One of the biggest reforms of the COVID-19 pandemic in the legal profession was that almost every court embraced virtual appearances. Sure, many courts have permitted lawyers to appear remotely at conferences and other proceedings for years, but at no time in the past had almost all courts, including the Supreme Court, embraced this practice. As the legal profession is looking to move past the COVID-19 pandemic, some courts are trying to hold more operations in person, and in certain situations, in-person appearances are preferable. However, in an alarming trend, some courts are threatening to hold in-person appearances if lawyers do not settle matters themselves or are holding in-person appearances to punish lawyers. Due to ongoing health concerns, courts should only hold in-person appearances when necessary, and in-person appearances should not be used as a punishment in the COVID-19 era.
The first time I encountered a situation in which a court seemed to be using in-person appearances as a punishment during the COVID-19 era was several months ago after I requested a preliminary conference for a case. A preliminary conference is an extremely routine event at which courts and lawyers set deadlines for discovery and discuss issues that might impact the early stages of disclosure in a case. Before the pandemic, it was fairly common for lawyers to attend preliminary conferences in person, fill out a discovery schedule, and have this approved by a court attorney or judge.
During the COVID-19 pandemic, most courts in a jurisdiction in which I practice asked that in lieu of holding a preliminary conference, the parties just agree to a discovery schedule to be approved by a court. If the parties could not agree to a discovery schedule, the court would arrange a virtual preliminary conference to go over discovery deadlines and the like. There is absolutely nothing about a preliminary conference that requires it to be held in person since it usually just involves filling in dates on a form and getting that approved by the court.
However, several months ago, I received the typical court notice conveying that the parties were encouraged to agree to a discovery schedule to be agreed to by the court rather than attend a preliminary conference. However, in boldface, the notice said that if the lawyers were unable to agree to a discovery schedule, the matter would be scheduled for an in-person court appearance. Due to the in-person court appearance notice being bolded and due to the fact that preliminary conferences can be held virtually without any particular impact on the effectiveness of the proceedings, it was clear that the in-person appearance threat was a punishment if the lawyers could not agree to things on their own.
This notice was issued a few months ago when the number of COVID-19 cases was still high and tons of people in my area were coming down with the virus. Requiring lawyers to possibly use public transportation and assemble in a public facility can increase the likelihood that attorneys will be exposed to COVID-19. Even if COVID-19 cases are lower right now, lawyers might have issues with their immune systems or may be caring for elderly family members so that they need to be especially vigilant about minimizing their risk of exposure to COVID-19. As a result, it is not fair or equitable for courts to schedule in-person appearances as a punishment for lawyers who are unable to resolve matters on their own.
Of course, during normal times, it is appropriate for courts to schedule appearances in order to apply pressure to attorneys in some situations. Attorneys can be procrastinators, and since lawyers usually have dozens if not hundreds of files, they may not devote their entire attention to a matter until a court applies pressure to them in the form of a court appearance or an abrupt deadline. For instance, one time earlier in my career, I was at the trial coordinating part of a jurisdiction in which I practice. The case was low on the list of matters to be scheduled for a trial, so no one expected the case would be sent out for a trial anytime soon.
In any event, the judge inquired about settlement talks, and it was mentioned that the parties were only several thousand dollars away from coming to a resolution. The judge immediately scheduled the case for jury selection that afternoon. This required me to run outside to call my boss, who immediately called all of the stakeholders in the case, and by that afternoon, the case was resolved. Settlement talks had kicked around in that case for months, but the prospect of gearing up for jury selection and that immediate court appearance made everyone scramble to find a resolution.
However, COVID-19 is no joke, and the pandemic is still a public health emergency. Although case counts are going down, the situation is extremely fluid, and judges cannot predict what circumstances will be when in-person appearance are held, especially if it is weeks or months into the future. Moreover, we all know people who are still getting sick from COVID-19. As a result, courts should avoid scheduling in-person appearances as a punishment (or for really most other reasons) for the remainder of the pandemic in order to promote public safety, and because we all know that virtual appearances are effective for most judicial processes.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
