The COVID-19 pandemic has had considerable effect on appellate practice in New York State’s intermediary appellate court, the Appellate Division. The last months have seen historical firsts, such as all four appellate departments hosting virtual oral arguments on Zoom and Skype. Many parties have not had the opportunity to take part in oral argument, as their cases have been decided on submission or adjourned. The four departments have issued a flurry of notices to the bar revising their rules of practice and many of these changes could very well be permanent.
On May 28, 2020, the Commercial and Federal Litigation Section of the New York State Bar Association hosted a Virtual Town Hall with the Appellate Division, moderated by Jonathan Fellows. The Presiding Justices of the four departments of New York’s intermediary appellate courts and their chief clerks updated the bar on how their courts have been coping during the pandemic, and reflected on everything from the challenges of hearing arguments virtually to the increased collegiality on display during these difficult times. In so doing, the justices and their clerks provided many practical details for appellate practitioners.
A number of common themes emerged throughout the night. The Presiding Justices and Chief Clerks from all four departments expressed that the pandemic has brought the departments closer together, both in terms of their personal relationships and their courts’ procedures, as they have spent considerable time coordinating responses to the pandemic so that practitioners do not have to navigate four contradictory sets of rules and procedures. This process has been ongoing for years, but the pandemic intensified their efforts. These changes are most welcome for appellate attorneys practicing in more than one department, as greater uniformity will undoubtedly streamline the appellate process.
Similarly, all four departments had been making strides to allow more e-filing, but the exigencies of the pandemic demanded their rapid institution. E-filing is now required for all civil matters in the First Department, which has instituted a new digital submissions portal, for example. This appears to be part of a permanent move away from paper and towards digital filings. This makes particular sense for the Second, Third, and Fourth Departments, which cover large geographic areas, and will also save attorneys the additional step of providing a hard copy.
The justices discussed the challenges of hearing oral arguments virtually and gave some insight into how it has affected the deliberative process. Justice Whalen said that their Zoom arguments have gone surprisingly well, but that he has had to enforce the seniority system to prevent judges from speaking over each other during oral arguments. Justice Garry said it has been a tremendously positive experience and that the level of discourse and discussion has been very high. Justice Scheinkman concurred, explaining that while he disliked phone conferences when he was a trial judge, participating in arguments over video is a different experience. Justice Acosta reiterated his colleagues’ impression that the transition to a virtual court has been a tremendously positive experience.
This does not mean there have not been occasional hiccups. Not all parties have reliable internet service and there have been instances where parties have lost their connections mid-argument. Even when all parties remain connected, it is not difficult to imagine that those with superior internet connections will have an advantage during oral argument, as it will be easier to follow questions from the bench (particularly if justices are speaking over each other), as well as the adversary’s arguments, and to evaluate tone and the mood of the virtual courtroom. Anyone who has spent considerable time in Zoom meetings over the past few months can envision a party mishearing a vital question or missing an important point raised by an adversary due to a lagging connection. The justices also expressed problems unique to their courts chosen technology, be it Skype or Zoom, and there would be merit to the Appellate Division choosing a common platform moving forward.
Regardless of these imperfections, with all four justices having had such positive experiences, it is possible that virtual arguments may become more common even after the courts resume in-person oral arguments. Justice Scheinkman suggested that some form of virtual argument might continue to be possible in certain circumstances. For instance, if a party cannot travel to court due to a snow storm, a virtual oral argument might be preferable to an adjournment.
The justices also discussed how the shift into the virtual space has affected their deliberative processes. They appear to have remained almost identical, only now the justices deliberate virtually instead of in their respective conference rooms. Justice Whalen said that one thing that was missing for the Fourth Department judges was their nearly nightly meals when the court is in session in Rochester, as the justices travel there from Buffalo and Syracuse for several nights during the two week sessions. He is worried that in a prolonged virtual world, some of the comradery built through these frequent gatherings could be lost.
The panel also concurred that the experience of going through this period of uncertainty has ushered in a new feeling of congeniality between parties and the court. Everyone struggling to adapt to the professional challenges of quarantines and social distancing, often while struggling through and processing considerable personal trauma, worked to tear down some of the barriers that may have existed between adversaries and between parties and the bench. The justices and clerks expressed a desire for this new comradery to continue when normalcy returns.
