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.
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.
To quickly review what a SLAPP suit (strategic lawsuit against public participation) is, it’s a meritless lawsuit designed to shut someone up by foisting litigation upon them. This is generally done with frivolous defamation claims.
When such suits are newsworthy, it’s usually because someone high profile like Donald Trump is involved, even when he doesn’t have a leg to stand on. One example (and there are many) is the $500M suit he brought against Univision’s President for comparing him to homicidal racist Dylan Roof, which had been presented as a clear opinion.
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
But that’s the high-profile stuff. Most you won’t hear about, either because the people are not Page Sixers or because the threat was successful. You don’t really read about the butcher, baker or candlestick maker being threatened for bad Yelp or Trip Advisor reviews. But it happens.
I’ve been down that road twice with this blog, once being sued by Joseph Rakofsky when he sued the internet. And a second time by orthopedist Michael Katz after I reported that a judge repeatedly calling him a liar from the bench when he appeared as an expert.
Both times the suits were shot down by judges in the pleadings stages, but New York’s lower courts seem to have a great reluctance to sanction such stupidity, which would have gone a long way toward helping cut down these kinds of actions.
With that history out of the way…
Now the Legislature has, at long last, acted. Previously it was only the Democratically controlled Assembly passing bills, with the Senate (in Republican hands or very closely divided for many years) failing to follow. I never figured out why that reluctance was there since free speech is a bipartisan issue.
With the leadership now of Senate Majority Leader Andrea Stewart-Cousins and Assembly Leader Carl Heastie a bill has been passed. This came with the efforts of Assembly sponsor Helene Weinstein and Senate sponsor Brad Hoylman.
First, it requires legal fees to be paid if the suit is frivolous. And frivolous is defined the same way it is in New York’s court rules, except now it will be statutory: It will be deemed frivolous if “the action involving public petition and participation was commenced or continued without substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.”
What is public petition and participation? The definition is quite broad. It fills that requirement if it’s regarding “(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”
This should cover not only the high-profile crap from celebrities threatening to rain a shitstorm of lawyers down on your head if you don’t take down that post calling them weenies, but also the humble restaurant review that was less than generous.
What is a claim? Not a threat, apparently, but it “includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.”
And what is “public interest? Glad you asked: “Public interest shall be construed broadly, and shall mean any subject other than a purely private matter,” by showing that “the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.”
And it gets heard quickly (by New York standards), as, “The court shall grant preference in the hearing of such motion.”
Finally on the bill, the matter is stayed pending the resolution of the motion. The court can, if it so chooses, order “specified” and “limited” discovery if the plaintiff asserts certain specific discovery is needed to show the motion isn’t frivolous.
Governor Cuomo should sign this bill. There is no colorable reason to protect frivolous suits that are designed to quash the First Amendment rights of the citizenry.
Is there a bug lurking somewhere that might throw a wrench into all this? Yeah.
There’s an open question as to whether federal courts will apply state anti-SLAPP laws. Many other states already have them.
The federal Courts of Appeals are split on this issue and one day it may come before the Supremes. Just recently, in a matter involving television personality Joy Reid, the Second Circuit said state laws did not apply. But the Ninth Circuit says they do.
Congress, of course, can resolve this problem with a federal anti-SLAPP statute. The only ones who would oppose it would be vexatious litigants.
In the meantime, you should expect New York litigants stretching for any kind of federal angle to get into federal court and avoid New York’s new anti-SLAPP legislation. Assuming, of course, that Gov. Cuomo signs it.
John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.
Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.
John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”
I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:
Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George… ———— IN CONGRESS, JULY 4, 1776 The unanimous Declaration of the thirteen united States of America
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
It’s become almost reflexive for many people these days, that if a person on one political team says one thing then you must oppose it if you’re on the other. But not just oppose them; demonize them.
It is, of course, a godawful strategy for many reasons, two of which I address here. One political and the other with the law.
As some know, there is a conservative group known as the Lincoln Project that has been skewering Donald Trump up, down and sideways for being ignorant, narcissistic, dishonest, sociopathic and, basically, not having a shred of human decency. They churn out new 60 second commercials on a daily basis.
Notice that I wrote conservative. They appreciate that Trump doesn’t support their conservative views of government, but rather, that he only cares for himself.
Thus, a traditional “enemy” of the left has an ally: The conservatives of the Lincoln Project. They are supporting Biden because the safety of the nation is more important to them than any particular political issue.
Once upon a time, it’s worth noting, many conservatives that support limited government used to support a woman’s right to choose. Because it was consistent with less restrictive government. That only changed during the Nixon years when it was identified as a wedge issue to appeal to cultural conservatives. You could drive a fleet of very large trucks through that divide between the two branches of the Republican party.
That same divide exist(ed) with marriage equality. The limited-government types were not always aligned with the conservative, religious right, “family” voters.
Things change.
When you see demonization in politics it’s for a reason; Those folks are trying to raise money to get (re)elected and generating anger and hatred is a great way to do it. And it turns out the vote.
But that doesn’t mean you should engage that way. Because it might be counterproductive to far greater goals. For the conservative of the Lincoln Project, it’s the very safety of our democracy and respect for the constitution.
If you’ve spent time demonizing one side, it may be difficult to wrap your arms around the fact that sometimes they are your allies. Or that they might change.
(And we see this often in foreign affairs, where hawks and doves don’t necessarily align with political left/right.)
Now we turn to a parallel in the law.
Keeping personal issues at arm’s length with legal issues serves the lawyer well, particularly in litigation. Because at some point you may find yourself on the same side of an issue. And you will need to talk.
The issue might be something big, like the parties both wanting to settle, or something small like needing an adjournment of a conference so that you can go see your child in her 4th grade play.
