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——

Roth Petition Download

Rochchester-Opposition Download

Roth-Reply Download

Court-Order-Roth-v.-Rochchester Download

February 16th, 2021

A Year of COVID – And 3 Litigation Changes

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.

January 20th, 2021

The Constitutional Crisis That Wasn’t

Over the four years of the chaotic Trump presidency we have seen the words “constitutional crises” bandied about quite often. But never here.

Though personal injury law is the primary focus of this blog — hence the blog name — you have seen me delve into politics every so often, though I try hard to make it relevant to my overall theme.

Nevertheless, I do deviate, and certainly a constitutional crises, if I thought it existed, would make me put up the rare “me to” posting. I resisted.

I’ve always had faith in our electoral system. Regardless of whether Trump was trying to get the Russians, or Chinese, or Ukrainians, or anyone else to do his dirty work for him by involving them in our affairs, I always thought that those that stood by his side would pay a price.

I even thought this during Impeachment 1.0. The almost unanimous support of the GOP to block the investigation into abuse of power, and turn a blind eye to obstruction, and to block witnesses, and to block legislative oversite of the executive branch would one day come at a cost.

I continued to hold that thought when Trump launched dozens of frivolous lawsuits trying to contest the election. Contrary to others, I thought it was good to see. Let the lawsuits get smacked down. Again and again. Hard. That the lawsuits were so awful, and would be rejected universally by judges regardless of who appointed them, was a good thing.

I held that thought even through this year’s January 6th insurrection. A few thousand seditionists trying to block democracy wasn’t going to happen. Even if they blew up the Capitol. This was not, after all, millions of people marching in the streets as we saw during the early days of the Trump administration.

And now, finally, those chickens have come home to roost. In four years the GOP lost the White House, the House of Representatives and the Senate. That is an impressive feat. There may have been a number of different crises, but they weren’t constitutional in nature.

What’s more, the carnage to the GOP due to Trumpism is not complete. We will see investigations, records of Trumpets misconduct will finally be disgorged from the executive branch, people will speak now without fear of the mean tweet, or fear of being fired, books will be written, and supporters of Trumpism will again have their feet held to the fire in two years.

Perhaps it is an undeserving faith in the constitution that I have, but I have it. I still do. The rule of law must hold, for the alternative is anarchy.

January 12th, 2021

Trump Dumped by Social Media – No Problem

Picture via CNET

It took a number of years, but Twitter finally dumped Donald Trump from its platform. So too for Facebook. Too much hate. Too much violence. The insurrection at the Capitol was the final straw.

There have been many commentators saying that this is a problem. My opinion, dumping Trump and any others that spew hatred and foment violence is most assuredly not a problem.

First, we will dispense with the First Amendment argument. There is none. These are private businesses and the First Amendment restricts what the government can do. The principles involved for me dumping a comment or commenter are no different than Big Tech. Big Tech and Small Tech have the same fundamental issue, albeit at different scale.

If you spew hate, or spam, or simply write crap I don’t like, then poof, you’re gone. My blog, my rules. If you don’t like it don’t come here. Same with Big Tech.

This deplatforming of a President, however, struck a nerve with folks, for no reason other than he is a President, at least for a few more days.

Over at Bloomberg, Joe Nocera claims that this is as problem, in that a few people in charge of Big Tech have too much power:

Do you really want Jack Dorsey, Mark Zuckerberg, Tim Cook and Sundar Pichai deciding which speech is acceptable and which is not on their platforms — platforms that are now indistinguishable from the public space. In addition to the problem of having so much power concentrated in so few hands, they are simply not very good at it. Their rules are vague, change constantly and are ignored often if the user is prominent enough.

He comes around to a solution — destroying Section 230 protections:

I have come around to an idea that the right has been clamoring for — and which Trump tried unsuccessfully to get Congress to approve just weeks ago. Eliminate Section 230 of the Communications Decency Act of 1996. That is the provision that shields social media companies from legal liability for the content they publish — or, for that matter, block.

He then admits that this would merely result in the problematic posters such as Trump being neutered anyway. After all, without 230 protections, the platform could conceivably be liable for the misconduct of posters. Nocera just thinks the neutering is a good thing:

In fact, once the social media companies have to assume legal liability — not just for libel, but for inciting violence and so on — they will quickly change their algorithms to block anything remotely problematic. People would still be able to discuss politics, but they wouldn’t be able to hurl anti-Semitic slurs. Presidents and other officials could announce policies, but they wouldn’t be able to spin wild conspiracies.

This is a terrible idea for reasons that I discussed last month — Section 230 is the lifeblood of interactive communications. Without 230, you would never read a negative review of any restaurant, hotel or widget. Negative reviews would be met with threats of litigation and the platform is not in a position to determine the truth/falsity of the review. And with politics, there are a bazillion shades of gray all wrapped up in contextual statements.

Twitter and Facebook are hardly the only platforms Trump has to speak on. He has the presidential podium, after all, and can speak freely from it.

And even when he is gone from office — and he will be gone — Trump could call up any journalists in the world and have conversations with them. Who would say no? Whether you love him or despise him you’d certainly like to get answers to questions. Recorded, of course.

And those remarks would get rebroadcast by others. On Twitter. On Facebook. And in a million newspapers, magazines, news shows, blogs, bulletin boards, etc. And it would happen almost instantaneously.

The only difference is that Twitter/Facebook would not be primary sources, but secondary.

Prof. Eugene Volokh, raises concerns in a New York Times op-ed. He writes that while there are plenty of places to speak, Twitter and Facebook are matchless:

there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches. The public relies on them as matchless mechanisms for unfiltered communication, including politicians’ communications with their constituents.

But this likewise misses that social media is, in very large part, about rebroadcasting the thoughts and opinions of others. If Trump (or any other dumped commenter) says anything worth repeating, it will be repeated on those platforms. By someone. Whether the ideas are rebroadcast widely would be determined merely by their level of interest. The same as me. And you.

A final thought: No one claims it is easy to moderate these platforms, or any forum with a lot of discussion.

It’s hard to do and virtually impossible to come up with any kind of objective criteria. The words themselves often obscure the context, as we will see in the upcoming impeachment debate over Trump directing people to march on the Capitol.

Want to know why it’s hard? Consider this easy example. In one context, Trump says “March on the Capitol!” to an angry group of armed insurrectionists. In another, Mahatma Gandhi says “March to the salt flats to make salt.” One is an implicit call for violence, implicit because Trump has a long history of advocating violence. The other comes from someone with a long history of advocating peace.

Context matters. And it defies artificial intelligence decisions that merely look at the words. Let Big Tech (and Small Tech) do as they please with respect to dumping/keeping posters. Keep government out of it.

(Full disclosure: I own stock in Twitter, having bought it after Trump was sworn in, figuring that four years of free advertising couldn’t hurt.)