Ask the Attorney: Courts in the day of COVID — What it means for Litigants

The COVID-19 pandemic has reshaped just about every aspect of our daily lives, so it is no surprise that court operations have changed as well.

Slowly the courts were reopening, although not entirely to date, and each county is handling appearances a little bit differently. Changes continue to take place, as the various colored zones impact gatherings, including court appearances.

So whether you have a pending court case or are facing the possibility of one, the court system is not business as usual. But do not be discouraged, there are benefits to litigants that may not have been anticipated.

Unless there is a matter scheduled for an in-person trial or hearing, which is becoming increasingly rare all across the state, most Supreme and Family Court matters are being conferenced via Teams or by phone. The courts typically take the lead in setting these virtual appearances up with Teams. If you have a computer or iPhone you will need to download the Teams App, but you do not need to open an account or pay for the App.

Depending on the nature of the Court appearance, the parties may not even have to be present — the court will conference with counsel only. Where parties are required to be present, the court will coordinate virtual appearances either by Teams, telephone, or by the client appearing with their attorney at the attorney’s office, though this has become discouraged by many firms, in an effort to limit the persons coming and going to law firms and attorneys’ offices.

Until recently, Family Court proceedings have been requiring more in-person appearances and client participation, also often allowing them to appear via Team, by telephone, or with counsel at the attorney’s office. The key for litigants is to confirm with their attorney if, and how, they are to be present at any of these court dates.

As stated, there are some unanticipated benefits for litigants — specifically, cost savings. For example, anyone who has been to Family Court knows that a 10 a.m. appearance rarely gets called before the judge on time and that parking for most courts is either non-existent or expensive. Add to that the cost of paying counsel to travel to and from court, and one appearance can mount up both expense and frustration. Now, with virtual appearances, many of these problems disappear. The attorney merely logs into a virtual court appearance and awaits the court’s availability.

Conversely, this means that communication with your attorney is even more essential. If a court appearance is scheduled, confirm whether you need to be available or not. If so, how will that be coordinated? Do you have the technology needed to be present and if not, what are your alternatives? Similarly, if you are not required to be present (virtually or otherwise), make sure you know what will take place at the conference, what your attorney’s goals are, and be sure to get debriefed afterward. Not being present during a court appearance with your counsel results in loss of real-time communication when often crucial matters are being discussed.

Finally, where trials are required, either in Family or Supreme Court, efforts are being made to convert many to virtual hearings, though some in-court physical appearance of all parties and counsel is possible, usually requiring special permission of the Chief Administrative Judge for each District. The complications of examining and cross-examining parties and witnesses, working with exhibits, and arguing objections are numerous. Many of these problems are being addressed, but one can imagine the handicap of not being face-to-face to argue and present cases as sensitive and nuanced as the issues involved are in divorce and custody litigation. If it is an in-person trial or virtual trial, the amount of preparation for you and your attorney is the same.

One further innovation directly related to the imposition of the COVID restrictions is the creation of the Electronic Document Delivery System (EDDS), which now permits Family Court documents to be filed electronically. This was never available before, and is also a time and expense saver for clients, as documents that previously had to be mailed for filing, or brought to a Family Court Clerk’s Office for filing can now be sent with ease from your attorney’s office, saving time and travel expenses for clients.

Many of the changes that are occurring with the courts are likely to hold over even after COVID-19 is no longer a significant threat. Innovations that have taken place to address the public health are likely to continue as the courts find more efficient ways to conduct business. Having counsel that understands these changes and the pros and cons of how to work with clients and the courts, is essential.

Christine F. Redfield, Esq., is a Senior Associate with the Rochester office of Tully Rinckey PLLC. She also provides representation in matters relating to divorce, separation agreements, adoptions, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre- and post-nuptial agreements, orders of protection and family offenses.  She can be reached at (585) 492-4700 or [email protected].