Have You Had To Improve Anything Given The Increased Frequency Of Video Conferences? What’s Worked Well For You In Terms Of New Client Intakes?
I’m involved in a special master proceeding before our state’s Supreme Court in a case called State v. Olenowski, which deals with whether drug recognition evaluator [“DRE”] opinion testimony and the drug influence evaluation [“DIE”] technique should be admissible in DWI trials (and criminal cases for that matter). Rather than conduct the hearing itself, the Supreme Court appoints a judge to be a special master, who is responsible for managing proceedings, taking testimony, and ultimately issuing a recommendation to the Court. The Court considers that recommendation, hears oral arguments and renders a decision.
This is a process that takes quite some time and involves a lot of people. The state is represented by several attorneys general. While the defendant is represented by his own attorney, the Office of the Public Defender [“OPD”], with at least three attorneys, has taken the lead in the case because the ultimate holding will affect many more individuals that Mr. Olenowski. There are also a number of amicus (Friends of the court) in the case as well, including myself and at least six other organizations. Many attorneys are involved in the case management conferences, and ultimately, there will be a lot of attorneys involved in the hearings. The special master intends to hold those hearings in person at some point next year.
In the meantime, we have regular case management conferences. The first case management conferences were held in person in the judge’s chambers, which required all of the attorneys to drive down and sit at an enormous conference table. We didn’t know any better, but if you’re at one end of the table and the judge is at the other, you have to be a little more emotive and make yourself heard by talking louder, raising your hands, waving your arms, etc. The people who sit closer to the judge have a bit of an advantage over the other participants.
When we switched to Zoom, suddenly we were all on equal footing. The judge could see us all, and it seemed fairer. Again, I’m not saying the judge was unfair—he’s a very fair person who goes out of his way to make sure everyone is heard. But doing these case management conferences by Zoom has led to a better flow, so I’ve actually enjoyed them.
Special master proceedings are generally not open to the public, which is permitted by our rules. They are strictly for case management, and there is no testimony or legal decisions being made other than the judge’s orders on when discovery or expert reports are to be produced, and ultimately when the hearing will be scheduled in a courtroom. In that sense, Zoom has actually facilitated the exchange of ideas during the case management setting. This also applies to the municipal courts, where you’re dealing with fewer participants than in the special master conference.
Are You Allowing Potential Clients To Visit You In Person?
The pandemic has not really affected the way I’ve done client intakes or interacted with clients, except to the extent that I don’t meet them in person nearly as much as I would in court. Prior to Covid-19, most of my time was spent in court or driving from one court to the next. Although New Jersey is a small state, it’s not uncommon to have to drive for anywhere from 15 minutes to a couple of hours between courthouses. Most of my phone calls, client discussions, and intakes were done by phone, and that dynamic has remained during this pandemic.
I do find that some clients—lately more and more clients—are asking to meet me in person, and I don’t really have a problem with that. We can meet in an informal setting and discuss their situation rather than me doing it in court. One of my practices would be to meet them at a diner to maintain the positive attorney-client relationship and give them the assurance they need. Rather than meeting in court to talk, we are having separate meetings, preferably in outdoor settings at an appropriate distance.
Are There Really 36 States From Which People Must Quarantine Before Entering The Tri-State Area?
Yes. Fortunately, I am from a state that is considered safe for the moment, so I have been relieved of the obligation to quarantine.
What Is Happening With Criminal Trials?
Criminal cases are a whole different animal from municipal court cases because the participants have to deal with jury trials. There are a couple of jury trials starting—one in Bergen County and one in Gloucester County. These are usually single defendant cases. They are trying to figure out how to do the jury selection process. They have done grand juries virtually, but that’s given rise to some problems because grand juries are supposed to be secret, and it’s hard to maintain secrecy in that setting. Both the defense and the prosecution are opposed to virtual grand juries, but the AOC is insisting on trying it out. The tension is interesting and unusual because the defense and prosecution are agreeing on something, while the AOC and the courts are facing pressure administratively to do something else.
There are specific requirements that in serious municipal court cases like DWI or cases involving revocation of driving privileges, the defendant has the right to an in-person trial. Of course, they could waive that right and choose to have the trial by Zoom, but these are cases with relatively serious consequences. One problem is that the Supreme Court didn’t explicitly create an exception to virtual hearings for domestic violence final restraining order [“FRO”] hearings. Most judges were overruling both plaintiffs and defendants who requested in-person hearings because of the AOC directives. This issue went to the Supreme Court, which recently ruled that they should be held in person because the consequences of a FRO can be quite severe.
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