April 29th, 2021

Stupid Lawyer Tricks – Insurrection Edition

Screen grab from NBC News a moment before Babbitt was shot

Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.

This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?

I get phone calls with some frequency about bad cases. I wrote several years ago that the most important word for a personal injury lawyer is “no.” That hasn’t changed.

And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.

And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.

And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.

Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.

Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”

In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”

The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?

The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.

This can only end badly for the family of Ashli Babbitt. There is no other possible ending.

And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.

 

April 22nd, 2021

Stupid Lawyer Tricks – Rape edition

When folks read about frivolous or silly legal claims, they invariably ask: What did that person sue for this time? They never seem to ask, what kind of idiotic defense was raised?

Because idiotic defenses don’t make the papers. Until they do.

This week the NY Post blared an ugly headline about my hometown high school:

New Rochelle High School blamed girl for her own rape, lawyer says

Blame the victim for her own rape? Is that what the high school did? The high school that my kids just graduated from?

Well, no. That’s what the lawyer did, and the school now pays the price. I know this because I pulled the Answer from the electronic file and saw that there was only a lawyer signature on the verification — no one from the school district.

The Post just pulled this nugget from an affirmative defense raised in that Answer to the suit.

Affirmative defenses, for the non-lawyers who have tuned in, usually are these types in a personal injury case (of which this is one):

  • Failing to start suit in a timely manner (statute of limitations);
  • Failing to state a claim (fail to make proper allegations that, even if true, would result in the case being tossed out)
  • Claiming comparative negligence (the plaintiff was partly at fault and any jury award should be reduced by a proportionate amount — think tripping on a busted sidewalk)
  • Assumption of risk (like getting hit by a foul ball at a game – this was a sporting event, the event was a foreseeable risk and the plaintiff is 100% barred from suit)

There are obviously many more in a laundry list of defenses that lawyers pick and choose cut and paste from given the particulars of a case.

So what did the lawyers claim as affirmative defenses on behalf of the high school? Just that the victim was at fault:

Now that was just dumb. Someone went through the laundry list of potential claims and said the rape victim was at fault for an assault?

And you know this was a mindless cut and paste because “assumption of risk” was also tossed in. But when New York created a comparative negligence statute (CPLR 1411), it wiped out the concept of assumption of risk as an absolute bar to recovery except for the limited cases of sporting events. (See Trupia v. Lake George Central School District). It wouldn’t apply here in any context.

(The actual facts of the incident are unknown to me beyond the Post story, and not for discussion here.)

Now I know what some folks are thinking – what’s the harm of just tossing crap in “just in case”? And the answer is threefold:

First, there’s no actual benefit because pleadings (such as an answer) can be amended, and such amendments shall be freely given. Even up until the time of trial. Even at trial. One of the stock motions at the close of a trial is that “I move to amend the pleadings to conform with the proof.” Sometimes a judge will ask if there is something in particular you have in mind. Sometimes not.

Second, counsel handed the press a headline to the detriment of the client. One thing that must always go through the mind of a lawyer for any public filing: How can the press take this statement and misconstrue it to embarrass my client? And gratuitously blaming someone that says she was raped sure as hell fits that bill.

Third, and possibly the worst. At trial, a savvy plaintiff’s counsel will read the defense and ask the school’s witnesses why they blamed the victim. There is only one answer that can possibly be given: The lawyer did it.

(I did this once when a patient was burned while undergoing surgery: How, dear doctor, was the patient to blame for being burned while she was under anesthesia?)

And when that happens, everything else that lawyer says is looked at sideways by the jury. If the lawyers will blame the victim, why believe anything they say?

This was like kicking the soccer ball into your own goal.

 

February 18th, 2021

Rochester Slammed by Judge for Demanding In-Person Hearings

Elliot Shields of the Roth & Roth firm. Photo by Rochester Democrat and Chronicle

The City of Rochester was slammed yesterday by a New York Supreme Court justice for demanding in-person hearings in police brutality cases. And the order was so wide-sweeping that it extended well beyond the police cases at issue to all matters that the City’s Law Department was defending.

The issue arose out of summer protests surrounding the death of George Floyd, as well as Daniel Prude, a Black 41-year-old who died last March 23rd after being physically bound by Rochester police officers. The police department then engaged in brutal crackdowns against the protesters.

Over 100 people filed Notices of Claim against the police department, a required precursor in New York to bringing suit against a municipality. The City, in turn, then gets an opportunity for a hearing where it takes testimony from the claimant. Such hearings, colloquially known as 50-h hearings after the authorizing statute, are akin to a deposition.

But the City of Rochester’s Law Department demanded that each claimant appear in person for those 50-h hearings, rather than doing them virtually by teleconference. As regular readers know, judges in New York from the outset of the pandemic have forced lawyers to take testimony virtually, refusing to allow matters to be stalled until the pandemic was over. Administrative orders from the courts have since followed.

