July 14th, 2021

What is a Signature? (Does your unsigned email count?)

We lawyers love, love, love our formality, oft times filling pages with pretentious legalese. I’m sure that wax seals and red ribbons were invented by lawyers, to make doubly, triply sure that everything was authentic. And redundant.

And when seals and ribbons went by the wayside, wet ink signatures became the standard-bearer of authenticity.

Last week the Appellate Division (First Department) confronted the formality of signatures regarding a settlement. The court sought to answer a question: If lawyers agree to a settlement via our now ubiquitous email, but use a standard signature block instead of retyping their names, is a settlement valid?

In other words, what kind of seals and red ribbons do we now need?

While at first blush this looks like a small esoteric question of law regarding the informality of email and the courts’ respect for stipulations, it has the potential to carry over to a thousand different aspects of law as now practiced.

The fact pattern of The Matter of Philidelphia Insurance v. Kendall is not too complicated (if you practice personal injury law here in New York), but for the others a short background: The liability insurance you buy for your car is not for your injuries, but for the injuries of others in a collision. Thus, if the other person has only a $25,000 policy, you might be shit out of luck — a technical legal term — if you lost your leg. That’s why you buy Supplementary Uninsured/Underinsured Motorist (SUM) insurance. That part is for you. If the other driver has only $25K in insurance, and you have $1M, you can turn to your own insurer for the $975K difference.

And that’s what happened here. Kendall was clobbered in a collision. The motorcycle that hit her had only the 25K minimum but she had $1M in SUM. She collected the $25K from the other driver and proceeded to arbitration against her own insurer.

According to the decision, this funky fact-pattern popped up regarding the arbitrator’s decision and settlement with the arbitrator awarding the maximum 975K. But Kendall’s lawyer settled for only 400K because he hadn’t see the decision yet:

The arbitrator rendered her decision on September 16, 2019, awarding Kendall $975,000. The same day, the decision was emailed to Kendall’s counsel and faxed to Philadelphia’s counsel. However, neither counsel received the decision and they continued to negotiate. On September 19, 2019, the parties reached an agreement to settle the dispute for $400,000.

How did they shake hands on this deal? Via email:

On that day [Kendall’s] counsel emailed [Philadelphia’s] counsel: “Confirmed -we are settled for 400K.” Below this appeared “Sincerely,” followed by counsel’s name and contact information. Shortly thereafter, [Philadelphia’s] counsel emailed in reply, attaching a general release, styled a “Release and Trust Agreement,” and saying, “Get it signed quickly before any decision comes in, wouldn’t want your client reneging.” [Kendall’s] counsel answered, “Thank you. Will try to get her in asap.” This email concluded with the same valediction, name, and contact information as had [Kendall’s] counsel’s earlier email.

The lawyer for the injured Kendall then learned of the $975K decision and wanted to go back on the $400K agreement, arguing that it was’t “subscribed” as per CPLR 2104 by retyping his name in the email in addition to his prepopulated contact information block. 

So, is the email agreement “in writing” as required by statute? If it sounds like a boring one-off kinda issue, you are not thinking of all those emails you send on a daily basis and how those might be viewed by a court.

Now previously, our Court of Appeals had held that a preprogrammed name on a fax transmission did not fulfill the subscription requirement. So email should be the same, right? (Parma Tile Mosaic & Marble Co. v Estate of Short)

The times, they are a changin’. A mid-level appeals court has now held that the old fax decision from New York’s top court is not controlling as the practice of law has changed:

The Parma court wrote in a different era, when paper records were still an important modality, maybe the most important modality, of recording information in law and business. Since that time, the electronic storage of records has become the norm, email has become ubiquitous, and statutes allowing for electronic signatures have become widespread. For these reasons, and those that follow, we find that Parma is not controlling.

While this very same court held in 2013 that “an email in which a party’s or its attorney’s name is prepopulated in the email is not sufficiently subscribed for purposes of CPLR 2104” it has now reversed itself and said “wet ink” signatures are not needed, nor is any retyped signature:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.

In fact, even the signature block doesn’t appear to be needed — it must only be sent from the lawyer’s account, forming a rebuttable presumption that the lawyer sent it:

We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature.

But wait, there’s more: It has been customary over the years for defendants and insurance companies to create ever more complex general releases and settlement agreements. Back in the day, the simple Blumberg form was the gold standard, until those that bill by the hour figured out there may be a bit more gold to be mined by creating ever more complex forms.

