October 12th, 2020

The Post-Pandemic Law Office

One day this pandemic will end. I don’t know when, but it will.

And when it does end what will the future hold for those lawyers who actually know where the courthouse is located and go there on a regular basis? I’m glad you asked.

First and foremost, the courts have partially adapted. Necessity is the mother of invention and all that.

Virtual depositions are going on, despite the fact that some defendants tried to argue that there were reasons everything should be put on hold. And many lawyers are finding out that little is lost in taking testimony this way. You want to be in the room with your client? OK, you can do that. But if opposing counsel or the stenographer doesn’t want to be there, then they can appear virtually. Win-win.

Virtual conferences are now taking place daily with courts. Lawyers know all too well the time spent traveling to/from court and the time waiting (and waiting, and waiting) on those hard wooden benches for your five minutes with the judge. Those are now a thing of the past. Hopefully they will stay that way.

Because most appearances (on personal injury matters) are for discovery issues, and most of it is usually handled in the hallway outside the courtroom anyway. Only a small fraction of important issues need judicial intervention, and most of that can be done virtually.

Many appearances are mere status conferences where, literally, nothing happens at all other than giving you a date to come back in the future. (Yes, dear non-lawyer readers, this stuff was still going on as of the pandemic’s start.) Does anyone really need to kill three hours going to court to be told “We think your trial will be in seven months”?

What does all this virtual appearing mean? It means that, if you want to make your best appearance, your office is now turning into a TV studio. You need to be well lit, well seen, well heard and have a decent professional backdrop.

While I wrote, back in March at the dawn of the pandemic, a list of tips for dealing with this while it was ongoing, I think now that virtual appearances are here to stay. They are successful. So to the extent virtual appearances have been jerry-rigged until now, lawyers should see this as being permanent. The future has arrived.

Think of it this way: You formally may have shelled out $500 – $1,000 for a good suit. So you would look professional in court. Why wouldn’t you also put on your best face virtually?

Incredibly, I’m told by judges, many aren’t doing it. They are oft times phoning it in dressed in casual clothes, or from remote areas with lousy wi-fi. It does not serve your client well to disrespect the court.

You have two offices, the first being the high-priced storage facility that is on your letterhead and the other being your home. One day you will get back to the real office, and may have already started. But the virtual appearances will (hopefully) continue for many of the routine things we do.

For me, I’m moving my office shortly (unrelated to the pandemic) and you can be sure that the nice bookcase I bought 30 years ago will be behind me and I’ll have lights in front of me.

Home offices are trickier, of course, due to the myriad differences from one to the other. But absolutely required — even if forced to appear from the kitchen table in a two-bedroom apartment you share with a spouse and kids — are a good connection, court clothes, good audio and decent lighting. Webcams and lights can be bought for under $100. There’s no excuse for appearing in court as a backlit shadow.

Since virtual appearances are likely to continue past the pandemic’s end, you might as well make those investments now.

Think of it as buying a suit. And spend accordingly.

 

October 6th, 2020

New York’s Pandemic Toll Coming to An End for Civil Cases (updated)

You know what this is

Back on March 7th, Gov. Cuomo declared an emergency in New York due to then COVID-19 pandemic. And with that, issued a tsunami of Executive Orders.

One of those orders tolled the statute of limitations (Executive Order 202.8) effective to March 7th. That tolling was widespread for a number of different areas, inclusive of all civil cases, and included:

any specific time limit for the commencement, filing, or service o f any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws ofthe 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 ofthis executive order until April 19, 2020

I wrote about the need for this on March 16th, and the Cuomo signed the order on March 20th. Yeah, I’d like to claim credit, but I’m no fool. The need was obvious.

Thereafter, every 30 days Cuomo extended the toll (or is it merely a suspension? See update) another 30 days.

The courts were closed. Lawyers and clients alike were sheltering in place, and to this day some lawyers still have not gone into their offices, which are now just very high-priced storage facilities.

For the non-lawyers that may be reading, a toll means an effective freeze. If there was 60 days left on the statute of limitations to sue on a car collision, you would still get that 60 days when the toll was lifted. If you slipped and fell on ice in a ;parking lot in the middle of July while the tolling was in place, the statute of limitations would not start to run until the toll was lifted.

