Are you worried about the costs involved if you're forced to face off with your landlord in housing court? If so, you should know that one unexpected consequence of the pandemic is that it may be cheaper now to fight your landlord if you get into a legal dispute about repairs, overcharges, harassment, or eviction.
Last year, housing court shifted to virtual appearances and remote legal conferences, which many expect to stay in place after the pandemic subsides. Sam Himmelstein, a tenant attorney with the law firm Himmelstein, McConnell, Gribbin, Donaghue, & Joseph, and a Brick Underground sponsor, says the move means “there will be so much less wasted time" spent in a physical court room, translating into fewer billable hours for your lawyer—and a smaller bill for you.
That can be a significant savings when you consider the hourly rate for a tenant attorney in private practice can be $450 or more and how quickly that can add up.
Trials will inevitably still need to be done in a physical courtroom but the conferences and motions that precede a trial (and have been online since courts reopened) are likely to stay that way. Himmelstein says in the past he might bill a client for time spent at court, waiting for the case to be called, waiting on other attorneys and paperwork and then spending time before the judge. That could amount to two or three hours for a 15-minute appearance.
But now that in-person court appearances can be done online, he gets an email with a time allocated to attend a remote oral argument, which takes no more than 30 minutes. There’s no waiting around and the client is billed $100-$250 instead of $900, Himmelstein says.
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There’s much that is unknown about how the courts will operate when they reopen post-pandemic—cases have ground to a halt and when housing court reopens there will be an enormous backlog—but Himmelstein says in his conversations with court administrators it’s clear that even though trials cannot be done via Zoom, there's plenty that can be done online. "There are strong indications that conferences and motions are going to be done remotely," he says and this is good news for his clients.
If a court battle might have cost a tenant $20,000 before, maybe it will cost $15,000, Himmelstein says. “This only applies to lawyers in private practice—legal services lawyers don’t bill for their time—but it will knock several thousand dollars off the bill,” he says.
Justin C. Brasch, founding partner of the Law Offices of Justin C. Brasch, says it's too early to tell whether there will be savings. "Going online isn't as quick as you think. Sometimes there's a line and you have to wait around for an hour for the judge to hear you," he says. How judges operate post-pandemic is still being figured out.
If there are savings, co-op shareholders who get into litigation with their boards may also benefit. Due to the unique structure of co-ops, where shareholders sign a lease, the board functions as the shareholder's landlord so, like tenants, they can find themselves in housing court.
Himmelstein says e-filings also allow clients to save when it comes to smaller administrative items like the serving of the papers. “You don’t have to hire messengers or incur Fed Ex costs to file papers because it’s all done electronically. You create a pdf and press send,” he says.
The legal profession has been slow to adapt to 21st century technology but the pandemic has accelerated e-filings and remote processes. "There was so much time that was inefficient for the lawyers and expensive for the client," Himmelstein says.
If the process is cheaper for tenants, however, it will also be cheaper for landlords, possibly empowering owners to fight harder against the tenants they want to evict. There's been talk of a tsunami of eviction cases in New York City as the courts start operating again at speed. Landlords may also feel emboldened to go after guarantors for unpaid rent and these cases are yet to be litigated.
To those who are skeptical that the cost benefits of virtual court appearances will be passed on to tenant clients, Himmelstein says he's used to renters being discouraged by the cost of litigation. Even though it is difficult to accurately measure the savings, he says, by allocating his time differently it may allow him to take on more clients.
Efficiency isn't always preferable
Fees might be lower but attorney Michelle Itkowitz, founder of the Itkowitz law firm, says it takes a lot more than court appearances to fight a case. She points out fact gathering, legal research, analysis, the drafting of motions or opposition to motions, as well as continual work on evolving tenant defenses takes up the bulk of her practice.
"Sure, sitting around court for three billable hours becomes 15 minutes from your computer, that might cut costs but there's no way to quantify it," she says. In fact, for a case she is working on she says the judge is giving the option of either having a virtual trial on Microsoft teams or waiting until the courts reopen. Itkowitz says it will be up to the client to decide how to go forward but she would encourage him to complete the process remotely. "It will cost him less," she says. However, all this efficiency isn't necessarily in a tenant's favor. Itkowitz says a more efficient virtual process also speeds up the outcome.
In an Housing Part (HP) case used when a tenant wants repairs, there are advantages to a quicker legal process but if a tenant is having trouble paying rent or is facing eviction it's not usually in their interest for the court proceedings to move quickly.
"Everyone knows people who are being sued are not in a hurry to adjudicate the case unless they feel they have a really strong defense—if you are at some risk of losing, why lose quicker, especially if you risk losing your home?" Himmelstein says.
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