On Beyond Unicorns
The Bencher—July/August 2020
By Ronald C. Minkoff, Esquire
The COVID-19 pandemic has changed our world—and our legal practice—in more ways than we can count. But some things in the world of lawyering do not change; that is the tension between lawyers and judges. Lawyers have clients to protect; judges have a court system to run. Even in the best of times, this means competing priorities, as the lawyers in an individual case strive (depending on their clients’ positions) to either move their case forward or hold it back, while judges must balance those lawyers’ priorities with those of the dozens of other lawyers and clients with cases before them. The competing priorities got worse—much worse—when the pandemic began.
The issue came to the fore on March 18, 2020, when an order from U.S. District Judge Steven Seeger of the Northern District of Illinois spread rapidly across the internet. The order, now known as the “Unicorn Order,” arose out of a lawsuit attempting to enjoin allegedly “counterfeit unicorn drawings.” Art Ask Agency v. The Individuals, Corporations, etc., Case No. 20-cv-1666, 2020 WL 1427085 (N.D. Ill. March 18, 2016). Basically, the plaintiff claimed that the defendant’s portrayals of “elf-like creature[s],” hearts, and unicorns violated plaintiff’s trademarks and sought an immediate temporary restraining order (TRO). The problem: The court almost immediately thereafter ordered all civil litigation “held in abeyance” because of the pandemic.
Seeger ordered the TRO hearing delayed “by a few weeks to protect the health and safety of our community, including counsel and this court’s staff.” He reasoned that while defendants “might sell a few more counterfeit products in the meantime,” the hearing would take up scarce resources, and if successful, would require numerous third-party content providers (Amazon, Google, etc.) to “spring into action within two or three days” to shut down sales. “Either the order would be a nullity,” he decided, “or it would distract people who may have bigger problems on their hands right now.”
Plaintiff was not satisfied and moved for reconsideration, urging that it “will suffer an ‘irreparable injury’ if this court does not hold a hearing this week and immediately put a stop to the infringing unicorns and knock-off elves.” Meanwhile, the clerk’s office had issued an order limiting phone conferences to “emergency situations and where resources permit.” As the court noted, “if there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time.” Id. at *2
Plaintiff did not get the message. Apparently feeling that Seeger was moving too slowly, and perhaps concerned that its trademark rights would be waived (and its business damaged) if it did not pursue its claim, it filed another emergency motion in front of the “designated emergency judge.” This was the last straw for Seeger. He issued a scathing docket entry denying the motion to reconsider. He lambasted the plaintiff’s proposed order as seeming insensitive to others in the current environment and concluded that it was important to keep in perspective the costs and benefits of forcing everyone to drop what he or she is doing to stop the sale of knock-off unicorn products in the midst of a pandemic. Id. at *1–2.
Before the internet cheering for the Unicorn Order had died down—and there was cheering—U.S. Magistrate Judge Jonathan Goodman of the Southern District of Florida issued an equally scalding (and scolding) order regarding a discovery dispute in C.W. by & through F.W. v. NCL (Bahamas) Ltd., No. 1:19-CV-24441-CMA, 2020 WL 1492904 (S.D.Fla. March 21, 2020). With the pandemic taking hold, defendants’ counsel filed an emergency motion regarding the scheduling of a deposition after the parties could not reach agreement. Calling the “emergency” designation incorrect and “frankly, reckless,” Goodman went on at length about the effects of COVID-19 (“Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks.”) and said it was “painfully obvious that counsel for both sides failed to keep their comparatively unimportant dispute in perspective.” Goodman refused to hear the emergency motion and gave the parties an opportunity to informally resolve their dispute. But he said that regardless of whether they did so, he would hold a hearing at which the attorneys would be required “to explain their behavior in context of the far-more-important issues this court (and the entire world) is facing.”
The same judge had a similar reaction in another case to a defendant’s refusal to agree to adjourn discovery deadlines and a trial date in light of the pandemic. (“I had to read the certification twice to make sure I was reading it correctly.”) The judge, who has asked that the order remain anonymous to avoid embarrassing the attorneys involved, excoriated plaintiff’s counsel for trying to push ahead with a trial when no one knows “when the court will be able to safely resume jury trials.” He ordered the lawyer to file a memorandum containing “all the reasons justifying his opposition” and urged that he “brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.” Wow!