But now the toll (if it is a toll, see the update) is being lifted for civil cases, as noted in the subject heading. It ends on November 3rd (Election Day) as per Executive Order 202.67, 241 days after it started.

So, a practitioners note, if a client has a matter that needed to be put into suit, and you were dilly-dallying because of the tolling, dilly-dally no longer.

And if you continue to dilly-dally, make sure your professional liability premiums are paid up, if you get my drift.

And as for the non-lawyers, the potential clients who want to make personal injury claims, yet waited and waited and waited until the statute of limitations was about to expire, don’t be surprised if lawyers won’t let you in the door. See #10 of 10 Signs The New Matter is a Dog (Before you even consider the merits).

Update: In the New York Law Journal, Justice Thomas Whelan (Supreme Court, Suffolk County) argues that the courts may not view this as a tolling of the statute of limitations, but as a suspension, thereby creating a trap for the unwary. There are, obviously, no cases on this yet as the Executive Orders won’t expire until November 3rd:

While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period. 

The basis of the argument is that, while the original EO specifically said the statutes of limitations were “tolled,” the seven subsequent orders that extended it state that they “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, …” 

Thus, “tolling” in the original and “suspension” in the follow-ups.

Each of the orders cites as its authority Executive Law §29-a, which permits the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency…” It does not use the word toll.

If it is a suspension, as Justice Whelan argues, then you don’t tack on to the end of the statutory period the number of days in the toll. You simply get a grace period until the end of the suspension if your time would otherwise expire, and that means a flood of filings between now and when it ends.

The essence of the issue is this: Did Gov. Cuomo exceed his authority under Exec Law 29-a by creating a toll, when only a suspension was authorized by the Legislature? And what of the litigants that relied on the Governor’s use of the word “tolling?”

The bottom line, in the words of the late Prof David Siegel, Grand Guru of all that is New York’s civil practice law and rules: You don’t want to be the test case. File your damn papers now.

 

August 10th, 2020

No, Flying is Not Safe Yet (Seriously Delta? Seriously?)

I figured, after five months of pandemic, that the airlines would have their acts together. Delta, after all said they would keep the middle seats open.

So we picked Delta to fly our kid down to south Florida for his first year of college. Because we valued safety and security, and apparently Delta understood that.

Boy, were we wrong.

Leaving out of LaGuardia? No problem. Checking kid in to school? No problem.

At the school: Masks signs and social distancing signs everywhere? Yes. Masks required everywhere on campus, even outside? Very heavy-handed for outdoors, for sure, but some people are incapable of understanding nuance. So a one-size-fits-all solution.

At the local Bed, Bath & Beyond? Everyone masked. Target? Everyone masked.

Not bad for Florida, eh? So far so good!

But we had to come home. And fly through Miami International Airport.

Now there are only a couple real choke points at an airport: TSA and the actual plane.

As we approached the security checkpoint I saw a couple people with chin masks — the same types of people who believe that a condom on the balls is effective.

Well, I was sure TSA would take care of that, right? Let’s face it, the chance of dying from COVID significantly exceeds the chance of my plane being blown up.

And then I saw a TSA agent with the nose poking out. And remember, this agent is working with others who had the ability to correct the situation, or have supervisors correct the situation. But there was the schnozz.

And worse yet, there was no crowd control and people lined up tightly to put their stuff on the belt to be x-rayed and walk through the full-body scanners (hold your breath!).

Five months into a pandemic and TSA doesn’t get it.

On to Delta in the vast and mostly empty Miami terminal.

They controlled boarding very well. No clogging of the jetways. Well done by desk agents.

But on the plane? Fuhgetaboutit. Now sitting in the most perilous part of the trip — trapped inside a tin can for hours with people immediately in front and behind you and breathing the same air. Now was the time that masks came down below the nose, or off altogether. Now?!

Delta made announcements. And claimed they would enforce the mask rule. But they didn’t. So the maskless stayed maskless.

One might think I should complain to one of the flight attendants, but they knew. They were going up and down the aisles making sure seat backs were up and trays stowed away. They looked. At everyone. They saw. They elected to do nothing.