There was no apparent justification for demanding hearings this way.

Notwithstanding these pandemic related changes, hearings had been attempted in an unrelated hearing effort to move the matters. But during one, Municipal Attorney John Campolieto was unwilling, or incapable, of wearing a mask properly, according to the suit that was filed, and it was held in a small room. Campolieto subsequently tested positive for COVID.

The action was brought by the New York City firm of Roth & Roth, which filed 115 claims regarding abuse by the police related to the protests, and was noticed for numerous in-person hearings. (As per my conversation with partner David Roth.) The well-being of their attorneys were likewise at risk in being forced to in-person hearings. This included Roth & Roth associate Elliot Shields, a Rochester native who maintains connections with the City, who had appeared at earlier hearings and depositions with Campolieto.

Bringing suit in their own name against the head of the Law Department, the firm asserted that demanding in-person hearings during an uncontrolled pandemic was “designed to gain a strategic advantage.” And it was being done despite the fact that the City’s Law Department had just had a COVID outbreak.

Justice Ann Marie Taddedo agreed, and wrote in a decision that the City’s conduct was “arbitrary and capricious” in demanding in-person hearings. But Justice Taddedo went well beyond the confines of this case.

The order was exceptionally wide, encompassing not only these police brutality lawsuits, but all 50-h pre-suit hearings by the City, regardless of whether they are related to these police brutality claims or not.

And still worse yet for the Law Department, an apparently furious judge made the order so broad it encompasses all depositions in all cases for which the City of Rochester is a party.

This decision stays in effect until the emergency declared due to the pandemic is lifted.

The Law Department of the City of Rochester has, in my opinion, really screwed the pooch and done an extraordinary disservice to the citizens of Rochester. With this decision, every judge that comes across the City in litigation in any case will severely question the basis of any request they make, far more so than they might ordinarily. I don’t know what kind of reputation Rochester’s City attorneys had before, but it is most surely in the crapper now.

Whoever made this dangerous and bone-headed decision should be fired.

—————- The relevant documents below——

 

February 16th, 2021

A Year of COVID – And 3 Litigation Changes

You know what this is

It’s been a year since I last set foot in a real courthouse. I appeared for jury selection in a Bronx nursing malpractice case in mid-February. Some money was on the table, but I was pushing for better.

But the news. In the news was the virus. It wasn’t here yet. As far as we knew. But it was coming. And when it came it would come hard, and the world was going to be shut down.

It could be days wasted up in the Bronx waiting for a jury room. More days wasted waiting for a judge assignment after that. If I picked that jury, my gut told me I would never make it to verdict. And then what? How long would it be before my client had another chance?

The client approved of settlement, and I beat a hasty retreat from the courthouse.

It was an unseasonably warm day for February in New York, but I put on my regular winter gloves anyway as I rode the subway out of the Yankee Stadium station near the courthouse. No one, after all, was sure exactly how the virus was transmitted. I touched nothing. The virus was novel.

And a few weeks later news helicopters spun over head as my home was in the bulls eye of the first East Coast Containment Zone. The virus, of course, was not contained. (See: Greetings from the Containment Zone)

What did we learn over the past year? A lot. But I’ll only cover changes to the litigation system. ‘Cause that’s what you came for.

Here we go with three critical changes; the first two have already been implemented (will they continue when it’s over?), and the third will relieve the mammoth courthouse backlog caused by the virus. Given that they collectively change the way litigation has been done for the last 200 years, I would call it significant:

Many Courthouse Conferences Waste Time: Anyone that’s been to the high volume parts of New York City’s courts knows this problem. Hundreds of cases may be on a calendar call. Oft times, if you part of this cattle call, you are just given a new date a few months away. Lawyers gotta schlep to the courthouse for this?

If the case is still in discovery, most issues are resolved by counsel in the hallways. If you have a real issue, you wait (and wait, and wait) for a conferences that takes 5 minutes when you get your turn at the bench. But those five minutes might consume an entire morning of travel, waiting, more waiting, discussion and then travel again. It’s been this way since forever. (See: How One Brooklyn Courtroom Wastes $10M per Year)

On March 13th of last year, at the directive of New York’s Chief Administrative Judge, Lawrence K. Marks, virtual conferences were put in motion in order to reduce foot traffic in the courthouse. (See, Will Coronavirus Push New York’s Courts Out of the Colonial Era?)

Lawyers will now often “meet and confer” to iron out discovery issues without conferences. Sadly, it was not habit before because one side of the equation gets paid by the hour. But now only real problems are likely to see a judge or law secretary (virtually).

For routine conferences this has worked very well, and I hope our judiciary continues this pattern after the pandemic is over. (And it will be over one day. I think it will, I think it will, I think it will.)