Demonization of the other folks doesn’t help your ultimate cause. Your ultimate cause is helping your client, because lawerying is about service, not scoring stupid points.
The Lincoln Project is a model of this. They are looking at the bigger picture.
And if Trump is sent to his political demise, as most of the country now desperately hopes, it is likely that many in the GOP that have been riding along with Trump will go with him.
There’s little doubt that many who now cheer on the Lincoln Project will, if Biden wins, likely oppose many of their positions later on. And that’s OK.
Perhaps, if that happens, a more mature political scene will emerge from the ashes. We will have a greater appreciation for the concept that if we disagree with each other 75% of the time, it means we agree and need each other 25% of the time. So demonizing isn’t helpful.
Hey, one can dream.
One of many commercials from the Lincoln Project: Watch it.
Seriously? You put together a commission to develop a comprehensive vision of the court system of the future, and stacked it with white shoe lawyers? People who don’t actually go to court on a daily or even weekly basis?
Your commission is “charged with examining the enhanced use of technology and online platforms, among other innovations, and making recommendations to improve the delivery and quality of justice services, facilitate access to justice and better equip the New York State court system to keep pace with society’s rapidly evolving changes.”
That concept is great. And long overdue.
But instead of putting on that commission many of the thousands of lawyers working in the trenches, it seems mostly filled with commercial “litigators” who rarely appear in the well.
If I represented WalMart I’d be delighted with your choices. If I represent the person injured when a stack of merchandise crashed down on her head, not so much.
Let’s review some of those firms on your list, shall we? Gibson Dunn. Sullivan & Cromwell. Paul Weiss. Davis Polk. Bracewell. And Greenberg Traurig has two. To the extent any of their lawyers appear in court on a routine basis, whose interests are they representing?
How many verdicts do you think these lawyers have taken in the last 10 years?
You know what’s missing, right? Maybe some criminal defense lawyers who ply the courthouses every day might have a view on “recommendations to improve the delivery and quality of justice services?” Perhaps their experiences of clients repeatedly leaving work for unnecessary conferences might be a wake-up call to some?
How about personal injury? Back in 2008, a lifetime ago it seems, I bitched and moaned in this space about the spectacular way we manage to waste time in court; Specifically, I pointed to the Brooklyn Compliance Part where I calculated we waste about $10 million in legal time every year. Out of just one courtroom.
Maybe a matrimonial lawyer or two to give their view from inside the courtroom well? Perhaps some landlord-tenant? And not from the landlord side.
Don’t you want a wide number of perspectives on the “fairness, efficiency and efficacy” of the system and how it impacts people forced through the courthouse doors?
Half of the commission, at least, should be people with deep experience inside the courthouses. And people who work on the consumer side of the law as opposed to big business. Not just one or two people.
I published, back in 2008, some suggestions (which I renewed March 13th after the virus upended our world) that might help to bring our courts out of its creaky and arthritic condition. Particularly with those “high volume” parts with which the personal injury bar has a sickening amount of experience.
It was a list that anyone who’d spent time in the court, and given it even a modicum of thought, could have come up with. And lord knows we’ve had time to think about it as we sit on those damn benches, sometimes for hours on end.
How many of the lawyers on that list can appreciate the significance of problems that they don’t experience? And to do so on behalf of clients who may need to move those cases, not stall them, as their lives have been upended?
How many of the lawyers on that list have had clients cry in their offices because their world has come apart?
I know that I take somewhat of a risk in calling you out by name. Should I be fortunate to argue before you, and this post somehow makes it to your inbox, you might remember me. And, perhaps, not so fondly.
But this is crazy. If you want to reform our court system — and I know that you do — you need to stock your commission with people that know what it’s like to sit in a room with 100 other lawyers cooling their heals waiting for their 30 seconds at the bench.
I beg, plead, beseech and implore you. Get people on that commission who represent the consumer side of the law, people who walk the halls of our courts on a daily basis.
My short list of ideas from 2008 follows — a list I created before fillible PDFs and online filing made these things easier still:
First: The court must create an electronic template for its compliance orders that the attorneys can use, with required dates for completion and a future conference. That is the easy part;
Second: Every Preliminary Conference should have a provision whereby the attorneys are required to have a conference call at least 20 days before the compliance conference so that they can use that template to create a stipulated order to complete outstanding discovery;
Third: All completed orders can be submitted via email to the court, with blanks left for future court dates and a place for the attorneys to note their availability or unavailability due to conflicts. The court then prints, signs, and files and the lawyers retrieve the order via eLaw.
Fourth: Any unresolved issues must be subject to a court conference call with one of the court attorneys. Scheduling is done by email with a specific time to call in;
Fifth: In the event of a real issue that has defied resolution, or an unreasonable or obstreperous lawyer is involved, a court conference is scheduled;
Sixth:Some lawyers don’t, ahem, get paid to move cases efficiently. They get paid to be unreasonable. Wasted time means more billable hours. The court has to start treating the directives in preliminary conference orders more seriously and be stricter with problematic firms as the judges do in the federal system. This will ultimately force lawyers to work things out, or risk the wrath of the court for being unreasonable or routinely ignoring orders.
Update: Incoming President of the New York State Trial Lawyers Association, Ed Steinberg, has now been placed on the commission:
“I am grateful to Chief Judge DiFiore, Chief Administrative Judge Larry Marks and Deputy Chief Administrative Judge for New York City George Silver for this appointment. I am proud to join with this distinguished group of judges, lawyers like Hank Greenberg, academics and technology experts to ensure that the court of tomorrow adapts to better meet the needs of our clients. I am most excited to hear from the community on their needs in this new era,” said Mr. Steinberg.
