August 26th, 2021

Confirmation Bias, the Vaccine and Science

Every trial lawyer knows the drill: Some jurors have preconceived notions of what the verdict should be long before summations. They seek, during the trial, for little more than select facts to confirm what they already believe in their hearts.

There are others, for sure, that do what they can to keep that open mind. They want to first get every fact, and then decide the issue.

Confirmation bias and science are polar extremes.

Confirmation is obvious in politics as so many will do what they can to justify the conduct of those on their “team.” We see this every day.

Perhaps the easier way to see it is that it often rears its head with this thing we call personal relationships. We meet someone and, perhaps, we really, really, really want it to work out. It’s very hard to see the bad when someone smiles at us just so. We see the good “facts” and ignore the bad.

When framed in the context of romantic relationships some are more likely to understand the concept.

It would be fair to call confirmation bias in this manner little more than human nature. We want to be happy. And it keeps matrimonial lawyers very, very busy.

So we turn to the recently approved COVID vaccine. No longer under emergency use authorization.

You would think that those screaming it was experimental, as an excuse to be anti-vax, would now be silent. Well, you would think that only if you were thinking in terms of facts and science. Not emotion. Not what the heart really, really wants to believe.

Anti-vaxers continue to persist in the face of science, coming up with continued reasons for why it is bad (which I refuse to link to).

Some will come up with the idea that they have great immune systems and that it can’t possibly happen to them. Others have a variety of tin foil hat conspiracies that defy Occam’s razor. Or see a history of government malfeasance. Some are just scared.

This is a problem exacerbated by social media and search engine algorithms that feed us information that we’d previously searched for, thereby reinforcing with “facts” that which we’d already decided.

Human emotion is tough to alter. In the courtroom, we can look jurors in the eye and explain that it must be the head that makes the decision and not the heart. Listen to all the evidence.

And in the courtroom we can (hopefully) debunk junk facts and junk science with cross-examination.

We can also, perhaps most importantly, alert jurors (starting with jury selection) that this process may occur. If the head sees confirmation bias coming, we hope it will alert the heart. (Of course, if you have lousy facts and are defending, you might want the heart to be making that decision.)

Getting rid of such potential jurors is obviously the first priority, but when people are unable to recognize confirmation bias in themselves, they believe they are being fair and impartial. Finding them is not always easy.

Getting people to recognize that confirmation bias is human nature, that we all want our preconceived notions to be verified with fact and to be on the lookout for it, is sometimes about the best we can do. Because it is also human nature that the more people hammer you to change your mind, the more you resist.

It’s the type of thing people must recognize in themselves. You can lead the horse to water, but…

I’m not so self-centered that I believe I can persuade an anti-vaxer to give up the constant hunt for any kind of “fact” that supports what the heart has already decided. They do approach the issue, after all, in different ways.

But perhaps, just maybe, an appreciation of how confirmation bias impacts all of us in our daily lives may cause some to take step back and re-visit an issue the heart had already decided.

And maybe, just maybe, that horse will drink on its own.

 

June 3rd, 2021

So Was the Statute of Limitations Tolled or Suspended?

You know what this is

When the pandemic struck, people stayed home. And when they stayed home, many couldn’t work. And if they could work, it wasn’t the same.

To say that had an impact on the justice system would be an understatement. Every conceivable time limit set forth in the law was now a problem. Such as many statutes of limitations. Civl law, criminal law, family law, no matter what.

Lawyers couldn’t safely go to their offices where the files were, and even if they were backed up in the cloud and accessible at home, couldn’t meet with clients, couldn’t investigate scenes, couldn’t get process servers to serve process. This was obvious to anyone with functioning neurons.

So on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 to suspend the many statutes of limitations for 30 days. He has that authority under Executive Law § 29-a. Nine other 30-day orders followed regarding the suspension. Except for those times he referred to this as a toll. This was his wording on the first order:

“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” 

On October 4th, however, he specially called it a toll in Exec. Order 202.67.

Is there a difference between a suspension and a toll? As the late Professor David Siegel used to say, “You never want to be the test case.” Let some other poor slob carry that water to the appellate courts. Be conservative.

But ultimately, you need to know. Why? Because as Suffolk County Justice Thomas Whalen argued in the New York Law Journal two days after Gov. Cuomo called it a toll, the Executive Law grants permission to suspend and not toll, and there is a difference: A suspension prevents the statute of limitations from expiring until the suspension is lifted. Thus, if it would expire during the course of suspension, then it expires on the day the suspension is lifted.

A toll, by contrast, stops the counting of days dead in its tracks. If a toll lasts 42 days, they you add 42 days to the date the statute of limitations would have otherwise expired.

So. Big difference. And one that I addressed here back on October 6th with an update for Justice Whalen’s opinion.

The argument that Justice Whalen made was that Executive Law § 29-a only gave permission to the governor to suspend, not to toll, and that tolling exceeded that authority.

Executive Law § 29-a(2)(d) provides that an Executive Order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.” 

The issue came to a head yesterday in Brash v. Richards, where the time time to file a Notice of Appeal was blown. The statute calls for filing this within 30 days of being served with it. That took place on October 2, 2020. Then the Governor lifted the suspension/toll on November 3rd. The Notice of Appeal was then filed November 10th, beyond the 30 day limit, requiring the lawyer to argue this was a permissible toll and not a suspension.

Again, it sucks to be a test case.

The court held that this was a toll, notwithstanding the lack of clarity in the Governor’s orders by referring to it sometimes as a suspension and other times as a toll. Why? Because he has the power not only to suspend, but also to alter or modify statutes. The 30-day time period to file a Notice of Appeal started to run, therefore, on November 3rd, and filing it on November 10th was well within the 30 days.

So, there you have it. The Executive Orders resulted in a tolling of the statutes of limitations from March 20 until it ended on November 3, 2020. A period of 228 days if my my quick Google calculation is correct.

Unless, of course, a different appellate court in New York rules otherwise or the Court of Appeals reverses.

It sucks to be a test case.

 

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.

 

December 13th, 2020

Trump Should Be Vaccinated First

According to a new New York Times piece, the Trump White House is claiming first dibs on the new COVID vaccine that is shipping as I type.

Folks are, predictably, outraged. The people who were dismissive of the virus should be last on line, right? The folks who mocked others for wearing masks should be waaaaay in the back. That folks who engaged in superspreader events, as if they were somehow immune, would get the vaccine first is an outrage.

Their antics, after all, have cost the nation dearly. Their followers believed them. They did everything they could do sow distrust of science. As if this was a blue state problem.

300,000 dead. And counting.

But. And you knew there had to be a “but” didn’t you? You saw the caption to this post. Trump should go first.

There are a lot of people distrusting the vaccine at the moment. Why? Well, partly because some wish to ignore science, some say the virus is a hoax and some because they think political pressure from Trump may have rushed a vaccine to the public before it was proven safe.

But widespread vaccination is critical to stop the virus. And you can’t have widespread vaccination without widespread acceptance.

So Trump and his cronies — who have done everything possible to make this situation worse — getting the vaccine sends a message to people: Science is important, the virus is not a hoax and the vaccine is safe.

So Trump should go first, followed by Presidents Obama, Clinton, Bush and Carter. As they have already stated they would.

The outrage about Trump is duly noted. The irony is obvious.

But the safety of the nation is more important. The sooner the virus is under control the sooner we put those masks in the drawer and start going to ballgames, restaurants and back into the homes of our family and friends. Without fear of illness.