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How Will the Cornoavirus Change New York Personal Injury Lawyers’ jobs, Personal Injury Trials, etc.?

file-139x300The old me

IMG_0454-225x300The coronavirus me

This Central New York and Syracuse area personal injury lawyer hasn’t set foot in his office in three weeks.  (He also hasn’t shaven in three weeks, but that’s another story).  Have I been on vacation?  No.  Have I been laid off because of the coronavirus?  No. (Since I’m self-employed I would have to fire myself!)

Have I fired any of my staff?  No.  They, like me, and like my three partners, are working from home.  This is how a New York personal injury law firm works during a coronavirus shutdown.

How do we do it?  Everything is done over the internet and by cell phone. Let me show you how my New York personal injury lawyer life has changed, and what changes I think should be permanent:

WORKING WITH CLIENTS, INSURANCE

ADJUSTERS, AND OPPOSING COUNSEL

Really, almost nothing has changed in how I communicate with my clients, insurance adjusters and opposing counsel.  I am still emailing and telephoning them, except now it is never from my office, but from my home computer or cell phone.  The only difference is that whereas before I would always meet with my clients for intake of their case and for discussing key strategies, such as settlement, I now do that by Facetime, skype or phone, depending on the clients’ preference.

RESEARCH AND WRITING

A lot of what I do is legal research and writing (letters, briefs, motions, etc.).  Nothing has changed!  I do it all on my laptop from home instead of from my office computer.  I use WESTLAW to research all my legal issues.  When I finish a draft of a document, I email it to one of my secretaries to finalize and format it.  Or for shorter memos or letters, I simply dictate to my secretaries. All my mail gets forwarded to me daily, and I respond promptly.

COURTROOM APPEARANCES

I have had three court conferences and one motion argument since the lockdown began.  Before the coronavirus, those conferences would have required me to suit up and drive to courthouses in Cooperstown, Syracuse and Auburn, where those cases are venued. I would have stood up when it was my turn to talk or argue in a courtroom surrounded by other lawyers, clerks, stenographer, litigants and the judge.  But because of the coronavirus I  “appeared” in “court” via “Skype for Business” (works just like Zoom) from the comfort of my own home.

Did I suit up?  Yes, but – (shsh!  this is just between us) – only from the waist up.

I did not experience any downside to making my court appearances electronically.  I could see the judge, his clerk and my opponents.  Whoever was talking would appear on my screen, if that’s what I wanted, or if I wanted to see everyone on the call, I could select “gallery view”.  I could also see my own face as it appeared on screen, if I wanted to.  I could watch my own gestures and facial expressions, and the judge’s, as I laid out my arguments.  The different view options were amazing!

Were my arguments any less effective on a screen than in person?  I don’t think so.  Do I miss the courtroom?   Maybe a little. I guess I miss the thrill of arguing in front of a room full of people.  But enough narcissism!  Let’s be practical!  I think I advance my clients’ interests just as well “virtually” as I do with my physical presence in court.  And I end up having more time to accomplish other goals (because no travel time). And think of how much gasoline I am saving, and how much smaller my carbon footprint is.

Actually,  I think our courts should adopt this new way of doing things PERMANENTLY.  No more live courtroom appearances for conferences and motion arguments.  All electronic.  Do the planet a favor, and save everyone time.  The only matters we should have to actually attend court for are trials, which I will discuss below.

DEPOSITIONS

Depositions are traditionally held in a law office.  All the lawyers involved in the case are seated around a table with parties and maybe a non-party witness.  The lawyers take turns asking the witnesses questions under oath with a court reporter getting it all down on her stenography machine.

The coronavirus has also ushered in “virtual” depositions, usually by Zoom.  I have already mastered the easy-to-use Zoom feature for showing a witness an exhibit, and for marking it up with a virtual pen in real time on the screen.

I’ll admit that depositions are best done live:  There’s nothing like looking the witness straight in the eye to get a feel for whether she is holding back information, and whether a follow up question is needed. A face-on-a-screen is not nearly as readable for those subtle signals.  Also, exhibits are not as easy to handle online as live. Still, for simple depositions with not-too-hostile witnesses, and without too many exhibits, depositions are quite doable by Zoom.

TRIALS

Trials are off limits during the coronavirus lockdown.  There have been no New York personal injury trials since the shutdown began.  Hopefully, they will begin again soon, at least bench trials.  Jury trials might take a while longer to reinstate because it is nearly impossible to conceive of “social distancing” among the jury members.

Which brings me to my last point:  I can’t imaging trying a personal injury case virtually.  First, the “jury” would be bored to tears just watching a screen for a week or two.  Second, the jury could never get a sense of who is credible and who is not without live testimony.  Third, it would be too tempting for jury members to do online research about the case (which is prohibited) if they were face to face with their computers for days on end.

CONCLUSIONS

Nuf said.  Bottom line on what the coronavirus lockdown has taught me about the future of practicing personal injury law in New York:  Courts should conduct all future court appearances electronically, but trials should be live, depositions should be preferably live but could sometimes be virtual, and lawyers should feel comfortable conducting most of their business from home, or from wherever they may be.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com     I’d love to hear from you!

michaels-smolak.com
Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.
315-253-3293

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