Plaintiffs Attys In Limbo, With Jury Trials 'Impossible' In NY

By Victoria McKenzie | December 15, 2021, 6:32 PM EST ·

Two years into the pandemic, Justice Doris Gonzalez made a phone call from her chambers in the Bronx County Supreme Court to an attorney who had a case pending — and again reached a nonworking number.

As the administrative judge for a borough of 1.4 million people, Justice Gonzalez says she has worked throughout the COVID-19 shutdown, showing up to the courthouse at 7:30 in the morning and leaving after dark. Yet there is only so much she can do to get civil jury trials moving once again, and they are the lifeblood of plaintiffs attorneys whose caseloads are sitting on the trial calendar, waiting to be scheduled.

"Some have given their files to other people," the judge told Law360. "And some, you call them, and they're out of service."

One attorney she finally managed to track down told her he'd been evicted from his law office, and had no choice but to leave. "It's been the smaller people here in Bronx County who have been unable to last long," she said.

Several small firms and solo practitioners tell Law360 that between social distancing orders and limited courtroom space, they are no closer to getting a trial date than they were a year ago.

The numbers are dismal: according to the New York Office of Court Administration, only 360 civil jury trials commenced in New York City this year, all of them in person, down from over 2,000 in 2019. In the Bronx, where attorneys often waited more than two years for a trial date before the pandemic, 28 cases moved to trial between January and December, as opposed to 309 in 2019.

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The individual stories behind those numbers show something of an existential crisis. Jury trials are disappearing — and rapidly eroding a system of justice that, for the attorneys, defines the United States as a democratic nation.

"I'd live in a dictatorship before I gave up jury trials," said Peter Traub, a New York City lawyer who's practiced personal injury law for 40 years. "I'd live with a king. Jury trials give power to people to make decisions, and to make decisions properly."

According to Traub, in this pandemic, "all of the ills of society are coinciding, and nobody is on the side of my client, or me."

It is difficult to get data on the impact of COVID-19, but in the legal community, tensions are rising noticeably as attorneys try to push trials forward without running afoul of their working relationships. In November, Queens County Bar Association President Frank Bruno wrote a letter to New York's Chief Judge Janet DiFiore, calling on her to extend the vaccine mandate to all individuals appearing in court — including jurors and attorneys — with exceptions for those who can show a negative COVID-19 test.

The extension would allow courts to relax or eliminate current social distancing requirements so more in-person trials could take place, Bruno said.

"What the pandemic has made all too clear … is that there is no substitute for certain in-person appearances, most importantly, trials, when it comes to the resolution of disputes," Bruno wrote. And, "given the backlog of cases that has arisen as a result of the pandemic, what is currently taking place is not nearly enough."

By their own accounts, the pandemic has had a particularly devastating impact on small firms and solo practitioners. Personal injury attorneys, who rely on the threat of a jury to settle cases, find themselves counseling clients on a narrow list of grim options, none of them involving access to the courts.

Bronx County Justice Gonzalez said she's focused on settling cases, and expects litigators to try to resolve issues out of court. But attorneys who litigate medical malpractice and personal injury law tell Law360 that the "real" settlement offers usually don't come in until there's a trial date and a jury in the box.

Several attorneys report that insurers have been taking advantage of the trial backlog, either to offer a small fraction of a case's value or to refuse to settle at all, preferring to keep their money invested.

"Insurance companies are investment firms," Traub said. "If they can delay a case for a few years, your premium is still earning them money in the stock market.

"For the past nearly two years now, for every dollar premium they're taking in they're paying out 10 cents on the dollar," Traub said. "And no one is saying boo."

The pandemic has affected more than just the trial calendar. Traub said it took seven months just to get a preliminary conference scheduled in the Bronx. His client, who was injured in a gruesome accident that ended his career, was falling deeper into debt and growing desperate.

"He's actually getting suicidal on me," Traub told Law360. "His case … it's not going anywhere. He doesn't understand it."