When this return to normalcy will happen, no one could say. Justice Acosta stressed that the First Department, like the other departments, has put a lot of effort into getting its virtual operations up and running, and that they will not rush to return the physical space until the safety of the court, its staff, practitioners and visitors can be ensured. Until then, appellate practitioners should check the departments’ websites to make sure they are kept abreast of the latest news and rules.
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The Presiding Justices and Chief Clerks took turns describing what has been happening at their own courts and there are many details that appellate practitioners should consider.
First Department
Justice Acosta and Chief Clerk Rojas started by detailing what has been happening in the First Department. Justice Acosta began by underscoring the importance of transparency at institutions like the First Department and stressed that this was even more vital in moments like these. The pandemic caused the First Department to drastically reduce its courthouse staff, but once everyone adjusted to working from home, they have been able to approach full productivity. The court was only able to hear nine oral arguments in May, but it has 180 scheduled for June over eight dates. It has also admitted over 200 attorneys. All of this has been done virtually over Skype. Settlement conferences and around 300 hearings on motions have also been calendared.
Not all of the delays in the First Department are COVID-related, Justice Acosta stressed, as the court only had fifteen justices, rather than the normal twenty, for some time. With a full bench, it would able to hear approximately 240 more cases per month.
Looking ahead, Justice Acosta said it was too soon to know when the court would be able to return to in-person oral arguments, noting that the First Department courthouse is a landmarked building and that makes safety renovations more difficult.
Second Department
Presiding Justice Scheinkman began by noting that his court is something of a hybrid between the First Department, on the one hand, and the Third and Fourth Departments, on the other, both in how it operates and where it is in the reopening process.
The court had been making strong progress in reducing its backlog before the pandemic. It did not need to make mass adjournments in March or April and instead decided cases by submission or Skype. It has been hearing 80 cases a week spread over four days and has done over 400 virtual admissions.
Recently, the court formalized its Skype procedures. At first, practitioners could just tell the court the morning of the argument whether they wanted to do the argument over Skype, but now there is a more formal process where parties must request a Skype argument over 72 hours in advance. The Second Department does not have definite plans to resume in person arguments and will continue using Skype for the time being.
Recognizing the difficulties of the current situation, the court has been more liberal with adjournments than normal. Justice Scheinkman encouraged parties to file digitally, and advised parties in complex commercial cases, which can often include voluminous filings, to embed links.
Chief Clerk Agostino gave some useful practical advice. She noted that there are only two people in the actual office each day and they are not answering the phones, so, after checking the website, parties should email any questions.
All parties that have made paper submissions should also file digitally as well. Emergency applications should be sent via email, but everything else should go through the portal.
Finally, Chief Clerk Agostino encouraged parties to still make filings even though deadlines are suspended, as when deadlines are reinstated they might be narrow and the court will be very busy.
Third Department
Presiding Justice Garry of the Third Department reiterated many of her colleagues’ points about the struggles and pleasant surprises about presiding over a virtual court (the court held oral arguments via Skype in May). A quarter of the Third Department’s workforce will soon return to their physical offices throughout their 28 counties in the near future.
Chief Clerk Mayberger began by noting that since the Third Department admits all attorneys who are not residents of New York State, it admits more attorneys than any other department, around four thousand per year. The court was forced to cancel multiple admission ceremonies because of the pandemic, but in June it will be holding a virtual ceremony with over a thousand soon-to-be-attorneys, the largest ever in New York. It plans to end the year with about four thousand admissions.
Chief Clerk Mayberger ended by sharing his impression that the experience of going through this period has ushered in a new feeling of congeniality between parties and the court, and has torn down some of the barriers that may have existed before.
Fourth Department
Presiding Justice Whalen of the Fourth Department began by saying that despite having built the plane while it was going down the runway, so to speak, its virtual court has taken flight. The court has been hearing arguments virtually via Zoom and has a full schedule coming up. It added a June/July term with over two hundred cases.
Looking forward, Justice Whalen asked for everyone to keep in mind that there may be budgetary issues as a result of the pandemic, and the Department’s staff could be spread thin.
Chief Clerk Bennett noted that despite most staff working from home, their phones are working and they have transitioned to remote work very quickly.
The court will be expanding e-filing and making it mandatory in family and criminal cases on July 1, 2020. By the end of year, it hopes to have universal e-filing.
