UNION COUNTY, NJ — The coronavirus has affected everything, including jury trials, and Katherine Dupuis, a former presiding judge of the Superior Court of New Jersey in Union County, reflected on its impact.
“The pandemic affected this an enormous amount,” Dupuis said on Monday, Oct. 26. “The court system shut down, originally. Even now, they are barely hearing anything. Civil trials have not yet started. It is hoped in Union County that one criminal case will be heard by the end of this month. So, between COVID and the fact that we do not have enough judges and the fact that they can’t get people in the courthouse, alternate dispute resolution is the only way to get a prompt response.
“You can have Zoom conferences, that’s happening,” Dupuis continued. “But a classic case, such as a divorce, will contest or auto accident, they’re just not happening. Of course, when the court starts up again, they’re going to have a yearlong backlog, which will be a real mess.”
Dupuis is now an attorney with Lindabury, McCormick, Estabrook & Cooper PC in Westfield and is a member of the firm’s alternative dispute resolution group. Lindabury serves clients throughout the mid-Atlantic region, including prominent corporations, closely held businesses, estates, family trusts and individuals.
“I had a wonderful experience as a judge. I really loved my career,” said Dupuis. “I served in all divisions, which was civil, criminal, family, chancery and probate. I like them all. I like the fact that it’s both statute- and case law–based, and then the judge is asked to apply the laws to the facts. That’s what we do. I very much enjoyed it.
“Mediation and arbitration are absolutely the wave of the future. It was going that way anyway, before COVID. Mediation is voluntary. You and your adversary, your husband or wife, or business partner, agree that you are going to go to a mediator — usually a retired judge, but it doesn’t have to be. One of the nice things there is you get to select the mediator, where in court, you don’t get to select your judge — you get who you get.
“So, with mediation, you try to all sit around the table, essentially, and see if you can reach a resolution,” she continued. “The mediator can self-facilitate this and also can weigh in on an opinion as to somebody’s legal position and say, ‘I’m not sure if a court could agree with you on that one point of view.’ So, for mediation, the key to it is, it’s an agreement. The parties agree to it at the end. Which also means you can do creative things a judge could not do.
“Arbitration is an entirely different thing. Arbitration is a trial. It’s exactly like going to court. It’s just less cumbersome. We do not have enough judges, now that we have COVID, especially when they’re overworked. They keep getting overworked. They keep getting interrupted all the time. So, when it’s your day for a trial, you don’t get the judge from 9 a.m. to 4 p.m., just to listen to you. All kinds of things happen throughout the day. As for arbitration, the judge can just concentrate on you for the day.
“Also, arbitration is helpful in many cases, because the two parties are picking somebody they trust. I really think they are the wave of the future.”
Dupuis also said that mediation and arbitration are less time consuming than court.
“It’s much faster,” Dupuis said. “Before you get a case to trial, you’re down at conferences at the courthouse numerous times. Now, what I’ve described to you are jury trials. You don’t have a jury trial in divorce; you don’t have a jury trial in a will contest or partnership breakup. I think mediation would work extremely well in those cases. Two sides get together with a mediator, figure out what their case is worth and let the mediator help them come to an appropriate point.”
Mediation can also be thought of as settling a lawsuit, so to speak, Dupuis said.
“Mediation is similar to settling,” Dupuis explained. “The two parties have to agree on the terms to settle it. Arbitration is not. In arbitration, the arbitrator gives an opinion, which acts as a final judge.”
Dupuis’ 27 years of experience serving as a judge gives her an in-depth perspective on a lot of timely issues, such as the impact of COVID-19 and the amplified value of mediation and arbitration; the current status of civil jury trials and the socially distanced courtroom; the use of Zoom meetings to come to an agreement regarding disputes; different options in mediation and arbitration proceedings; commercial disputes, including minority shareholder pressure, partnerships/business breakups and restrictive covenants; probate matters, including guardianships, undue influence and will disputes; and current issues in matrimonial/divorce and custody cases, including new concerns caused by the pandemic.
In Dupuis’ opinion, there is no doubt that COVID-19 has changed the landscape for trials forever.
“For a very long time, eventually, we’re going to be so backed up even after the court system opens,” Dupuis said. “It has made everyone much more willing to try to resolve things by alternate dispute resolution. There will always be some cases that do have to be tried. There’s no way around that. That will continue to happen. But I think we will see more alternate dispute resolutions than ever before. I think that’s here to stay.”
Dupuis reflected fondly on her time as a judge. “You’re busy all the time, and you’re really dealing with people’s disputes. People come to you during the worst part of their lives. Something bad is going on, and you have an opportunity to help them and to get the issue resolved. That’s incredibly gratifying. You feel like you’re giving back to the community, and it’s what you’re trained to do as a lawyer.
“In New Jersey, which is a good system, you have to retire at 70. Seventy was coming, though I had a few months. So, that’s why I’ve come off the bench — because the governor is making me. State judges have to retire at 70, not federal judges.”
As for life for Dupuis after retiring as a judge, COVID-19 has put a stop to her favorite thing to do, but once the pandemic is over, she plans to resume doing what she loves most.
“I was supposed to retire in June, and I was supposed to travel to Seattle twice, Nashville once and Croatia,” Dupuis said. “But like everyone else, all of my travel plans have been canceled. I love to travel. But I just have to be glad that everyone’s safe. That’s all that’s important. I’ve been to 45 of the 50 states, and I have to finish the other five. Hopefully, I can plan on doing that when COVID’s over.”