View from the Eastern District Courthouse in Brooklyn. (Photo: Rick Kopstein)

The Commercial and Federal Litigation Section of the New York State Bar Association recently held a virtual town hall with each of the four chief judges of the federal districts in New York State as well as with the chief judge of the Second Circuit. The pressing question for downstate attorneys was "When will the courts open up for in-person appearances?"

We learned from the discussion, and it was no real surprise, that it will be a while before attorneys will be able to physically come to court and even longer before trials can be held in the Southern and Eastern Districts of New York. However, even after the courts "open up," the priority will appropriately be to address criminal trials.

It became clear that civil litigators, who need to move their cases forward, have overlooked that, upon consent, magistrate judges can conduct all proceedings in a civil action. The impact of the pandemic now offers the opportunity to take advantage of the offices of magistrate judges who, upon consent, can decide motions to dismiss and for summary judgment and to hold bench and jury trials. In addition, civil litigators are not taking appropriate advantage of the courts' mediation programs that remain open and continue to function with mediators virtually settling actions.

While there are constraints created by the impact of the pandemic on advancing cases, civil litigators must not forget to utilize magistrate judges and court-annexed mediation programs as they offer avenues to help address growing client concerns that cases are becoming moribund and not moving forward.

Mark A. Berman is a former chair of the commercial and federal litigation section of the New York State Bar Association and moderator of the virtual town hall program.