Similar orders followed, from courts across the country. See, e.g., Postmates Inc. v. 10,356 Individuals, No. CV202783PSGJEMX, 2020 WL 1908302, at * 9 (C.D. Cal. Apr. 15, 2020) (denying injunction, finding no “emergency” in plaintiffs’ wage and hour claims given the ongoing pandemic), citing Art Ask Agency, supra; In re: CLAY DUDLEY, Debtor(s)., No. 19-27357-B-7, 2020 WL 2569921, at *6 (Bankr. E.D. Cal. May 18, 2020) (extending homestead exemption reinvestment period because pandemic rendered it difficult to make prudent investment decisions).
These orders can be read several ways. On one level, these judges are asking lawyers they consider clueless to wake up: “There’s a pandemic going on, people, so keep things in perspective.” On another, they may be raising a broader point about lawyer civility, using the pandemic as a way to express their frustration at lawyers’ penchant for wasting judicial resources to resolve minor issues that should have been resolved informally. They reflect a view—perhaps more prevalent in the early days of the pandemic—that the pandemic might serve as a watershed moment that would, by forcing people to work together to fight the virus, reorient our priorities and change our legal culture.
We now know better. Even back in March, an English judge ordered a major commercial case to be tried virtually using remote conferencing technology, regardless of the pandemic. See “Virtual trials in a coronavirus world: how it works in practice,” Linklaters (March 23, 2020), https://lpscdn.linklaters.com/-/media/files/document-store/pdf/uk/2020/march/virtual_trials_in_a_coronavirus_world_how_it_works_in_practice.ashx?rev=2448658c-c542-43e0-b849-987473875cfc&extension=pdf&hash=C64D2F285002EC9093B438FCBBE0D962. More recently, judges and court systems throughout the U.S. have made clear that they intend to push cases forward regardless of the risks associated with the pandemic.
For example, in Fisher v. Eddie Bauer, LLC, No. 19-CV-857-JM-WVG, 2020 U.S. Dist. LEXIS 64284 (S.D. Cal. Apr. 9, 2020), the court denied a request to adjourn a mediation and case conference. Although the court stated it “is acutely cognizant of the strain that the COVID-19 pandemic has brought upon society-at-large, especially upon litigants, their counsel, and the judiciary,” it refused to grant an open-ended extension “because we must capture the momentum and march forward as best we can.” Id. at *2-3. The tone was more harsh in Velicer v. Falconhead Capital LLC, No. C19-1505 JLR, 2020 U.S. Dist. LEXIS 64494 (W.D. Wash. Apr. 13, 2020), where the court held that the parties failed to justify their joint request for an extension of case deadlines because they did not provide “specifics concerning any discovery that they have been unable to obtain due to circumstances surrounding the COVID-19 pandemic,” failed to explain “why they cannot conduct…depositions by telephone or other remote means,” and failed to show that the court is not “fully capable of resolving any discovery disputes” that arise. Id. at *5. Equally hard-edged was a federal judge in Finjan, Inc. v. Cisco Systems, Inc., Case No. 5:17-00072 (N.D. Cal. April 30, 2020), who insisted that a jury trial will go forward in a three-year-old case in mid-June, despite the recognition that jurors and witnesses will cite health risks to avoid appearing. See “Cisco, Finjan Patent Fight Headed for June Jury Trial,” Law360 (April 30, 2020).
This is hardly unusual. Here in New York, court administrators made heroic efforts to get courts throughout the state, even in rural counties, to be able to accept electronic filings and to handle court appearance by videoconference, accomplishing more in the two months since the pandemic began than they had in the previous five years. Courts throughout the country continued to do business, while arbitration hearings also kept on, often through videoconferencing. To be sure, none of this was easy, as lawyers, already dealing with the medical and economic uncertainties of the pandemic, had to deal with the stress of new deadlines—and learn lots of new technology to boot. But judges were undeterred.
This attitude may seem remorseless, but it makes sense. For the rule of law to survive, the courts must keep operating. Allowing cases to backlog for what could be months would have been to invite disaster when the backlog ended and the floodgates opened. Judges and court administrators alike realized this, and they made the parties and lawyers realize it too.
In the end, the Unicorn Order and its progeny appear to have been historical oddities, issued at a unique moment in time when judges felt they could put health priorities over the seemingly petty disputes among lawyers and/or their clients. Now judges have learned something different: that modern technology allows them (and the litigants) to have it all, to get cases tried and decided while still keeping everyone involved safe and physically distant. Our lives as lawyers may not be any easier, but in a time of so much social unrest it is good to know that our court system, at least, keeps doing what it needs to do.
Ronald C. Minkoff, Esquire, is a member of the New York American Inn of Court in New York City. He is the chair of the Professional Responsibility Group of Frankfurt Kurnit Klein & Selz, P.C., where he represents lawyers in partnership disputes, disciplinary matters, professional liability lawsuits, and ethics matters.