Jesse Minc, a New York City-based personal injury attorney, told Law360 that insurers have been showing up to mediations offering half or a quarter of what he knows a case is worth.

"Obviously when [clients] come to us, it's the worst day of their lives," he said. "They have trouble making ends meet, and the longer the case gets strung along for, the more likely they are to just say uncle and take whatever money is on the table because they have to survive. It has really resulted in lower returns, and degraded justice to people."

And, the lack of a trial date affects the trade.

"We're fortunate that as a law firm we have the money where any one case isn't going to make or break us. We don't have to settle cases today," said Minc, whose practice has nine other attorneys. "But many law firms don't have that luxury. It kind of ends up putting the best interests of the lawyer at odds with those of the client — it's not good."

Traub noted that some of his clients have turned to the case-funding industry for loans contingent on the outcome of a case. Such loans need to be repaid only if the client wins or settles, but they carry interest rates of up to 5.9% per month. The loans sometimes affect Traub's ability to settle cases, since clients end up owing so much money. He said the average case-funding loan doubles every 18 months.

"This client called me yesterday, and he was so depressed," Traub said. "And I told him, I can go get you a loan … but you do understand that basically I'm borrowing from loan sharks." He tells them all the story of one client who took out a $2,000 loan, and wound up owing $58,000. "It never goes well when you borrow from a loan shark — the interest just kills you."

"And I have news for you," he said. "I've borrowed from these guys during COVID to keep my firm floating." Traub considers himself one of the lucky ones. His partner is an underwriter, with access to hedge funds that finance the legal industry. Most attorneys don't have that access, he said. "And they're going under."

Marc S. Albert handles personal injury, death and medical malpractice cases. While the courts are technically open, he says that trials involving more than two parties are just not possible right now. "It appears virtually statewide that more complex cases — including cases with a number of parties where there are going to be a number of lawyers in a courtroom for weeks at a time — are no closer to being tried than they were six months ago, or even a year ago."

Albert says he has one case pending in Nassau County that was scheduled for April 2020. "Not only have we not tried the case now a year and eight months later, but we don't even have a date to try the case," he told Law360.

"This is a case that's going to probably take a couple of months to try," he said, noting the multiple hospitals and defense firms involved. "Unfortunately, because of what's going on with COVID, it just becomes a logistical impossibility right now to have the jurors communally sitting in the courtroom for months upon a time with all of these people, all of these lawyers, all of these witnesses coming in and out."

Albert noted that not all insurers are jumping at what plaintiffs attorneys are calling "the COVID discount." Some general liability insurers have been more willing to negotiate cases in good faith during pandemic. In the early months of the shutdown, when people weren't leaving their homes, "all of these carriers were sitting there getting no new claims." Many of them have been willing to sit down and talk about settling, Albert said.

Other insurers have been taking advantage of the situation, "especially on the medical malpractice end of it," he said. "They know that cases are not going to go to trial anytime soon. … There's just not that sense of urgency to try and settle the case," he said.

Brian Atchinson, president and CEO of the Medical Professional Liability Association, an insurance industry trade group, said that pandemic court closures have "made cases complex for all parties involved."

"As courts open up, we hope that all sides can be given sufficient time to reach the most appropriate outcomes," Atchinson said.

A representative for the National Association of Insurance Commissioners declined a request for comment.

On a deeper level, Minc is preoccupied with what the erasure of jury trials means for the country. "We fought a war with England in large part over jury trials," he said, exasperated. "It's really foundational to what allows Americans to be free. You get the redress of grievances done impartially. The jury system works — and for that to be like the last thing to be put back in place, it just seems that we have our priorities backwards."

"You can go to Madison Square Garden and watch a Knicks game with 18,000 people, and you can't have a jury trial," he added. "It just doesn't make sense to me."

--Editing by Pamela Wilkinson and John Campbell. Graphics by Jason Mallory and Chris Yates. 

Update: References to personal injury attorneys have been clarified with respect to their practice areas.

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