April 1st, 2020

April Fool’s Day is Hereby Adjourned

It’s with a heavy heart that I feel compelled to indefinitely adjourn April Fool’s Day.

I do so by the power vested in me as April Fool of the Legal Blawgosphere (hereinafter, “April Fool of the Legal Blawgosphere”).

It’s a painful choice, for sure, but that stupid virus (hereinafter “stupid virus”) left me no choice. Let’s face it, if I should become infected and ill — and I most likely will be infected if I’ve not been already — any joke could come back to haunt me. Haha, look what that moron wrote before he went down.

And this would be a really shitty thing to have on one’s stone: “Father, son, husband, brother and fool.” And not the jester kind of Fool. We’re talking fool with a little f.

This would, naturally, be followed by a social media uproar over use of “moron” and “fool” and accusations of ableism and then where the hell would I be? Still under the stone.

Regular readers know I have a bit of affection for this auspicious day, and I exercise my awesome power as April Fool of the Legal Blawgosphere (hereinafter, “April Fool of the Legal Blawgosphere”) to adjourn only with extreme reluctance. The mantle of responsibility weighs heavy while wearing the jester’s hat. Irregular readers should eat more fiber.

And yes, I know I repeated that hereinafter, “April Fool of the Legal Blawgosphere” joke twice but this is a short piece, and there’s a virus ravaging our communities, so suck it up. If I cared more about the moniker I would have come up with a catchy acronym. But I don’t. So I didn’t.

I think I digressed.

This April Fool’s saga started 12 years ago when, as a newbie law blogger, I spun the tale of three justices of the Supreme Court recusing themselves in a fantasy baseball appeal because they participated in the court’s own fantasy league. They had, after all, a vested interest in the outcome. Two other participating justices, however, refused to recuse. That would be Scalia and Ginsburg, two-thirds of their team “The Three Sopranos” since you insisted on wondering. My point was to demonstrate the lack of firm rules for High Court judicial recusal.

That little blog post got a whole bunch attention, really, because a young, smart, visionary and delightfully mischievous blogger guy named David Lat (now recovering from said stupid virus) ran the piece in Above the Law’s Morning Docket.

I confess to having had great fun both in writing it and deconstructing it, because there was an actual point to the joke. And I remain grateful to Lat for acting as my amplifier as he blasted it to the world.

My April 1 gig as Official White House Law Blogger in 2010 got the most attention when the New York Times got punked. Once again, it was only because of the willingness of other law bloggers who were in on the joke to play along. (Greenfield, Popehat, Orin Kerr @ Volokh, among others).

The New York Times issued its mea culpa a week later via the Pubic Editor.

There have been other April Fool’ Day bits, which you can read here, each with a point to make (or at least an attempt at one) but once you become know for April 1 gags it becomes almost impossible to pull off. And today was not the time to see if I could once again squeeze past that almost.

I thought about doing something with the millions of coronavirus beards being grown around the world by men realizing that, well, shaving isn’t a priority. Or something with Netflix and chilling, chilling and more chilling.

But no. I couldn’t. That stupid virus decided to make my town the first East Coast cluster, and I was dead smack in the middle. Everyone in these parts now knows someone who was sick or is sick. And if you don’t you will. Regardless of which parts you live in.

We stand adjourned. April Fool’s Day will continue on a future date. Without notice, of course.

March 26th, 2020

Nine Teleconference Tips for Lawyers

While the corporate world may have been using teleconferences for awhile it is not part of the day-to-day activities of most practicing lawyers. And certainly not most personal injury lawyers.

But with the courts substantially closed down — no trials and no conferences — lawyers are turning to teleconferences for depositions and virtual court conferences. So we damn well better get used to it fast.

Having now done three depositions this way over these past two weeks and several other teleconferences, I’ve a few short tips:

