As legal professionals representing design professionals, we have been grappling with the implications of delayed justice for over a year while trying to balance the safety of clients, jurists, court personnel and lawyers during the pandemic. The pandemic, however, presented an opportunity few could have foreseen — a chance to modernize an archaic system, riddled with decades-old rules and practices, previously resistant to internet transformation.
In spring 2020, the largest, busiest and most complex court system in the country came to a screeching halt, at a time when hundreds of civil trials packed New York’s state courts and the city’s courthouses were at their busiest. All trials statewide were postponed and the courts that were briefly reopened in the fall were again suspended mid-November amidst a rise in infections. Only recently, on March 22, 2021, civil trials resumed throughout the state. In New York City, there were 26 jury trials, 19 civil trials and seven criminal trials on schedule for the first week of courts’ reopening. By comparison, in November 2020, the New York state court system had over 1.1 million pending civil actions and over 100 thousand criminal actions in the pipeline.
Federal District Courts fared better with advancing the civil actions, primarily because of the more stringent procedural rules and more hands-on involvement from the federal jurists. Still, the challenges to evidentiary hearings with jurors presented an insurmountable obstacle. Most participants in these court disputes will not have their day in court for years to come.
Last year, most states, including New York, allowed virtual depositions, court appearances, and hearings. This was a much-needed change in how the legal system operated to date. With any hope, gone are the days when attorneys bill a client for hours spent traveling to court for a quick five to ten-minute preliminary or pretrial conference.
In December 2020, the federal judiciary announced a two-year pilot program to livestream the audio of hearings in 13 district courts. Arguments have now even been livestreamed before the U.S. Supreme Court. In late January 2021, the New York City Civil Court in Manhattan, hearing cases with a monetary limit of up to $10,000, launched an online dispute resolution pilot program for small claims matters.
With trials on hold, we have seen exponential growth in virtual mediations and arbitrations, as alternatives to litigation. Early on, there was great apprehension among litigators to partake in the Alternative Dispute Resolution (ADR) proceedings, primarily due to technical challenges with document sharing and the inability to evaluate witnesses’ non-verbal cues. This quickly changed, as attorneys realized virtual proceedings were the only means available to them and their clients. As the year progressed, these ADR proceedings proved to be the main avenues for advancing the disputes to a conclusion, as state courts grappled with administrative quagmire and awaited decisions on reopening policies and guidelines.
What does the future hold for design professionals and insured policyholders?
Virtual hearings and proceedings, with all their inherent anomalies and awkward moments, are here to stay. But audio livestreams and video appearances should not replace in-person proceedings. Non-verbal communication, facial expressions and body language are lost or absent altogether if a hearing is audio-only or may become distorted in a video feed or if a connection gets dropped. We expect courts to continue to upgrade their antiquated infrastructure to accommodate more virtual attendance and participation for parties, jurors (with court-issued tablets or laptops), judges and attorneys.
Fortunately for the state court proceedings, early mediation has now become a mandatory step in every case filed in the state courts in New York. With a recent amendment to the state trial court rules, parties can jointly request a settlement conference before the assigned justice or another judge at any time during the litigation. Courts remain fully committed to implementing a model of presumptive early ADR procedures in order to transform the old culture of “litigate first” to the new culture of “mediate first” in all appropriate cases. This is a welcome development, considering the potential expense, time-commitment and uncertainty of a judge/jury ruling on a dispute’s outcome.
ADR proceedings, however, will remain the leading dispute resolution forum for design professionals and other construction industry stakeholders for years to come. Standard forms of agreement for the A/E community, offered by the American Institute of Architects (AIA) or Engineers Joint Contract Documents Committee (EJCDC), will continue to emphasize the industry’s deference for mediation. Leading dispute resolution centers, including the American Arbitration Association, JAMS and others, are likely to expand their virtual dispute resolution offerings – both mediations and binding arbitrations – for construction/contract disputes with experienced construction industry professionals, frequently non-lawyers, serving as neutrals.