One year ago, New York City became an epicenter of the Coronavirus pandemic, with approximately 5% of the world’s confirmed cases. As positivity rates go down and vaccination rates go up, New York State courts have considered resuming jury trials in the upcoming weeks. The first jury trial was scheduled to start on March 22, 2021, but that date has since been pushed to June due to pandemic safety concerns.[1] Attempts to restart jury trials raise a host of concerns, including the possibility of jurors falling ill. Last week, a juror in a criminal case in the United States District Court for the Southern District of New York tested positive for COVID-19.[2] But even as in-person trials resume, the question remains as to whether the legal world’s year-long experience with conducting business on Zoom will impact how cases are handled going forward.
The prospect of virtual bench trials raises new questions for litigators. For example, can the court require a party to participate in a virtual bench trial over his or her objection? According to a recent decision by Justice O. Peter Sherwood of the Commercial Division, the answer may be “yes.” On December 24, 2020, in AMBACAssurance v. Countrywide Home Loans, Index No. 651612/2010 (Sup. Ct. N.Y. Cnty. Dec. 24, 2020), Justice Sherwood issued the first decision in the New York Commercial Division on the issue of whether to conduct a virtual bench trial over the objection of a party. Despite Ambac’s objection to proceeding with a virtual trial based on the risks associated with the substantial personal interaction that even a remote trial would require, Justice Sherwood concluded that the trial court has the authority to order a virtual bench trial without a party's consent.
This ruling appears to be in conflict with the CPLR and the proposed Commercial Division rule. Ambac argued that it had the “right to an in-person trial.”[4] Citing CPLR 4013, which states that a judge “may direct trial in whole or in part at a specified place other than the courthouse” only “[u]pon stipulation of the parties,” Ambac asserted that the court lacked the authority to order a remote trial absent their agreement.
The proposed Commercial Division rule also appears to require the parties’ consent. In fact, the Office of the Court Administrator’s memorandum that accompanied the proposed rule made clear that the rule afforded discretion to judges and litigants to decline to use video conferencing for any reason.”[5]
As with many things, however, COVID-19 may force a modification of the ordinary rules. In his opinion, Justice Sherwood noted that the court’s authority “to devise and make new process and forms of proceedings” that are “necessary to carry into effect the[ir] powers and jurisdiction” is found in New York Judiciary Law §2-b(3), not CPLR 4013. The court stated that “[n]othing in [CPLR 4013] prevents the court from holding the trial over objection in a location other than the courthouse in exceptional circumstances.” (emphasis added). Based on that authority, several New York courts have ordered virtual hearings and trials despite party objections since the start of the COVID-19 pandemic.[6]
Federal district courts have almost uniformly concluded that they have the authority to order virtual bench trials, even where a party withholds consent. Several district courts, including but not limited to the Eastern District of New York, District of Minnesota, District of Delaware, District of Utah, and the Eastern District of Virginia, have ordered virtual bench trials over a party’s objection during the pandemic. In these decisions, the courts cited Federal Rule of Civil Procedure 43(a) as granting the court authority to move forward over objection where the court has “good cause” for doing so.[7]
The issue of virtual jury trials has arisen less frequently, but some jurisdictions have determined that the parties’ consent is not a prerequisite for such proceedings during the pandemic. The Texas Supreme Court’s COVID-19 emergency order of June 29, 2020, empowered all Texas State courts to require, without consent, the virtual participation of “anyone involved” in a “proceeding of any kind—including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror.”[8] On January 7, 2021, the New Jersey Supreme Court ordered the implementation of virtual jury trials of civil cases through a two-phase plan. Under phase one (which commenced on February 1, 2021), virtual jury trials of civil cases are permitted only in particular districts and only with consent.[9] Under phase two (which will commence April 5, 2021), virtual jury trials of civil cases will be permitted statewide and will not require consent.[10]
But having the authority and exercising it are different questions. Despite determining that the court had the authority to order a virtual bench trial over party objections, Justice Sherwood ultimately decided to stay the Ambac trial until it “may be safely held in person or virtually” based on the facts of the case. Specifically, Ambac argued and had provided an affidavit from a board-certified infectious diseases doctor stating that even a virtual trial might be “unsafe.” Ambac maintained that the size and complexity of the 5-week trial—which would involve the participation of dozens of attorneys, paralegals, consultants, and client representatives, and some 40 witnesses—could not be conducted without exposing the participants to substantial risk to their health.
The court wrote, “The facts provided by Ambac and the views expressed by [Ambac’s expert] constitute persuasive evidence that proceeding with trial, even virtually, would be risky. A case of this length and complexity poses risks, particularly where it is highly likely that each side will organize a ‘war room’ that necessarily involves several people working in close proximity indoors for long hours daily over a period of many weeks.”
As the legal landscape evolves, DRC’s litigation strategists continue to monitor the latest changes to most effectively assist you with preparing for trial, whether live or virtual.