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The US now has the highest number of coronavirus cases in the world with widespread ‘Stay at Home’ orders in force across many states. The US legal system has been forced to rapidly adapt in the face of the sudden restrictions and uncertainty brought about by the Covid-19 crisis.

We spoke with James B. Daniels, partner at US law firm Riker Danzig Scherer Hyland & Perretti LLP, to discuss the impact of Covid-19 on both the legal profession and the US justice system. Riker Danzig is one of New Jersey’s oldest and largest law firms and Jim specialises in litigating complex commercial disputes in both the state and federal courts. He is also an experienced white-collar criminal defence attorney.

How has the profession been affected by the Covid-19 crisis?

In general, the impact of Covid-19 on the legal profession in the US has been substantial. “It’s very different. Partners, associates and staff members at firms have taken pay cuts. Some firms have furloughed staff and others have carried out redundancies. It has had a very dramatic impact on the practice of law as we’ve known it”, commented Jim. 

Aspiring lawyers have been particularly affected as many firms choose to halt their summer internship programmes or push back the start dates for junior lawyer roles indefinitely. The impact this will have on the future growth of the profession remains to be seen.

When assessing the volume of work lawyers are working on this year compared to last year, Jim commented, “it really depends upon the nature of the work you are doing. Some practices are booming and others have been, and will continue to be, harder hit”. The practice areas likely to face a surge of new work include cases concerning business disputes and litigation involving customer complaints and insurance cases (such as those dealing with force majeure and business interruption policies).

How well prepared was the US legal industry for dealing with the impact of Covid-19?

While no one could have anticipated the pandemic, it is likely that larger international firms were better prepared to deal with the immediate impact than smaller regional firms. The staff at Riker Dazing have been working remotely for the last few months. The transition to remote working was smooth as attorneys and paralegals were equipped with laptops and the necessary equipment to work remotely prior to Covid-19.

The change to working remotely with existing clients has been straightforward as it has been easy to run meetings via Zoom. “It has been relatively smooth and much easier than I would have anticipated. In fact, it seems to be easier to schedule meetings when everyone is working remotely as everyone’s schedules are more open”, said Jim. However, working remotely does present challenges when establishing the foundations of strong working relationships with new clients as it is arguably easier to build rapport during face-to-face meetings.

Collaborating with colleagues online has also proved more challenging. Many lawyers find it easier to bounce ideas off one another in the office; being there in person makes is easier to facilitate robust discussion and incorporate different perspectives. “For me, this is much easier to do in person than over a Zoom call. There are definitely downsides to working remotely”, noted Jim. When dealing with complex litigation matters it is often easier to sit in one room and bat ideas around, prepare an agenda and divide assignments between multiple teams; this can be trickier on conference calls where people unintentionally speak over one another.

Were remote court hearings common prior to the restrictions now in place because of Covid-19? How well equipped are courts in the US to handle remote hearings?

Telephone hearings occasionally took place for certain status conferences depending on how far the parties had to travel to attend in person. “The rule was that most conferences were done in person, but it wouldn’t be uncommon for status and preliminary conferences to be held remotely. However, in-person conferences are now the exception rather than the rule. My sense is that remote hearings are going to happen much more frequently. The days of waiting in line to go through court security checks are numbered”, commented Jim.  

The federal governments and states are doing things differently in response to the Covid-19 restrictions. The experience of those attending remote hearings in the New York state courts has been positive, as Jim noted, “so far the process has been smooth and seamless, although the remit of cases that the courts are entertaining is much more limited”.

Jim has recently been involved in a business dispute case where the plaintiffs were able to convince the court on an ex-parte basis that the matter was Covid-19 related. The plaintiffs then filed an order to show cause for a temporary restraining order and a preliminary injunction. Each party filed and served their papers electronically and subsequently received a notification from the court that the remote hearing was scheduled. The parties were provided with the telephone number of a specific court office to call and the time at which the hearing would commence. “It went very smoothly. As a litigator, it would not be uncommon for there to be a substantial delay for a matter to be heard. I was pleasantly surprised - we called at the designated time and the court was ready for us”.

It is possible that this experience of an urgent remote hearing was positive because of the limited number of cases presently being heard. There are currently no civil or criminal trials taking place in the New York courts; new matters can be only be filed if they are emergent matters (for instance those involving guardianship or mental health). Business and commercial litigation matters (such as breach of contract or fraud actions) can only be filed if they are related to Covid-19. In addition, the courts are not accepting the filing of any new documents (such as counterclaims) on existing cases.

Had the US courts embraced digitisation prior to the Covid-19 crisis?

Electronic filing has been available in the bankruptcy court, federal court and most of the state courts for several years. However, the implementation of digitisation has been inconsistent. For example, electronic filing was already available at the Law Division in New Jersey (where cases requiring a monetary judgment are heard). Yet electronic filing is still not available in the New Jersey Chancery Division (where equitable relief is awarded).

The unavailability of electronic filing in some courts is unlikely to pose an immediate problem given the current restrictions on filing new matters and motions. However, Jim predicted that the current climate “will encourage those courts that haven’t got around to allowing electronic filing yet to do so. It will force their hand – for the few courts where electronic filing is not in place then it is now just a matter of time before it is”.

When will the volume of court cases return to normal and what will the impact of this be?

It is too soon to tell; the courts may start accepting new matters in the next few weeks, depending on state and federal guidance. When the courts do start accepting new motions, it is likely that pending matters will initially be scheduled remotely.

If the backlog of new cases and hearings increases and the court system becomes overwhelmed, it may force parties to compromise and contemplate settling when there may have been no impetus to so before. Parties will need to look at things differently and this could mean more cases settling out of court. Jim commented, “it may force people to have more nuanced negotiations and compromise because they know it is going to be more difficult and problematic to get something filed and heard at court and get results”.

It is likely that remote court hearings will become more common place in the future. Jim noted, “I am hopeful we can continue to do this more efficiently going forward. There is no reason why many of these hearings can’t be heard remotely”. There are also clear time saving advantages for lawyers when attending remote hearings. Not travelling to and from court and waiting outside court rooms will undeniably save time and allow lawyers to work smarter, with Jim admitting, “I can’t tell you how many hours I have wasted in court”. Despite this, there are undeniable benefits for lawyers attending court in person. Litigators relish seeing the whites of their opponent’s eyes; being able to see your adversary, size them up and read their body language in person is an experience which is difficult to replicate remotely.

How have the US judiciary adapted to working remotely?

It is unclear whether judges and their staff are currently working remotely, or indeed ever will. Jim believes they are still working from the court-house, commenting “at a recent remote hearing I attended, we called into the court-house and the judge was there. I don’t envisage judges doing this remotely from their homes”.

It seems courts are instead focusing on reducing the volume of lawyers attending court in person. Going forward, judges may attend both in person and remote hearings, although it is likely that the number of remote hearings will increase dramatically.

What will the ‘new normal’ US legal system look like?

There seems to be no real reason why the US legal system will not continue to embrace remote working and the technology associated with it, particularly given the relatively positive experiences that lawyers have had so far.

Looking ahead, it is possible that up to 80 – 90% of preliminary and status conferences, as well as discovery related motions, will be held remotely. However, the courts may still be reluctant to hear arguments on important issues such as motions to dismiss and summary judgment remotely; these are more likely to be heard in person.

Jim commented, “It is difficult to put a number on it; we are going to see fewer in-person court appearances and only in those cases where the courts deem it essential. I’m hopeful that it’ll give us an opportunity to rethink the way that litigation should be handled and whether we can do it more efficiently in the future”.