Judges Weigh in on New Civil Court Rules

Judges Weigh in on New Civil Court Rules

2.3.2021

By Brandon Vogel

When George J. Silver, the deputy chief administrative judge for the New York City courts, needed a new coffee table, he was sure of one thing. He didn’t want a plexiglass table after dealing with so much of it in the courtrooms this past year.

Bottom line: While he hopes he will never have to get used to plexiglass at work,  he does welcome the changes brought by technology.

Judge Silver and Vito C. Caruso, deputy chief administrative judge for the Courts Outside New York City, discussed how the courts have changed as they anticipate a new hybrid way of doing business going forward. The discussion took place at Annual Meeting during a program held by the Torts, Insurance and Compensation Law Section.

New rules

Caruso noted that the courts have instituted uniform rules for civil practice that were first used in the commercial court, with the pandemic giving the courts the impetus to make the changes. The rules went into effect Feb. 1.

“What we really want is continuity and consistency for us so that we all know what we’re supposed to do,” said Caruso.

Highlights of the amendments include:

• Presumptive limits on the number and duration of depositions
• Presumptive limits on interrogatories
• Requiring counsel to consult in good faith to resolve and narrow issues prior to a preliminary or compliance conference with the court
• Procedures for resolving discovery disputes and adhering to discovery schedules
• Staggered appearances for oral argument of motions to reduce courtroom congestion.

Silver acknowledged that, “It’s just human nature that when something comes out, everyone freaks out.”

He recalled his own frustrations as a practicing lawyer with different rules for different judges. Now as a judge, he views the rules as ways to improve the system.  In particular, the new rules embrace the use of technology, Silver said.

Silver noted that people are concerned about having fewer and shorter depositions. “At the end of the day, we want to create less work and not more work.”

His one piece of advice for lawyers is if they feel that a deposition needs to be longer, don’t harp on it or get upset. “From a defendant’s point of view, you want a deposition of a plaintiff where you can assess the value of the case and be able to report back to your client about it.”

Ch-ch-changes

Both judges have strived to bridge what lawyers perceive as the “imaginary divide” between upstate and downstate courts. “We are truly trying to make a unified court system out of what we are working with,” said Caruso.

Nevertheless, both judges acknowledge that what works in Buffalo might not work in New York City.

To keep the practice of law in motion, the judges implemented several programs and initiatives, including the Undecided Civil Motions project , where both judges addressed all of the outstanding motions pre-COVID. “I think we had thousands and thousands of motions that were decided by the judges, which move the cases along.”

The courts brought back in-personal trials in October, in the Civil Term, mostly personal injury trials. Although the courts had to pull back due to rising COVID cases in the fall, Caruso was very encouraged because the jurors came. “We had no problem picking any juries on it.”

He noted that lawyers were happy that the court system was very sensitive to the safety needs of the lawyers, litigants and court staff.

“You don’t get sick with the COVID in our courthouses because we’re constantly cleaning, deep cleaning,” Caruso said.

The courts have adopted a rigorous cleaning program, take everyone’s temperature upon arrival and ensure that health forms are submitted by every person who enters the courthouse.

Grand juries still come in, albeit on a smaller scale. Caruso said that the grand juries are serving longer than usual.

“I get emails every day about how safe people feel to come in the courthouse to serve on the grand jury,” said Caruso, who credits each county’s personal protective equipment compliance coordinator for the new protocols.

Building upon the judges’ new confidence in technology, the courts also instituted a new summary trial program. “It’s a summary jury trial without the jury and relaxed rules of evidence,” said Silver. It is handled in a day and the judge makes the final decision.

The courts are also working on conducting arbitrations within the court, be it by court attorneys, referees or judges who will just arbitrate the issue and come to a decision.

The courts have also moved from Skype for Business to the more reliable and robust Microsoft Teams platform, which offers breakout rooms and allows judges to conference immediately. Without this capability, Judge Silver noted that 80% of lawyers would need to have his personal cell phone number, which he would prefer not to give out.

Silver said he does wish it was safe for everyone to be in court more often. “I think a lot of lawyers miss that camaraderie, you know. There’s something special about being in a courtroom and being in the actual court building.”

He expects there will eventually be a compromise between in-person and virtual operations.

“We are going to do a hybrid of both. I think we shouldn’t miss out on the opportunity on what we’ve achieved in this virtual world and how effective that is,” said Silver.