Now remember that the primary objective of flight attendants is not serving you a beer. It’s safety. Like helping to evacuate a plane in an emergency. Everything after safety is a bonus.

Delta: If your flight attendants are antsy about confronting mask-holes, why not hire some out-of-work bar bouncers or event security personnel? They are not afraid of confrontation. Many of them have long experience dealing with belligerent drunks and other, assorted malcontents and troublemakers.

And then throw a bunch of people off the planes. And publicize it. Brag about it: “Our airline is the safest because we will throw the mask-holes off the plane! And then ban them for a couple years!” Now that’s the airline I would feel comfortable flying. And, I think, so would most others.

And, as good as Delta was with boarding it was awful with leaving. People racing forward to jam the aisle as if this was the old days when being rude was just being rude and not an actual danger due to proximity inside that long can.

So. A word to those considering travel. Based on exactly one round-trip flight on Delta to Florida. No matter what the airline says, assume they don’t have the stones to enforce their own security rules.

Will taking care of actual enforcement cost airlines money while they are losing buckets of it due to the pandemic? Yup.

But you know what else? The longer this pandemic goes on the more money they will lose. Some will go the way of Pan Am, TWA and Eastern. They have a self-interest in slamming the pandemic down hard, no matter how craven and stupid some public officials are.

And certainly don’t trust TSA to take care of <checks notes> security.

 

August 4th, 2020

Cuomo Signs Bill Limiting Medical Immunity

You know what this is.

Back in April, the New York legislature passed a budget that included widespread immunity for medical practitioners dealing with the COVID-19 pandemic. But in addition to granting some immunity for negligence for COVID patients, it also granted immunity as to other patients in the hospital or nursing home.

That immunity has now been abolished for all patients other than the COVID ones. Cuomo signed the update yesterday.

The original immunity, forged amid a frantic medical crises, assumed that the all-hands-on-deck position of many medical and nursing institutions would result in mistakes elsewhere. So if, for example, a patient non-COVID stroke patient inadvertently didn’t get her medication because the hospital were shorthanded due to overwhelming COVID cases, the Legislature decided to grant immunity.

Public Health Law 3081(1)(5), where that immunity sat, has now been modified to remove that immunity for the non-COVID patients.

The modifications are seen here with showing additions in caps and strikethroughs for the deletions. All of subsection c is now gone as part of the definition of health care services for the purpose of the immunity bill:

That immunity existed — as per the following section 2(1)(b) — if the healthcare practitioner was “impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.”

(The potential immunity for COVID patients remains intact.)

Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.

It’s worth noting, because this will also be litigated, that the original immunity did not extend to gross negligence and certainly not to an intentional tort. So when suits are started now that allege malpractice during the immunity period, you can rest assured that gross negligence will be argued, in addition to claims that the medical care was not impacted by the COVID outbreak.

The changes are effective immediately.

The text of the bill is here:

 

June 1st, 2020

New York Judge Orders Virtual Depositions Due to COVID-19 (Updated x3)

With New York’s courts shut down for almost everything but emergencies, litigation has mostly ground to a halt unless the parties agree to keep going. No trials and no conferences.

A great many lawyers, myself included, have steamed forward with virtual depositions. But what if one of the sides — the one that most benefits from delay — simply tells you to stuff it? They ain’t going forward.

Motion practice to force recalcitrant litigants forward has just started.

We have now, I believe, the first judicial opinion in the state on that — dealing specifically with objections to going forward due to COVID-19.

Last week, Justice Robert David Kalish, sitting in New York County, ordered the parties to proceed to depositions “by remote means” in a Labor Law matter. Count on this decision to be cited widely in the months to come.

Defendants had tried to stall the case, arguing that they were willing to go forward, but that “depositions should occur in the traditional, in-person format, after social distancing restrictions related to the current COVID-19 pandemic have been lifted.”

As the Court noted in rejecting the attempt to stall, “there is no prediction for when all of the pandemic restrictions will be lifted.”