Try to use a desktop that is hard wired to the internet to cut down speech delays. You don’t want a frozen image or dropped signal.
Invest $50 in an external mic if your built-in isn’t good. If you want to be heard at a deposition or court appearance, having a distracting scratchy sound is not what you want.
Put a light on in front of you so you are not backlit
Use the mute button when not speaking so as not to inadvertently create background noise from typing, coffee cups, etc.
Create a digital background if needed to eliminate clutter behind you (on Zoom, it’s in the settings). You can add whatever you want with a simple drag and drop of a neutral image if you like.
Dress appropriately. Dress shirt and sport jacket for men for a deposition and the equivalent for women. If a court appearance, put on the suit. Because you might think you are only sitting in your kitchen, but you are really sitting in the judge’s courtroom. It’s not about where you are but about where you will be seen.
For a deposition, do a video dry run with your client in the days before. You want your client to be comfortable.
Do a dry run the day before with opposing counsel and the court reporter if there are any first timers. No one wants to be screwing around with technology when we should be focusing on facts and law.
For depositions, make rules beforehand with opposing counsel regarding exhibits. Will they be marked beforehand and exchanged with the parties, or will you screw around with trying to email them to each other or (with some service) place them into a private digital box to be revealed during the testimony. The only real rule is this: Whatever you decide for one side goes equally for the other.

That should be enough to get folks started.

March 24th, 2020

Will Red-Staters Be Hit Hardest by the Virus?

I hate to delve into politics outside my wheelhouse, mostly on the fear that if I start I may never stop. But New York’s civil courts have ground to a virtual halt due to COVID-19, with all conferences and legal filings halted except for emergencies.

And so I venture for a moment into a different space as I watched Trump be dismissive of the virus for at least 51 days — from a January 22nd interview (“It’s going to be just fine…We have it totally under control” until his March 13 declaration of emergency. And now prematurely discussing people going back to work against the advice of medical professionals.

With this backdrop I think that the folks most likely to be affected are going to be Trump supporters and red-staters. These are the reasons:

First, there are higher percentages of smokers in red states making them more susceptible to the consequences of viral infection;

Second, this population is more likely to believe (at the outset) that the virus is a hoax and, therefore, not take precautions;

Third, this population is less likely to take the advice of government officials, as Trump has talked incessantly about the Deep State out to get him.

Fourth, red states are generally poorer and, therefore, have fewer people with health insurance;

Fifth, red staters have generally lower education levels and are less likely to pay attention to the warnings;

Sixth, with the virus first hitting (predictably) urban areas like Seattle and New York City, many folks will be delayed in thinking that this could really affect them.

Now toss into the mix a few other factors: Coal mining country is chock full of people with lung disease. A particular problem for parts of Pennyslvnia, Ohio, West Virginian, Kentucky and Indiana (among others).

And the Bible Belt could be hit also due to the communal nature of religious congregations. The ultra orthodox Hasidic community has already seen this. The virus, of course, knows no religion. It merely spreads with opportunity.

For many, many people the reality of the virus won’t truly hit home until someone they know has been affected. (In an odd way, this is similar to the advance of gay rights — most people were opposed until they realized that people close to them were gay.)

I would, it should go without saying, hope to be very wrong and that the virus vanishes with people social distancing themselves from each other. This is one of those situations where there is no us/them divide, as anyone can infect anyone else. But humans are social animals, and we gather for dinners, a beer, a religious observance or a ball game among a thousand other scenarios.

Putting together a group that both takes the situation the lightest (generally red-staters), and those most at risk for health reasons (again, generally red-staters) may prove to be a very deadly combination. For all of us.

And on the political front — and this is my only political comment — betrayal is a hell of a thing.

March 16th, 2020

Coronavirus and Statutes of Limitations

“STAY HOME” was what Gov. Andrew Cuomo publicly tweeted Sunday morning at 9:07. And the Department of Health sent a message, which could’t be any more blunt in the Stay Home message:

** New #COVID19 guidance for New York City ** Everyone in NYC should act as if they have been exposed to coronavirus. That means monitoring your health closely and staying home from work if you are sick. New Yorkers who are not sick should also stay home as much as possible.This demand by the Governor, and the concurrent closing down of most of society, brings special legal issues.

I certainly can’t address all of the legal issues here. But I’ll bite off one: What happens to time limitations in potential lawsuits? There are things that must be done by a certain date or legal rights are lost.

Sure, the courts can adjourn conferences, stop holding trials, start conferencing cases via phone and video conferencing, extend time to perfect appeals. But what of the victims who have not yet found their way to the lawyers’ offices?

Consider this: The Notice of Claim requirement that are a mandatory prerequisite to bringing a suit against a municipality is just 90 days. And then suit must be started within 15 months from the date of an incident.

How does the lawyer meet with the potential client and do an investigation to see if representation is warranted? What of the injured people who simply say to themselves, unaware of the 90-day rule, that they will wait a few months until the crisis is over?

And the problem is not, by any means, restricted to municipal actions (for general negligence, thee years in New York).

