New York Personal Injury Law Blog » Bad Faith, Coronavirus, COVID19, Depositions, Law Practice, Personal Injury


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.

6 thoughts on “A Year of COVID – And 3 Litigation Changes

  1. Wonderful Eric – but we need to have real insurance industry reform here in NY – They want tort reform, but refuse at every turn to open their books to prove to anyone anything about their finances. Most people buy insurance because they have to and/or because they are smart – But this industry is the most clever and insidious with their advertising. They want you to buy their product but then convince you to never use it because if you do -they will either raise your rates or drop you and then make sure every other insurance company knows you have actually used the product you bought and they won’t want your business unless you pay through the nose.

    In the meantime, if you are the injured party, you will not be compensated until they feel like it, no matter how iron clad your case is and if you are the insured who was sued, the lawsuit will hang over your head like the sword of Damocles – I have personally represented both sides of this horrible equation. The injured people looking for their just compensation and the insureds trying to get their insurance company to “adjust” the claim/ settle the lawsuit so they may live life with the clear head they thought they were buying when they paid their premiums.

    It’s time to make human life as important as the things we own. If your property is damaged and you sue and prevail, interest attaches back to the date of the loss. But if you are physically injured by someone’s neglect – because our Court system, even before Covid was jammed up and justice was slow moving, no interest attaches until the day a trier of fact determines the party you sued is responsible – even if that is 10 years later. This simple adjustment to our laws would without a doubt clear out thousands of cases from our court system and most likely prevent thousands from ever being brought as there would be no upside for an insurance company to withhold just compensation for years. I believe now is the time to try to get our legislature to hear and understand this problem.

    The court system needs a huge influx of cash to function properly, and this was before Covid, and is in need of even more money now – so let’s pass serious legislation to help people who need help get the justice they deserve sooner rather than later.

  2. Helene hit the send button a tad before I was going to, so – it’s re-write time!

    Bad Faith legislation is one of those ideas that is better in concept than in execution. It would require additional fact-finding, legal interpretation, and supplementary proceedings to establish entitlement to the relief the statute would provide. In sum, yet more litigation – for which defense counsel would be billing and getting compensated. I do not oppose such legislation, as occasionally there will be a case of such moment so as to justify such relief, but for most plaintiffs in most situations it will be of no avail, and its promise of more work for the system almost insures opposition from those needed to make it effective.

    Pre-Judgment interest is THE way to go, as Helene points out. It is a simple calculation applied as part of or right after the litigation is concluded as a quasi-ministerial act – as straightforward as it now is to tax costs upon entering a Judgment. It is self-executing, requires simple computation, little time and trouble, and no interpretation. It is the ultimate Sword of Damocles, but this time falling automatically upon a defendant found to be legally deficient, rather than hanging over the head of a damaged plaintiff awaiting compensation.

      • As I wrote, there is no problem at all with having them both, but reality sometimes offers up some pretty stark either/or choices. Considering the political difficulties involved in enacting either, IMO our efforts are better spent – and our clients better served – by P-J I.

  3. The neat thing with pre-judgment interest is that a smart insurer can arbitrage it. That is, while the insurer is waiting to pay and incurring interest at the statutory rate, it can in turn invest the money in something more profitable.

    Thus, the longer the delay, the more profit on the margin.