Resolving Tort Litigation in the Age of COVID-19
In their Trial Practice column, Robert Kelner and Gail Kelner discuss the expanding use of electronic filing and videoconferencing, pretrial and post-trial proceedings and appeals via Zoom or Skype.
July 27, 2020 at 11:48 AM
12 minute read
We are all clearly heartened by the renewed activity in our judicial system after the nearly complete shutdown necessitated by the onslaught of the coronavirus. Now with the expanding use of electronic filing and videoconferencing, pretrial and post-trial proceedings and appeals are back in action. It is such a relief to once again see our judges and their court staff and our colleagues, albeit via Zoom or Skype, and not in person. It is especially wonderful that our court system has put human safety first in its operations but adapted the system to move forward.
Although social distancing and safety can be maintained in conference and IAS parts by the liberal use of videoconferencing and careful scheduling of any in-court meetings, there remains a significant problem which will require more creative thinking. Jury trials have been on hold because of the obstacles presented to guarantee the safety of jurors and trial participants where distancing is imperative but very difficult to implement properly. Many judges have opined that regular jury trials will not commence until some undefined time not in the near future. So the issue remains how to handle personal injury cases which are trial ready and on a jury calendar. CPLR §4101 provides that, unless waived, issues of fact shall be tried by a jury in "an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only. "CPLR 4102 states in pertinent part: "(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury." It is obvious that civil jury trials in the current environment would be dangerous, even with the greatest precautions. Jury rooms with dozens of people in close quarters, with masks or not, should not be considered at this time. Yet there are cases awaiting trial.
Not all trial-ready cases are the same. There are those which await trial on liability and damages and those which await trial on damages only. As a result of the decision of the Court of Appeals in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), there may be an increase in the number of trial ready cases where liability has already been determined against one or more defendants, and the action is on the trial calendar for a jury trial on damages and possibly comparative negligence only. As a result of the imposition of liability, interest has been running since the date of the liability judgment. It may be assumed that defendants will be less sanguine about letting such cases languish. This factor is certainly an incentive for a defendant to be more open to resolving that case than one where both liability and damages are unresolved. The flip side is that where a trial is necessary on all issues, a defendant may seek a bargain resolution where there is a perception that a plaintiff is anxious to resolve his or her case with no trial in sight. Plaintiffs attorneys should consider Rodriguez motions for summary judgment, as favorable decisions may result in the settlement of cases that might not soon resolve.
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