Last week, the Queens County Bar Association wrote to Chief Judge Janet DiFiore to voice its concerns about the relative lack of progress in returning to the conducting of jury trials in New York State. It referenced the latest installment of her regular message to the legal community, which came out on November 1st.
Slow Return to Normal
Importance of In-Person Jury Trials
To the Association’s credit, it focused on the positive, noting the Judge’s appreciation of the importance of in-person jury trials to resolve disputes. And while the letter showed a masterful level of restraint and tactfulness, there is no mistaking its urgent point, which is this. We have learned to work within the restrictions brought about by the pandemic. We know how to socially distance. Most of us are vaccinated: judges, court staff, lawyers, potential jurors and parties to lawsuits. So there is no longer any reason to maintain the status quo of just a few trials going on at a time in any of our many courthouses. And though not addressed in the Association’s letter, there is a strong argument for allowing participants in our trials to be unmasked at appropriate periods.
Facial Expressions Provide Crucial Cues
With a jury pool that is vaccinated and socially distanced, why shouldn’t the attorneys questioning them about their ability to be fair in a particular case be able to see their faces, observe their expressions, and use these crucial cues to help them evaluate their responses? Why shouldn’t members of the jury be able to see the face of a witness testifying before them, so that they can make use of the witness’s facial expressions to evaluate his or her credibility? Why shouldn’t the same members of the jury be able to see the facial expressions of the attorneys while they are at work, giving openings, questioning witnesses, and summing up?
Status Quo is Untenable
But reading between the lines of the Association’s letter is another key point, that is overlooked in most news stories about the pandemic’s effects on the justice system. Without in-person jury trials, many lawyers and firms are not getting paid. Cash flow is a distant memory, and loans and layoffs have become part of our new reality. And this hits lawyers of the personal injury bar, who work on a contingency-fee basis, especially hard, and particularly those who represent plaintiffs. I know, because I am one of them.
We don’t get paid until we resolve a case—hopefully favorably—on behalf of our clients. Resolving cases usually occurs through reaching a settlement, or through a trial. There have been virtually no trials for the past year and a half due to the pandemic shutdown. Unfortunately, there have also been very few settlements, especially of medical malpractice cases. Why? Because without the threat of a jury trial facing them, lawyers who represent defendants have no incentive to resolve cases.
Here is how the pre-trial settlement conference discussion goes at present:
PLAINTIFF’S LAWYER: Judge, defendants have rejected all discussion of settlement, and insist on trying the case. Though we can’t have a jury trial, how about a bench (judge) trial, or mediation?
DEFENSE LAWYER: Sorry, Judge. Though we would of course like to resolve this case sooner rather than later, our insurance carrier has insisted that we defend our client through a jury trial only.
JUDGE: OK, Mr. Clerk, what dates do we have available in 2023?
This is not to say that the pandemic hasn’t been difficult for defense lawyers, too. They have billable-hour requirements, and the pandemic has drastically reduced their opportunities to make their hours. But they continue to receive a steady paycheck.
Justice Delayed is Justice Denied
The current state of the New York State system of justice is untenable, for everyone. The principle that “justice delayed is justice denied” still holds true for litigants. In my own experience, one of my medical malpractice-victim clients will probably die before he sees the compensation I expect he will get, one of these days.
And plaintiff’s lawyers cannot continue to rely on credit indefinitely, or continue to dip into their personal savings and stock portfolios. The science shows that we can get back to work now. There is no benefit to continued foot-dragging. Judge DiFiore has done a commendable job during a long and difficult pandemic, and has faced challenges that our court system has never encountered before. But it’s time to take the next step toward normalcy.