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.

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.