Chief Administrative Judge Lawrence Marks. (Photo/Hans Pennink)

New York's civil litigators faced an abrupt halt to formal progress in many cases this week, after an administrative order Sunday suspended the filing of all non-essential papers, as defined by the state, due to the ongoing coronavirus crisis.

The order from Chief Administrative Judge Lawrence Marks listed no end date; it followed an executive order from Gov. Andrew Cuomo pausing statutes of limitations until April 19. Marks' order provided a list of which "essential proceedings" will continue, including a catch-all category for "any other matter that the court deems essential."

Lawyers said they were still trying to work out the details of the order this week, and some reported concern, even frustration, as they looked to an uncertain future for clients and law firms alike.

"It's a great handicap, it's major, and I don't like it," said real estate lawyer Adam Leitman Bailey. "We have been filing, but the only things we're filing are affidavits of service and orders to show cause when we have emergencies."

Bailey said his firm still has a lot to do, and many lawyers and staff have appreciated the chance to take a "sigh of relief" and catch up on work with some deadlines suspended, but he's concerned about the group whose days typically revolve around the courthouse.

"The paralegals can't file papers," he said. "The attorneys that only go to court can't go to court. So they have nothing they can do, and we're not a law firm that fires employees … I'm trying to find other things for them to do, but I just don't have it right now."

Creativity will be key in the weeks or months to come, attorneys said, as will attempts at cooperation among opposing parties.

Instead of bringing discovery issues to court for resolution, for example, Julian Modesti of Harris Beach said he understands that judges are looking for parties to work it out themselves or risk prolonged adjournment.

Andrew Kratenstein of McDermott Will & Emery said he's seen a mix of responses from the courts in the first few days following the order. In one case, he said, opposing counsel had papers due Wednesday, so they emailed the clerk after learning about the Sunday order and asked what to do. The clerk promptly told them that the matter was non-essential and would be adjourned until further notice, he said.

In another example, a case which Kratenstein declined to identify but described as a large, multiparty matter, the judge himself contacted all parties by phone and email.

"[He] asked what do you want to do—do you want me to rule on the papers just as they are, without oral argument, do you want me to do something else," Kratenstein said. "He basically said, well, this is your case, I want to do what's best for you … he was very gracious about it."

The parties decided to reschedule for a date in May when the judge was scheduled to be in court, although Kratenstein said they're aware arguments could be rescheduled again if it still isn't safe to gather as a group.

Modesti, a Syracuse-based commercial litigator and mediator, said he thinks people will be looking for ways to resolve cases outside of court during this period.

"It's a more ripe environment for settlements," he said, especially given that the current suspension has no end date.

He also expects more people to opt for alternative dispute resolution, whether they're hoping to wrap up a case altogether or deal with certain issues so that other parts of the case can move forward.

Overall, civil attorneys said this week, the federal court system is handling the switch to remote work much more smoothly than the state system.

Kratenstein said he participated in a virtual status conference with a federal judge Wednesday, and it worked "reasonably well."

"I think the rubber is gonna hit the road when we get to things like evidentiary hearings and trials, which are gonna be a lot tougher to do remotely than what I had [Wednesday], which was a status conference," he said.

New York City arraignments began operating remotely this week, Unified Court System spokesman Lucian Chalfen said, but remote capabilities are expected to spread.

"While our immediate attention has been on getting virtual court proceedings up and running in New York City criminal court, we are well aware of the concerns of the civil bar and have been in discussions on how to address them," Chalfen said. "We expect to have some updated guidance in the next week to 10 days."

A few upstate counties are expected to begin virtual arraignments next week, Chalfen said, and efforts are underway to bring virtual capabilities to New York City civil court soon. He said spotty internet and cell service in some rural areas has been a barrier to bringing the service statewide.

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