With the outbreak of the Coronavirus (COVID-19) pandemic, all of us were forced to change and adapt to the restrictions imposed upon us – and which we impose on ourselves – including social distancing. Many families are suffering daily from a new reality, whether it be a combination of physical, emotional, social or financial distress. No secret has been made that our governments were not prepared to handle such a large-scale crisis. Neither were hospitals, medical providers and our national economy. Certainly, our judicial system was blindsided and ill-equipped to address legal matters. Instead, courts resorted to “shut-down” mode and ignore all cases they deem are not “essential.”
The Legal Profession has not Adapted to Technological Advancements
For many years I felt that New York State courts are archaic and have been operating on what feels like a “time delay” (20 years behind the times would be generous). A critical problem we overlooked is that many judges and attorneys have never been “technologically savvy” enough to transition to the digital/electronic era, much like doctors and health professionals have. For instance, sometime in mid to late-2013, New York State opened its doors and established the New York State Electronic Filing System (“NYSCEF”). However, the New York courts did not exactly encourage attorneys to avail themselves of these technological and digital launchings, as evident by a 58-page manual:
Initially, electronic filing was limited to the following practices:
- car accidents and motor vehicle,
- medical malpractice,
- product liability and
- other negligence cases
- Real Property
- Lis Pendens
- Commercial Litigation (also known as business litigation)
- Business corporations, partnerships and LLC disputes
- Breach of contract
- Insurance claims
- Disputes involving sales contemplated under the Uniform Commercial Code (“UCC”)
- Arbitration proceedings
Subsequently, some counties in New York State expanded their NYSCEF filings to include Surrogate’s Court proceedings and Matrimonial or Divorce actions. To this date, however, many counties do not permit electronic filing in divorce cases. Nassau County and Westchester County, along with most of the upstate New York counties permit electronic filing in matrimonial cases. New York County, Kings County, Bronx County, Richmond County and Suffolk County never made this transition. So much for the “unified” court system.
Attorneys and Judges Refuse to Adapt to the Times
While electronic filing is available, to an extent, in some counties, a challenging issue we face is that most judges and many attorneys have no clue how NYSCEF works. I would not exaggerate when saying that every judge requires “hard copies” of motion papers and other documents filed electronically. This is entirely counterintuitive! Comparatively speaking, before the start of school and camp, we electronically file health and registration forms for our children. We are not then asked to send in hard copies too. The impression our judges give off is that they are either too busy, have impaired technological abilities, or are completely apathetic to the advancements in the legal profession to do anything to keep up with the time. Perhaps it’s a combination of all.
Several years ago, medical health professionals were not given an option, but were forced to transition to a digital/electronic era. All medical scripts are now electronically transmitted to pharmacies. Could you imagine going to a pharmacy to pick up the medication you desperately need and have been waiting for, only to be told by the pharmacist that while your prescription is online it cannot be filled until a hard copy is received from your doctor? Accountants, too, have been electronically filing tax returns for years. Yet, for some inexplicable reason, the legal profession is reluctant to a digital makeover.
While several counties only recently adopted NYSCEF submissions for matrimonial cases –Nassau County Supreme Court opened their doors in May 2018 – most attorneys have not capitalized on an opportunity to simplify their case load. All one needs is a computer and scanner. That’s it! All payments are made to the County Clerk’s Office online without having to wait and file in person. To make matters worse, few, if any judges utilize NYSCEF, nor do they have the slightest idea how to sift through these menial tasks. Memorizing cases with citations or being able to parrot a novel legal holding word-for-word? Not a problem. But click a link and read words online? Too daunting a task.
I am curious what will happen with the influx of the younger generations of lawyers – who are superiorly advanced and more tech savvy than the older practitioners – to the legal industry? My guess is that we will continue to sweep these issues under the rug for as long as we can. It does not have to, nor should it be this way.
All judges should be required to learn and become proficient in electronic filings. So should each member of their legal staff. This means from the commencement of any action (with the filing of a complaint and an answer) to discovery, to motion practice, to communications such as correspondence, and finally to judgments and orders.
We all know the devastating effect COVID-19 has had on the legal profession, with courts having remained closed since March 17, 2020. Rather than permit attorneys to file new cases or even continue working on active matters, NYSCEF completely shut down by order of the Chief Administrative Judge, Lawrence K. Marks. Presently, attorneys are prohibited to electronically file in any case other than for those which are deemed to be “emergency” matters. This restriction is as entirely subjective. Nonetheless, because we were never prepared for a pandemic, let alone, a technological revolution, all cases are in hiatus, new cases must wait and litigants must suffer. All offices of the County Clerk are closed and do not accept new case fees because no one is there physically. Had judges and attorneys become proficient with NYSCEF filings, we would have been more prepared, and perhaps we would not have shut down the entire judicial system. Pending motions could have been addressed during this “down-time” and not have to be adjourned for months, if not longer.
Custody and Visitation Issues are Growing
For as long as the courts remain closed, the more domestic issues attorneys and parties will face. I have seen no less than a dozen cases where one parent may be understandably concerned with a child’s exposure to coronavirus from the non-custodial parent, and thus, refuses to follow the custody and visitation order or judgment of divorce. Other custodial parents have undoubtedly used the coronavirus as a sword rather than a shield by unilaterally suspending visitation, just to get back at, and punish, their ex-spouse or former loved one. I have always found it disturbing when one parent hates his/her ex more than he/she loves the child!
I don’t profess to know the answers to these challenging dilemmas. We are all confused during these dark days. Any attorney who tells you otherwise is either a good liar or a prophet. Thankfully though, it is not the attorney’s job to contemplate and consider these ongoing and pressing issues. Rather, it is the judges who are cloaked with this responsibility. Last month, the Honorable Jeffrey Sunshine published an article addressing his approach toward domestic disputes and divorces once the courts do, in fact, reopen.
It should be noted that Judge Sunshine is the only jurist to take a “stab at it” and makes clear of his outlook. Until that time, though, divorced or separated parents must resort to working it out themselves, beg and plea to see their children, or perhaps use the weapon of withholding child support. Not to worry though; there is a light at the end of the tunnel. Just be prepared for that tunnel to be stuffed with hundreds, if not thousands of cases with similar allegations and defenses, and wait your turn. It is a travesty that the judicial system failed! Not because of a vicious pandemic, but because we have not collectively transitioned as an industry and prepared for the digital era. Imagine how less burdened judges, attorneys and litigants would be had we been able to address issues during COVID-19. Until that time, we have to take a wait and see approach.