Justice Scheinkman gives update on Appellate Division amid COVID-19

June 30, 2020 Rob Abruzzese

The Jewish Bar Alliance NY held an event where Hon. Alan Scheinkman and Hon. Rolando Acosta, the presiding justices of the Appellate Division, Second and First Departments, respectively talked about the status of the trial and appellate courts in the wake of the COVID-19 pandemic. Pictured clockwise from top left: Hon. Jeffrey Cohen; Hon. Alan Scheinkman; Michael Kremins, vice president of the Jewish Bar Alliance NY; Michelle Stern, executive director of the NYS Academy of Trial Lawyers; Hon. Rolando Acosta; and Hon. Barbara Kapnick. Screenshots via Zoom

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When Hon. Alan Scheinkman took over as presiding justice of the Appellate Division, Second Judicial Department, there were about 3,000 civil cases in the court’s backlog. By early 2020, that number had been cut by more than 25 percent to roughly 2,200. Then, the COVID-19 pandemic hit.

Justice Scheinkman sat down last Thursday with the Jewish Bar Alliance of New York; Justice Rolando Acosta, presiding justice of the Appellate Division, First Department; and Hon. Barbara Kapnick and Hon. Jeffrey Cohen to discuss how the pandemic slowed the court, what it is doing to adjust to the new normal, and what the future of the Appellate Division holds.

“Just in time for the pandemic, we had gotten our civil caseload, our backlog reduced by about 800 cases,” Scheinkman said. “It was a combination of hearing more cases and having a successful mediation program. It was a significant backlog reduction and in addition we had eliminated any backlog in Family and Criminal Court Appeals.”

Judges in the Second Department sit on the bench four days a week and typically hear about 20 cases a day. Since the pandemic, Justice Scheinkman said that they have been limited to closer to 16 cases a day with about 40 percent of court staff working in person.

Hon. Alan Scheinkman, left, presiding justice of the Appellate Division, Second Department sat with Hon. Jeffrey Cohen during Thursday’s discussion.

“We are concerned about the health and safety of our judges and our personnel as well as the public,” Justice Scheinkman said. “We do not have the public accessing any of our facilities at this moment. We have most of the judges working out of their home chambers and home offices.”

Justice Scheinkman said that the physical site of his Brooklyn courthouse presented major issues for the court because even on its best day, it only hosts judges’ chambers for four of the 21 judges in the Second Department.

The other 17 judges in the court, which has one vacancy, have their chambers near their respective homes from Orange and Dutchess Counties, to New York City and all the way out to the end of Long Island. This sounds conducive to social distancing, but makes cases that weren’t filed digitally nearly impossible as judges have to pass files around.

“When the pandemic hit, we basically had to shut down and go to a completely virtual operation. In terms of court operations that meant that there were two calendars, only two, that had to be marked as submitted cases only. Within four business days, we had converted our court to hearing Skype arguments.”

Hon. Rolando Acosta, presiding justice of the Appellate Division, First Department.

In early April, the Second Department began hearing mostly habeas corpus proceedings where people were asking for release from prison for COVID-19 related reasons. When the court resumed its typical operations, virtually, it started with limited calendars. It has since increased to working about 16 cases per day.

“So you can see that even though we have restored our operations considerably, there is still a lag and some of the progress we had made in caseload reduction may, I say may, be reduced,” Justice Scheinkman said.

Justice Scheinkman said that the court will likely continue to operate the way it is now through the end of the summer. Things may change in September, but he added, “September remains to be seen.”

Hon. Barbara Kapnick, associate justice of the Appellate Division, First Department.

The Second Department was equipped with Skype for Business prior to the pandemic, and attorneys could present oral arguments that way if both parties agreed. However, Justice Scheinkman explained that the technology in place was more to handle special cases as needed and was not meant to hear oral argument on every single case.

Justice Scheinkman said that depending on the situation, they would use Skype for Business as much as possible, but that the court is considering alternatives. One request he made of attorneys who videoconference: Be prepared.

“Make sure your equipment works and that you get all of the bugs out before you get on the call,” Justice Scheinkman said. “Test your equipment, test your internet connection because it is disruptive and time-consuming when you have a panel of judges and a lot of lawyers still waiting to be heard and people still have to sort out their technological issues.”

A new Alliance

The meeting was one of the inaugural meetings in the brief history for the Jewish Bar Alliance of New York. The Alliance is technically still in development, but will be made up of five Jewish bar associations in the New York area including the Jewish Lawyers Guild, the Justice Brandeis Law Society of the 9th Judicial District, the Queens Brandeis Association, the Jewish Lawyers Association of Nassau County and the Brooklyn Brandeis Society.

Justice Jeffrey Cohen, an association justice of the Appellate Division, Second Department, will serve as the association’s president, and Michael Kremins will be its vice president.

“It’s currently in formation and is designed to be an umbrella organization for the five New York region Jewish bar associations,” Justice Cohen said. “This organization was created to foster unity amongst our organization, to fight anti-Semitism and racism, amongst other things, to support equal justice under the law, and to deal with issues of mutual concern as members of the New York legal community including legal education.”