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)

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 20th. 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, 228 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

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:

Immunity-Removals-COVID Download

April 15th, 2020

It Won’t Happen to Me

When I was a puppy lawyer I learned a truth that’s come up time and again when trying cases: Jurors, for the most part, don’t think that the bad incident would have happened to them.

It doesn’t matter if it’s a car crash or medical malpractice. Somehow, someway, people want to believe they are different. The victim must have somehow been vulnerable or at fault.

And then the same issue popped up with COVID-19.

Before going on to an interview with David Lat on this subject, I want to reinforce something: I’m no different. I’m scheduled to turn 60 next week — I may cancel due to the virus, and stay 59 for another year — and figured that the virus probably wouldn’t make me ill. Despite being in the original east coast containment zone.

Why? I’ve been a distance runner for almost 30 years and run a bunch of marathons and have, I think, a pretty good set of lungs. And healthy lungs are important, we’ve been told, in fighting off the virus.

It was with this mindset that I read this op-ed in the New York Times featuring an interview with Lat, who recently spent six days intubated due to COVID and emerged to tell his story in many forums.

But this particular telling of the story, on the op-ed pages of the New York Times (The One Kind Of Distancing We Can’t Afford) grabbed me differently than others. It was about the way folks wanted to psychologically distance themselves from Lat.

They wanted to be different from him. To prove to themselves that they were not at the same risk.

The op-ed writer, Jennifer Senior, reacted the same way I did — and many of you likely are, after finding two of her doctor/nurse friends saw a 50-year-old woman die from COVID:

I, too, am a 50-year-old woman. As I listened to their stories, I had to stifle the same unlovely impulse. “But did your patients have a pre-existing condition?” I wanted to ask. “Were they fighting cancer, were they smokers, were they already floridly unwell?”

Nobody, but nobody, wants to believe they are at risk. We are all smarter than average.

Ms. Senior sets up the background regarding Lat, writing:

For Exhibit A, look no further than the Twitter account of David Lat, the 44-year-old lawyer, legal recruiter and founding editor of Above The Law, an immensely popular blog. Lat was diagnosed with Covid-19 in mid-March, and he’s tweeted about it ever since, save for the chilling stretch during which he was on a ventilator. When he returned, he posted a thread exploring the reasons some people die from Covid-19 while others suffer not at all.

This part is well known by many, as he first appeared in New York’s legal press and has since made numerous national appearances.

But the reactions of others to him is what really jumped off the page at me, for it went directly to something I’d known for decades about jurors when trying cases, yet never appreciated in myself:

He was suddenly pelted with queries about his own health. People were subtly probing to see whether there was a hidden reason he’d fallen ill.

It appears that Lat’s own friends were acting the same way as many jurors, which is to say, they were acting as humans subconsciously worried about self-preservation. They were looking for the reason that they would not have the same bad luck that Lat had. They were different. They had to be.

Lat went to say:

“Maybe I’m reading too much into things,” he replied, “but I received a number of responses that seemed to latch on excitedly to the mention of my exercise-induced asthma.”

And yet, he was exceptionally active, likely far, far more so than the average person. By orders of magnitude:

That he ran two New York City Marathons with this asthma in his 30s — and did high-intensity interval training three times a week until he fell ill — didn’t move a number of his followers. (The bluntest response: “Asthma is still asthma, waiting to knock you out, and any severe respiratory illness reveals the fundamental weakness of your lungs.”) Nor did the fact that Lat was healthy in every respect: normal blood pressure, normal weight, didn’t smoke, barely drank.

We all want to be different than that other poor fellow who was hit by the car or the victim of malpractice. We want it badly. But we aren’t.

There probably isn’t much we can do about that, as I think this is fundamental to human nature, and something I learned about others many years back.

But the least we can do is recognize it in ourselves.