The First Department, however, found that the simple email was binding when the sole issue was the amount of the settlement. The digital handshake was good enough, and the formal release wasn’t particularly relevant as it is merely a ministerial condition:

The Release and Trust Agreement was to be further documentation of the binding agreement constituted by the parties’ counsel’s emails agreeing to settle respondent’s claim for $400,000, rather than something on which that binding agreement was contingent. The material term of the parties’ agreement to settle respondent’s claim being the sum of money that petitioner would pay respondent, respondent’s execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a].

So, your emailed agreements will be held up the same as if they had a fancy wax seal and a red ribbon. And probably so too with any other assertion that you make. And those complex general releases that defendants like to waste time with may well be meaningless to a court.

Don’t think twice before hitting send. Think it though three times. Because “send” is your signature.

 

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 12th, 2019

A Feres Doctrine Repeal? Not so Fast…(Updated)

Lt. Rudolph Feres, for whom the Feres doctrine was named, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

The rule is as old as government itself: You can’t sue the King.

The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.

Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

And so, as I took the train home yesterday and read in the NY Times that a portion of the Feres Doctrine was to be repealed for medical malpractice under the pending National Defense Authorization Act, I was elated for those that had been victimized twice.

But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.

If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.

And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.

The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.

Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.

And more — the legal fee is capped at 20%.

The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.

A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.

The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.

So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?

Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?

Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.

It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.

See also:

Addendum: The following press release came from Rep. Jackie Speier, who spearheaded the campaign to fix the Feres Doctrine. She asserts that there will be congressional oversight of the rule making and that the potential recovery is “unlimited.” The devil, it is often said, is in the details:

December 10, 2019  Press Release 

Washington, D.C.- Last night, the House and Senate Armed Services Committees released a conference report for the fiscal year 2020 National Defense Authorization Act (NDAA) that included an administrative claims process that will compensate servicemembers harmed by medical malpractice in military facilities. As Chair of the House Armed Services Military Personnel Subcommittee, Congresswoman Jackie Speier (D-CA) has led the campaign to achieve justice for victims of military medical malpractice over the last year.

“Today will be remembered as a landmark day in the fight for justice for servicemembers and their families,” Rep. Speier said. “After nearly 70 years of the FeresDoctrine, servicemembers and their families finally have a path forward in seeking compensation for medical malpractice committed by military health care providers, and the Defense Department will have to take their claims seriously. This victory belongs to the hundreds if not thousands of injured servicemembers and their loved ones who have spoken out about this injustice and forced Congress to listen. In particular, today belongs to Army Green Beret and SFC Richard Stayskal, who, after receiving a terminal cancer diagnosis that stemmed from military medical malpractice, forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to DC and heroic advocacy.”

Though this provision will not create an exemption to the Feres doctrine nor will it allow servicemembers to sue the Department of Defense (DOD) for medical malpractice in federal court, it will allow servicemembers to receive uncapped monetary compensation under the Military Claims Act for malpractice. It also forces the DOD to document and respond to these cases. The legislation also contains provisions to enable congressional oversight of DOD’s rulemaking and administration of the claims process so that it can be improved in future years.

“Though today’s conference report was an accomplishment in many respects, this fix is far from perfect,” Rep. Speier added. “Servicemembers – like their families, federal civilian employees, and even prisoners – who suffer from malpractice deserve their day in federal court. And I have serious concerns about allowing the DOD to run the entire claims process as they will write the rules, investigate malpractice incidents, and adjudicate claims. But it was important that we seize this unique political moment, created by the hard work of Richard Stayskal and other victims and their loves ones, as well as the availability of funds to pay for claims under Congressional budget rules. Rest assured that I will closely oversee the implementation of these changes and continue to work to address the myriad injustices that remain due to the Feres doctrine.”

Rep. Speier chaired a Military Personnel Subcommittee hearing on the impact of the Feres doctrine and prospects for reform after meeting with SFC Stayskal in late 2018. Subsequently, she introduced H.R. 2422, the SFC Richard Stayskal Military Medical Accountability Act of 2019, which passed as part of the House’s NDAA bill.

 

June 19th, 2019

Are Personal Injury Cases Plummeting?

Harvard Law introduced today something called the Caselaw Access Project. All they did was take 360 years worth of American jurisprudence until 2018 and make it easily searchable by terms. Then you can see trends.

How extensive is the CAP web site?

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

Just that. Pretty cool, right?

Given all the noise that gets made in the press about personal injury cases I decided to pop the phrase “personal injury” into the search bar to see how much of an impact my little corner of the law is having on the courts.

