Richard H. Epstein
March 22, 2020
Federal and state courts in New York and New Jersey have adjourned all civil jury trials, adjourned many civil bench trials and halted most in-person conferences and oral arguments. If you are a party in litigation who would benefit from a delay, then this situation might be acceptable. But, if you need your existing case to move forward or need to file suit to obtain relief, then the status quo will not do. Below are five tips to move your existing case forward or to seek relief regarding a new dispute in a smart, aggressive and cost-effective manner:
1. Consider arbitration or mediation
Private mediation before a former judge or specialist in the area of law relevant to your case should receive extra consideration in the current climate. Pre-mediation submissions are made electronically to the mediator and any oral communications can be exchanged via telephone. And, while it would be ideal to have the actual mediation session in person, many mediators are equipped to conduct the mediations via the next best thing: videoconferencing. Mediation is not right for every case, and both sides must be willing to engage in a reasonable settlement discussion, but, if the parties are looking for resolution now, as opposed to years later, mediation is a good option.
Alternatively, consider switching from the court system to a private binding arbitration. New York and New Jersey’s court systems have many excellent jurists and court personnel, but the dockets were already heavy before the COVID-19 crisis; the logjam will likely increase exponentially. Instead, you can arbitrate before a former judge or specialist in the area of law relevant to your case, who can set a schedule, hear motions and hold hearings that do not have to be in person. Arbitrators can hold hearings on the papers (with oral argument by telephone) or use videoconference to take witness testimony, all without the parties/arbitrator having to be in the same room. On the plus side, arbitration may lead to more attention to your case, a quicker resolution and possibly a more truncated discovery process. The downsides include, among other things, waiving the right to a jury trial, waiving certain appeal rights, possibly a more truncated discovery process (a two-edged sword) and paying the arbitrator’s fees.
Of course, private mediation and arbitration require the consent of the parties (assuming there is no contractual provision requiring mediation or arbitration). If you are intent on keeping your case in the courts, or are simply looking to delay the litigation process, then these options will not work. For most litigants, however, private mediation and arbitration are options worth exploring.
2. Pursue remote discovery
The current crisis has not yet resulted in an “automatic stay” on commercial litigation discovery in New York or New Jersey courts. Nevertheless, as a practical matter, no court is going to compel counsel, party representatives, the deponent, the court reporter and videographer to all appear in person in the same room. But that does not have to be the end of the line. Rather, the parties may avail themselves of electronic options.
First, depositions may be conducted by video conference or telephonically. The court reporting service can make the arrangements, receive deposition exhibits in advance and then show the exhibits when required to the deponent on a computer screen. Is this process ideal? No. Observing a witness in person and watching them throughout the deposition for body language and other signs of truthfulness is greatly preferred. Nevertheless, this is yet another way a way to keep your case moving forward.
Likewise, most electronic discovery can be done remotely. E-discovery vendors can access and load Electronically Stored Information onto platforms where the ESI can be reviewed remotely for responsiveness and privilege.
Ideally, your attorney and your adversary’s counsel can agree on a “two-way street” approach to remote discovery. If not, then either party can ask the court to step in via motion to set the guidelines, as discussed below.
3. Make some smart motions
The courts are not completely shuttered, and a complete shutdown of the judicial system is highly unlikely. Judges continue to hear and decide motions (albeit on the papers or via telephone oral arguments). Nevertheless, burying the court in a blizzard of motions is not likely to be productive. Counsel should consider submitting a few of the following:
4. Proceed with preparing your case so that it is “ready to go” once courts return to normal operations
Limited discovery motions. As noted above, if your adversary’s counsel is not being cooperative, a motion to compel remote discovery — or a letter application where permitted or required by the court — is your best leverage.
A dispositive motion. If you have enough facts and the law on your side to win the case, why wait? Make the motion now. Having a well-reasoned dispositive motion before the court may also lead to settlement discussion.
Pre-judgment relief. Consider whether your case warrants pre-judgment relief such as attachments.
This crisis will end. Courts may attempt to pick up the slack by recalling judges out of retirement; governments may move quickly to fill open judicial seats and to fund and fill additional slots. At that point, it may be in your best interest to push the case full-speed by being ready to take depositions, submit expert reports and request a trial date. But you and your counsel cannot do that if your case has been back-burnered during this crisis. Now is a good time for counsel to review documents produced by the other side and non-parties, interview witnesses, prepare deposition outlines and hire experts.
5. Have your counsel explain their going-forward strategy and make sure you are both on the same page
To be clear, none of the above workaround suggestions should be pursued without a thorough discussion between you and your counsel. Most law firms are now working remotely, so there is no reason why a dialogue about “next steps” in the litigation cannot take place. This discussion should include an outline of the strategy, explanation of the costs and the benefits, and most of all, consideration of your goals and concerns. After all, one thing hasn’t changed in the course of this pandemic: You are still the client.
Richard H. Epstein is co-chair of the Sills Cummis & Gross Litigation Department. He may be reached at email@example.com or 973-643-5372. The views and opinions expressed in the article are those of the author and do not necessarily reflect those of Sills Cummis & Gross P.C.