Put on a suit, spend 10 minutes in front of the computer, and done. No need to blow half a day for minor discovery issues.

Virtual Depositions Work: While some defense lawyers tried to use the pandemic as an excuse to delay (“We need to see the witnesses face to face!”) that door was firmly slammed shut by the courts. Depositions proceeded virtually. (See: New York Judges Order Virtual Depositions Due to COVID-19)

And you know what? They have worked just fine. I’ve heard few complaints from attorneys on either side. And if you want to be in the room with your own client, have at it. But there’s no need for others to be there if they don’t want to for health reasons, or for mere convenience. There’s no reason I shouldn’t be able to take the deposition of someone in Albany or Buffalo while sitting in my office if I so choose. Pandemic or not.

And if anyone thinks they need to see the reactions of the of the witnesses better, they can always record them. This, of course, is not new. We have had this option for many, many years, but it is very much the exception when done, not the rule.

A bad faith law is needed to move cases: Cases won’t settle without a jury. We knew this before, of course, but it really comes home now. Without the threat of a jury in the box the incentive to settle evaporated for liability insurers, even on clear-cut matters. Worse yet, can now offer even fewer pennies on the dollar if the injured plaintiff was in additional financial distress (and potentially leaning on tax-funded safety net programs to get by).

Insurers have no down side in delay, delay, delay. They just keep the premiums (nicely invested thank you very much) while postponing the benefits. The pandemic is a sweet deal for them, while the victims (and tax-payers) suffer the costs.

And now with the resulting mammoth backlog in the courts due to unresolved cases, and then topped off with cutbacks in the courts due to statewide financial shortfalls (older judges no longer getting certified), there are years of waiting ahead.

But with a good bad faith law, this problem vanishes. Hang the Sword of Damocles over the heads of the insurers and watch their profitable recalcitrance vanish. (See, Why Can’t New York be Like Alabama)

There’s no excuse for New York not having a bad faith law with real teeth, as it has real benefits: Victims get justice, the overwhelmed court budgets get relief, there is less need for tax-payers to fund the costs of the injuries, and the insurance companies merely must do what they were always required to do (but never forced to do).

So there you have it, two very significant changes in the way law has been practiced the last couple hundred years, that we should keep on doing. And one legislative proposal to make the wheels of justice roll efficiently.

The pandemic has caused extraordinary heartbreak in a wide array of areas. We have adapted somewhat to it — and along with you I can’t wait to burn those masks. But some adaptions are worth keeping, and one legislative change is long overdue.

 

January 22nd, 2021

Freedom’s Just Another Word to …?

Down in D.C. at the inaguration, poet Amanda Gorman rocketed to fame with her poem at the close. And deservedly so.

There is poetry, someplace, within all of us. Some just let it out better than others. Much, much better.

Even lawyers. At least those who don’t get stuck in the dreadful legalese that so many are taught.

Back today is our Master of Prose, appellate lawyer Jay Breakstone, with some words on a really important concept after an election, insurrection and inauguration: Freedom.

—————

There is a primal truth to human nature.  We do not see danger until we walk to the edge of the cliff.  Then, we build a fence, erect a sign, or cordon off that which can harm us.  America is that kind of place and, perhaps by design, Americans are those kind of people. We do not have hundreds of years of governments, potentates or tribal chiefs to do our thinking for us.  We’re the ones who have to walk to the edge of the cliff and see the danger for ourselves.  It’s only then that the lightbulb goes off in the American mind:  “Hey, someone can get hurt here.” 

The relief we felt on Inauguration Day was that we stepped back from the cliff, identified the danger, and now we’re going to do something about it.  Why?  Because we got scared.  Boy, did we get scared.  Constitution burning, Nuremburg Rally, crap-in-your-pants scared; It was dark, going down the cellar stairs with rats scurrying about scared; it was can this be the end of the dream scared.

So we, the wretched refuse, said that we wouldn’t.  We wouldn’t fall off the cliff or let anyone else fall off either.  We had done that before in our collective, immigrant histories and it wasn’t going to happen again.  We wouldn’t let it.  Not now.  Not here.  Not on streets still paved with gold.  We didn’t have much choice; we couldn’t go back where we came from.  So, as thick-headed, stubborn, clever Americans, we stood our ground at the edge of the cliff.  It ends, we said, here.  Not one more step.

And the skies cleared; and the sun shined.  The miasma which had cloaked our very souls for four years lifted.  Like a miracle, we saw the path away from edge of the cliff appear; and we Americans began the long journey together; a journey where we’ll bitch, and moan, and yell at each other, and laugh both at and with our neighbors, and in that wandering that is America, find our way once again.  It seems inevitable that this experiment never end, for the result, in heaven’s great plan, is always the same:  freedom.