What of the generally non-litigious people who don’t want to bring suits, and have been waiting and waiting and waiting for the injuries to get better but they didn’t? And are now compelled, on the eve of a statute of limitations running, to make that lawyer visit that they hoped was unnecessary, but can’t

Are lawyers supposed to just sign cases up willy-nilly by phone to protect people who might have a suit? And then be saddled with such clients when they find out later that no viable claim exists? That cannot possibly be good for anyone.

How does an investigator interview people in person and get a signed statement?

How does something get notarized, in the absence of a personal visit?

How does a process server serve papers when folks are reluctant to meet strangers?

After September 11th, the state faced similar problems, albeit on a more sudden and dramatic scale.

And the answer was an Executive Order from Gov. George Pataki extending all kinds of time limitations.

With the Governor now asking everyone to state home, the time to issue such orders to deal with the statutes of limitations is now.

March 13th, 2020

Will Coronavirus Push New York’s Courts Out of the Colonial Era? (Updated x3)

Chief Administrative Judge Lawrence Marks — Chief Administrative Judge Lawrence K. Marks of the Courts of New York State delivers testimony during a joint legislative budget hearing on Thursday, Feb. 4, 2016, in Albany, N.Y. (Photo/Hans Pennink)

[Huge update at the end as NY suspends new jury trials, both civil and criminal]

New York’s Chief Administrative Judge, Lawrence K. Marks, issued a memo late Thursday to the judicial system about procedures to deal with COVID-19. Short story, the courts are still open and there is no suspension of jury trials. Yet.

But there’s a tantalizing morsel I want to discuss.

There are the six paragraphs, of which I will deal only with the 5th. Because it deals with procedures to reduce attorney traffic inside the courts:

(1) Intro; (2) Restricting access to those with COVID-19; (3) Procedures to deal with those that self-identify as infected, (4) Protocol for dealing with the issue; (5) limiting unnecessary traffic, especially to high-traffic courtrooms; and (6) Conclusion.

I deal with #5 since this was the subject of my post last week (Coronavirus, Crisis and the Courts). That called for the institution of specific procedures to limit the number of lawyers in civil cases who even need to come to court.

I won’t regurgitate the whole thing, but I first wrote about it back in 2008 when I estimated that one Brooklyn courtroom wastes $10M in lawyer time every year. The problem is that most stuff is agreed upon by the attorneys in the hallways. And that can be done just as easily by phone and email.

Judge Marks seems to now be pushing New York in the direction of limiting those unnecessary conferences, particularly with our “high volume parts– which bring together large numbers of people in courtrooms.” (A “part”, for you out-of-towners, is local lingo for where the judge sits.)

In addition to that part of the memo directing courts to liberally extend deadlines and grant adjournments — which we would expect — there is the directive to judges to “consider use of remote appearances (video and telephonic) to the fullest extent permitted by law.”

I suspect that some lawyers outside New York are quizzically scratching their heads on this. But, it’s true, the Empire State still operates much the way we did in colonial times: Show your ass in the courtroom. Even if it’s for a 60-second conference where there’s nothing to decide and so-sorry that you just spent the whole morning for those magical 60 seconds. This is, of course, mostly a downstate issue and short appearances and overwhelmed courtrooms are due to the high volume of cases.

Which was the point of my original post 12 years ago.

Back to Judge Marks. He writes that he is “reassessing” the procedures for these high-volume parts, and that means this memo is not a final product by any stretch of the imagination.

With the court system now specifically looking at those parts that waste so much time, and exploring the use of phone (and video!) conferences, New York’s courts may finally be on the road to entering the modern world.

I, for one, will be cheering Judge Marks on.

Update (2 pm): Hot off the presses, Judge Marks has suspended all new jury trials, both criminal and civil if opening statements have not yet been made. Trials in progress shall continue.

All civil Trial Assignment Parts are suspended.

All high traffic (read: NYC) preliminary conference parts shall maximize adjournments and directing appearances by phone or video conferencing. (Video! In New York!)

All appearances in compliance conferences that occur in centralized compliance parts suspended until further notice, with counsel to stipulate to terms or make arguments by phone or video conference.

When appearance is unavoidable, it “shall” be done by phone or Skype.

All motions to be submitted, and if argument needed it shall take place by phone or video.

Update #2 (Sunday, March 15th): All non-essential functions of the courts are postponed.

Update 3: The New York courts now have a page dedicated to coronavirus information and how it affects the operation of the courts.