Two fast observations: First, as you can see from this graph for the years 1900-2019, the number of personal injury cases has been plummeting for the past 20 years:

On the vertical axis to the left is the overall percent of cases in which the term comes up. On the bottom horizontal axis are the years, and you can set whatever years you want in order to find the trends. I used 1900 as my start date because I’m a sucker for round numbers. You can noodle with it and pick other years if you like.

When you go to the live site you get more data than mere screen grabs and can fine tune a bit. And for this we find that the peak year was 1996 when the term was mentioned in 3.4% of the cases. And that was at the peak.

Currently, personal injury is mentioned in just 1.9% of cases, a stunning drop of 44% in just 23 years.

You can also, if you like, look at the data in absolute numbers as opposed to percentages. You’ll find a similar drop looking at it that way.

The drop is even more stunning when you use the word negligence (which obviously would be used more often due to a greater variety of circumstances). This time I ran the chart from 1800 until today so that you see an even longer term trend, from 14% to 6.4%, with peak use of the word in 1907:

What are the reasons for the drop? I’ll probably write more on that another day. But safer products, safer cars and safety laws such as mandatory seatbelts are likely to be contributing factors.

I speculated back in 2014 that the rapidly advancing tech that’s being designed for self-driving cars would have that effect, as some of the tech finds its way into “regular” cars. I described how that happens earlier this year in discussing the death of the stick shift, in part due to safety technology.

One more graph for you, this showing how the number of injuries from car collision has also dropped — from its peak also in 1996. This from the National Highway Transportation Board:

Expect a wealth of analysis to come out of this new website as policy wonks look more intensely as to the trends in our courts. It would be easy to spend hours looking at this stuff. I spent only 30 minutes, but will return.

Quick pro tip for law students: Don’t go into personal injury law.

 

April 3rd, 2018

NY’s Top Court Upends Law on Summary Judgment

It’s long been the law in ¾ of New York that, in order to win summary judgment in a personal injury case, plaintiffs also had to show that they weren’t themselves also negligent.

That three-fourths fraction exists because, as I noted back in 2010, there was a split in the four New York appellate departments regarding this issue.

That split case law is now history, courtesy of (naturally) a 4-3 decision today in New York’s Court of Appeals in Rodriguez v. City of New York.

The Court outlined the issue succinctly:

Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

Let’s take a garden variety matter of an individual crossing in the crosswalk, with the light in her favor. She gets hit by a car making a turn, whose driver failed to yield the right of way to the pedestrian.

Assuming that there is no question that she had the light, and was in the crosswalk, and was injured as a result of the collision, most people would have thought she could remove this issue from a trial and have the court determine the issue of the driver’s negligence as a matter of law.

But that wasn’t the case in New York, unless the pedestrian also proved that she was paying attention and didn’t do anything wrong. Some of our courts would deny the motion based on the issue of potential comparative fault, giving the driver a windfall by making his own negligent conduct a jury issue even though it was clear he broke the law and contributed to the injuries.

The Court used the example of a statutory violation being the basis of a motion for summary judgment being denied because, potentially, the plaintiff might also have some culpability:

For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries.

This was the windfall the Court wrote of: Why should the jury get the question of defendant’s negligence if it could be determined as a matter of law?

This is what we now refer to as “old law.” It’s in the dumpster.

The point of the underlying statutes, the court reasoned, was that the issue of comparative negligence was solely to deal with diminishing any potential recovery. It has no bearing on establishing whether a defendant is negligent.

Thus, a typical verdict sheet might have the five questions below, and if any of them can be resolved as a matter of law then that is the proper procedure for a trial court on hearing a motion for summary judgment:

1. Was the defendant negligent?

2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?

3. Was plaintiff negligent?

4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?

5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?

What was the rationale for overturning the prior decision of the court, in Thoma v RonaiThe majority reasoned (and the dissent disputed) that the parties in Thoma didn’t raise the relevant parts of our civil practice law and rules so that they could be analyzed. So be it.

The net result of this decision will, I think, be two-fold:

  1. Plaintiffs that previously had had summary judgment denied will now move to reargue based on the new interpretation of the law, if possible; and
  2. More issues will be resolved prior to trial, leading to more settlements. Because it is uncertainty about how a jury will resolve an issue that most often hinders settlements.

When I wrote about this split in the appellate departments back in 2010, I said:

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

It feels good being able to revisit that issue and see it come out this way.