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Law360 (May 11, 2021, 3:53 PM EDT) -- Many court proceedings and services that went remote during the pandemic are here to stay, and virtual courts will play an integral role in the court system even after the pandemic subsides, New York Chief Judge Janet DiFiore said Monday.
Faced with shutdowns and COVID-19 protocols, courts have transformed through technology in ways that have increased efficiency and expanded access to justice, and there's no going back, Judge DiFiore said during her daily address.
"Virtual proceedings are no longer an 'experiment' but have proven to be an effective method of moving cases closer to resolution while ensuring that litigants and lawyers can have their matters heard in a convenient, timely and cost-effective manner," Judge DiFiore said.
"As we move forward into our 'new and better normal,' there is no doubt that many types of virtual proceedings and services will become permanent features of our court operations, even after the pandemic subsides."
Numbers paint a picture of a court system that has adapted to a new reality, the top judge said.
Last week, over 1,100 online bench trials and hearings began remotely. Judges and court staffers presided over 24,300 matters, out of which 5,800 were settled or dismissed. Judges also issued more than 2,200 written decisions on motions and other undecided matters, Judge DiFiore said.
The chief judge's announcement comes as the court system prepares for the return of all judges and court staff to their in-person duties by May 24. Judge DiFiore didn't specify what areas of the court system would become permanently remote.
While remote access technology allows court users to attend proceedings via Zoom and file documents without being physically present at a location, it presents some hurdles — for example, in criminal proceedings.
Defendants have a right under the Sixth Amendment of the U.S. Constitution to face the prosecution's witnesses and dispute their testimony. But that dynamic is not entirely replicable in a remote setting.
Court administrators are still pondering where technology can play a role, said Lucian Chalfen, a spokesperson for the New York State Unified Court System. But there are no plans to phase out in-person proceedings altogether.
"As we continue to return to more normal operations and courthouse foot traffic is able to safely increase, in-person proceedings will continue to rise," Chalfen said. "Certain types of matters do not lend themselves to virtual proceedings, particularly in criminal cases, which face a number of legal challenges."
During her address, Judge DiFiore noted that ensuring equitable access to justice remains a main focus.
"As we follow through on our commitment to virtual court services, we will take great care not to exacerbate existing inequalities in court access for low-income New Yorkers," she said.
The chief judge mentioned a pilot program, rolling out in the state's Third Judicial District, that will create access points for residents who lack computers or reliable internet connections.
Residents will be able to go to libraries and other public places in Albany and nearby Coeymans to participate in virtual court proceedings, e-file court documents, and connect with legal service and pro bono attorneys. Court administrators plan to extend the program to rural areas in Greene and Schoharie counties in the center of the state, according to a statement from the court system.
Prompted by extended courthouse closures, administrators have greatly expanded e-filing, which now covers about 95% of the court system. Before the pandemic, several of the state's 62 counties were cut off from e-filing service, and certain types of legal filings could be done only in person.
But administrators will need to consider other barriers, according to Mark A. Berman, a partner at Ganfer Shore Leeds & Zauderer LLP who co-leads a technology working group at the Commission to Reimagine the Future of New York's Courts. The court system's website needs a remake to make it more accessible to litigants, for instance, and litigants will need personnel to help them use the technology.
"You can't just throw them an iPad and say, 'Go do it.' They need access, and they need help," he said.
The commission, created in June as an independent think tank, has explored applications to modernize the court system and improve access to justice, making the administration of justice easier, fairer and less restrained by physical distance.
Allowing judges to preside virtually in many cases will make them more "portable," Berman said, ultimately helping to reduce backlogs and make the system work more efficiently. Translators too will be able to assist many more court users virtually, and translators for less common languages will be easier to hire.
"It's easy to find virtually. Not so easy to have someone drive 300 miles to a courthouse," he said.
Sharon M. Porcellio, the other leader of the commission's technology group and a member of Bond Schoeneck & King PLLC, said remote appearances will relieve some of the financial burdens incurred in litigation.
"A lot of people have seen the value of it," Porcellio said. "Clients are not going to want to pay for people to travel across the country for a half-an-hour arrest conference anymore."
--Editing by Gemma Horowitz.
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