With COVID cases on the decline in New York (7-day rolling average of 3.2% COVID positive tests), and in particular in the Capital Region (7-day rolling average of 2%), the Court of Appeals announced this week that it would return to in-person arguments for its March argument session that begins on March 23rd.
Since the beginning of the COVID-19 pandemic, the Court of Appeals has swung back and forth between in-person and virtual arguments, as it has attempted to keep up with its argument docket. After first deciding to proceed with in-person oral argument for the March 2020 session, and holding the first day of arguments, the Court abruptly postponed the remaining days of argument on March 18, 2020. It then did not hold arguments during the April/May 2020 Session, and went virtual for the June Session.
After the summer brought a period of lower COVID positive numbers, the Court returned to in-person arguments for the fall, but with significant restrictions to ensure the safety of the participants. Only the Judges and counsel were permitted to attend the arguments, and counsel were directed to advocate while seated at counsel table, rather than share the argument podium. In-person arguments continued through the November Session until New York’s COVID numbers spiked again after Thanksgiving. Once it became clear that in-person arguments were not going to be able to be held safely, the Court returned to virtual arguments for the January and February 2021 argument sessions.
As COVID cases have begun to decline in New York once again, the Court is now returning to in-person arguments at Court of Appeals Hall. The Court has advised counsel in the upcoming cases that they may still request permission to argue via videoconference, but the Court’s preference is to go back to more normal operations. This announcement comes only a few days after Chief Judge Janet DiFiore announced in her March 1, 2021 address that New York courts would resume in-person jury trials at the end of March as well. It certainly seems that although virtual arguments before the Court have been going well, the Chief Judge is looking for the Court of Appeals to set an example for the rest of the New York court system for how to safely resume in-person proceedings.
While the Court of Appeals returns to in-person arguments this month, the Appellate Division departments have so far continued their plan to conduct virtual arguments via Microsoft Teams, at least for the next few months. The First Department, for example, announced yesterday that it would remain with virtual arguments for the March and April terms, but would return to in-person arguments on Wednesdays during the May and June terms, with the remaining arguments on Tuesdays, Thursdays, and Fridays, if necessary, being conducted virtually. If NY’s COVID cases continue to decline, as we all hope they will, a return to fully in-person arguments in the Appellate Division can’t be too far behind.