Court inefficiency undermines rule of law – speed is key.

As Thomas Paine famously said, “In America, the law is king.” This year’s Law Day theme—the rule of law—embodies the concept that no individual is above the law; that everyone is subject to and accountable under the law, including lawmakers, law enforcement officials, and judges. This principle was recognized by the ancient philosophers. Democracy focuses on how societies select those who will hold political power; the rule of law concerns how that power is exercised. The rule of law is the foundation of our rights and liberties in the United States. The courts, of course, perform a critical role in ensuring the rule of law. Without an independent, fair and efficient court system, the rule of law would be little more than a lofty, but hollow, gesture. Crime would go unpunished, negligent acts would not be redressed, business contracts would lack enforcement, property rights would be ignored, family legal disputes would be left unresolved. In short, civilized society, as we know it and which we often take for granted, would cease to exist. This is precisely why we worked so hard in New York to keep courts open—to ensure access to justice—even throughout the darkest days of the pandemic. Although during the early weeks of the pandemic the magnitude of the public health crisis necessitated that court operations be limited to emergency and essential matters, in very short time technology was deployed to permit access to justice for a rapidly expanded range of proceedings that did not meet the emergency and essential criteria. Indeed, as of the writing of this article, typically each week over 20,000 virtual court conferences and related proceedings are being conducted, roughly 5,000 cases are being settled or otherwise disposed of virtually, over 1,000 remote bench trials and other evidentiary hearings are being held, and over 2,000 written decisions are being issued. So the miracle of technology, the ingenuity of judges and court staff, and the cooperation and determination of the bar have enabled the rule of law to endure over the past year. ave been serious challenges. Proceedings that do not easily lend themselves to the virtual format—in particular, jury trials—have suffered. And although virtual proceedings are here to stay and will continue to be an important part of how the New York courts conduct business, there are many examples of where virtual is not always as effective as in-person, especially when self-represented litigants are involved. As a result, backlogs have grown in some, although not all, case courts and case types. This is of vital concern, because the viability of the rule of law requires an efficient court system that can consistently resolve legal disputes in a timely fashion. The rule of law would be an empty gesture if the rights of the accused and the interests of crime victims are not speedily addressed, injury victims are subject to lengthy delays in securing redress, contract rights are not expeditiously interpreted and enforced, and critically sensitive family disputes are allowed to fester. So as we approach the final stage of the pandemic, and as we begin the return to eventual full complements of jury trials and other in-person proceedings, our focus is being re-directed to the expanded backlogs of cases we see in many of our courts. The good news is that we have broad experience to draw upon in confronting this challenge. Chief Judge Janet DiFiore’s Excellence Initiative, which up until the pandemic had been so successful in attacking case delays and promoting efficiencies in case processing, provides a blueprint for meeting the challenges we now face. This involves, first and foremost, extensive collection of caseload data for courts throughout the state, and the widespread sharing of that data with Administrative Judges, Supervising Judges, and, importantly, individual judges so they can review and fully understand their case inventories and pinpoint where the problems lie. This intensive focus on addressing aging cases includes, particularly in high-volume jurisdictions, designation of judges to concentrate on resolving the oldest cases and, if they cannot be resolved, readying them for trial. Also critically important is a careful evaluation of how court resources, judges and court staff alike, are allocated and, where necessary, reassigning those resources to allow for maximum efficiency. Finally, any meaningful effort to attack case backlogs must include a major emphasis on alternative dispute resolution (ADR). This includes traditional forms of ADR such as mediation and neutral evaluation, to be conducted by court-established rosters of neutrals and community dispute resolution centers, but it also includes concerted efforts by judges and court legal staff to presume all civil matters are appropriate for settlement, and to endeavor to do so at the earliest stages of the case. A statewide program to dramatically expand presumptive, early ADR had begun in the months preceding the pandemic, and that effort will be renewed in the months ahead as a critical element of the courts’ plans to attack case backlogs and delays. The past year has offered unprecedented challenges for society as a whole, and that includes the courts. But we can take great assurance in the fact that, despite the challenges, the rule of law has endured. Our courts have continued to provide an independent and fair forum for the resolution of legal disputes. The courts’ timely and efficient resolution of legal disputes, however, is an important component of the rule of law. New Yorkers can be assured that this goal will be of the highest priority for our courts as we navigate the challenges that lie ahead.