There’s a risk to making flagrantly bad arguments, and that is a judge might call you out on it, and establish a precedent that you are not happy with. Such was the case here with counsel for defendant Time Warner Cable:

While no side claims that it lacks the ability to conduct these depositions by video — and, indeed, during a pre-motion Skype for Business conference, TWC’s counsel noted that he had recently conducted a six-hour deposition by remote means in another case — TWC’s counsel argues that the depositions of the Remote Witnesses should be taken in-person because he himself [and the witnesses] “do not feel comfortable participating in a deposition conducted by videoconference technology.” 

Ouch. Bad argument amplified by the court.

Defense counsel also tried to stall other discovery as well, saying that no trial can take place anyway due to The Virus.

But Justice Kalish was clear that litigants must adapt to this “new normal” as there is no end in sight for the pandemic:

This Court disagrees with TWC’s counsel. To delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable. It goes without saying that business as usual is no longer the normal. The legal profession and its clients are currently coming to grips with the “new normal” brought about by the COVID-19 pandemic. Among other things, this “new normal” means that it is no longer safe and practical for depositions to be taken in person, as was the default during the “old normal.” TWC’s counsel suggests that this case should simply be put on hold until the “old normal” returns.

While the Court did not use the phrase “justice delayed is justice denied” it was certainly there in its essence for all to see:

However, as in any case, there is always a concern that a witness may become unavailable to testify for any number of reasons, including illness or death. During a pandemic, this concern is stronger. Moreover, it remains uncertain how soon the “old normal” will return— if it ever does.

Finally, the court kicks defense counsel a bit by saying, if you really want to sit in the room with your client, go for it. But that doesn’t mean others must take that risk:

Although TWC’s counsel feels that he will be prejudiced by not being able to physically sit next to the Remote Witnesses during their depositions, this order does not prohibit him from doing so. To the extent that the law and social distancing guidance allow, TWC’s counsel (or a co-counsel of his choosing) may be in the same room sitting next to these Remote Witnesses while Plaintiff’s counsel appears by remote means.

There is precedent for doing depositions remotely, but it’s always been on a case by case basis based upon “undue hardship.” So, for example, if an individual was injured in New York and returned home to a foreign country, but could not return for deposition for visa reasons, a court would call that an “undue hardship.” People are not immune from their own negligence, after all, simply because they were “lucky” enough to hurt a foreigner.

But this decision takes the pandemic and uses it broadly. This scene is playing out all over the state, thousands of times over. To the extent it is cited and relied upon by others (as I think it will) it affects every case that is trying to move forward.

It should be noted that not all defendants have conducted themselves this way. Many depositions have gone forward with the agreement of counsel.

But those that see to use the pandemic to gain a litigation advantage are now on notice: If the rest of the judiciary follows Justice Kalish, it won’t end well.

The case is Johnson v. Time Warner Cable.

Update: Moments after publication a friend alerted me of a decision this morning on virtual depositions from Nassau county (Justice McCormack). In this real estate dispute (return of downpayment on a house) the matter of re-deposing the plaintiffs was briefed before the courts shut down. The judge ordered depositions to go forward and, obviously anticipating a coming issue with whether depositions should be done virtually, simply decided it before anyone could yelp:

The depositions shall take place via Skype, Zoom or other electronic means, unless all parties and counsel agree to face-to-face depositions with the appropriate social distancing. [emphasis in original]

The case is here: McDonald v. Pantony

Update #2: In Albany county, Justice Christopher P. Baker ordered on June 2, 2020 that the deposition of a doctor in a medical malpractice case must go forward remotely.

Interpreting the Executive Orders of Gov. Cuomo, which stated that a court may not compel “the personal attendance” of physicians from facilities that treat COVID-19, he wrote that this means they should be done remotely. In other words, the executive order was to halt the potential spread of the virus, not to delay lawsuits against doctors.

The doctor, of course, has every right to have his attorney physically present if the two so desire, but this does not mean that opposing counsel or the court reporter need to be in the same room.

The case is Melkonian v. Albany Medical Center.

Update #3 In Westchester County, Justice Joan Lefkowitz wrote a comprehensive decision that, as with the above cases, mandated that depositions be held virtually. Both Johnson and Macdonald, linked above, were cited in addition to others. .

The case is Chase-Morris v. Tubby.