masked due to constraints but instead be behind plexiglass. Floors and elevators will be clearly marked with stickers and labels.

“We have it so everyone feels safe,” said McMahon, who consulted experts and involved parties on how to reopen. “I think we have done a pretty good job. It requires an awful lot of forethought, and, might I add, an awful lot of money.”

Glenn T. Suddaby, Chief Judge, NDNY, said that his court’s numbers are up 17% for closed cases from a year ago. Filings in civil cases are up, which is “just unbelievable to me.”

He agreed with Judge Mauskopf that the district is struggling with the criminal system. “We are down almost 77%,” said Suddaby. His court is in Phase II and has starting handling criminal court appearances bu “taking pleas.” He said few defendants are being sentenced until the Bureau Prisons open up because “it makes very little sense.”

Each courthouse is restricted to one courtroom with designated time slots for proceedings to ensure cleaning between hearings, Suddaby said. Everyone must wear a mask; elevators have passenger limits; people must socially distance when inside.

“We have had great compliance and there haven’t been any issues,” said Suddaby.

Phase II starts July 13 for his court. The district hopes to have a civil jury trial in early to mid-September.

Hon. Frank P. Geraci, Jr., Chief Judge, WDNY, has implemented similar measures to the NDNY. His court never closed, so it’s now reopening to on-site operations. The district used Dropbox for file sharing and had a “skeleton crew” in the clerks’ office. “We really didn’t miss a beat.”

All of the judges encouraged attendees to visit their courts’ websites for the most up-to-date and written protocols.

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