June 3rd, 2020

Why Can’t New York Be Like Alabama?

If only New York was like Alabama. I can almost see your jaw drop and eyes pop.

But New York has a problem and Alabama has a solution. And we should be all over it.

The problem is bad faith by insurance companies, refusing to settle matters because no one holds their feet to the fire to act in good faith. And that causes a backlog in the courthouse. Under normal circumstances.

Those normal circumstances mean, for example, that if a driver has a $100K policy, and there are $400K in damages, the insurance carrier may simply string the case along.

Why not? What’s their downside? The plaintiff, after all, may be desperate and the longer the desperation goes on the better for the insurance company.

And second, if the carriers figure it will cost the plaintiff $20K to try the case, they see little reason to pony up a $100K policy. If a plaintiff fails to take $80K, for example, and spends $20K trying the case, they could “win” with a jury verdict but be worse off than the lower settlement. So they demand a gift.

And if you take a verdict in excess of the policy limit, you’re generally stuck with the policy plus a judgment to collect the rest. But that judgement is against someone that likely can’t pay (which is why they had a small policy to start with).

Last year I laid out the cockamamie way that New York handles bad faith. Briefly, you have to first spend all the money, then take an excess verdict and then get that person you just sued — who owes your client the balance of the funds — to hire you to sue his own carrier for bad faith. Maybe they will, maybe they won’t, maybe they vanish. And the second lawsuit will tack on a few more years.

Now add in the COVID-19 pandemic. Trials have stopped for months on end (and maybe longer). And a trial is the only way to pressure an insurance company. There is now a shit ton of financially strapped, unemployed people, and no pressure at all on the insurance companies to dispose of cases since no juries are being selected any time soon. The problem of an already-overloaded judicial system is now exacerbated.

Just the other day I wrote how a judge had to order virtual depositions go forward due to intransigence by the defense. The defendants tried to use the pandemic as a tactic to stall, stall, stall the case until a vaccine is available or the pandemic has otherwise abated. Delaying justice and thereby denying it.

Now we turn to Alabama. Like many states, Alabama has an actual bad faith statute. And judges are not amused when carriers play games. Because judges don’t want to see their dockets clogged with cases that can be resolved.

Enter, stage deep south, Circuit Judge Karen Hall of Madison County. I know nothing at all about Judge Hall or her politics, age, race, religion, favorite ball team or anything else. What I do know is that she was not amused at Allstate for playing games in her courtroom. And I know this because she gave an award of bad faith damages well in excess of what the plaintiff actually asked for. (Thank you Kevin Grennan for forwarding me this decision.)

Allstate, you may not be surprised to learn given its presence here in this post, did what The Good Hands People apparently likes to do — stall and make the plaintiff spend money because how dare they bring a lawsuit against it.

There was just a $75K underinsured policy in Harbin v. Stewart, so the plaintiff was proceeding against his own insurer for that underinsured coverage that he paid for. Judge Hall ordered them to mediation with all sides to have someone present with full authority to settle. This was, as Judge Hall noted, a “significant damages case” with over $234K in medical bills alone.

The plaintiff traveled to the mediation along with his wife and lawyer ready to talk. The Allstate adjuster decided to stay home. Worse, while defense counsel arrived, he had no authority to settle. He offered nothing. Nada. Bupkus. The judge was not amused at Allstate’s violation of her order.

So they went to trial. Allstate didn’t even contest liability. In other words, The Good Hands People knew they would have to pay something, there were $234K in medical bills after all, and it still offered zip-a-dee-doo-da.

The jury came back with $690K.

Now this is where New York’s legislature should take note, because some problems in Alabama (and elsewhere) are no different than here. Judge Hall noted that the rules were designed for the just, speedy an inexpensive determination of actions. That same theory, though the actual language may differ among states, permeates every courthouse and judicial system. In essence, don’t waste our time, or that of our citizens who must sit jury duty.

After that $690K verdict, plaintiff’s counsel asked for $5K in costs and $52K in legal fees in addition to the $75K policy.

Nope. Not as per Judge Hall. No way. She would not do that.

Two days ago she walloped them, instead, with a $620K sanction. In doing so she noted that Allstate was a repeat offender. And she needed some way to make its conduct stop.

The requested relief, the court wrote, was “inadequate to accomplish the dual purposes of addressing the burden placed on the Plaintiff and addressing the overarching effects of Allstate’s conduct upon the Courts of Alabama, civil litigants, witnesses, and Alabama citizens who must serve on juries every time Allstate behaves in this fashion.”

You can rest assured that Allstate will not try that trick in her courtroom again.

Now it’s New York’s turn. When will our Legislature give us a bad faith law with actual teeth? We are about to see the Mother of All Backlogs in our court due to the virus. It will be exacerbated by insurance company delays. And if/when we get to trial, injured New Yorkers are left looking at carriers offering 50-70 cents on the dollar in some cases, even when the liability is clear.

How will New York deal with the effects of deliberate insurance company delays upon the courts, civil litigants, witnesses, and New York citizens who must serve on juries every time an insurer behaves in this fashion?

Adding insult to injury, New York is likely to see a massive financial strain due to the virus. Albany may well be increasing taxes and decreasing services to balance the budget. There’s little question the justice system will take a further beating on top of what is going on now.

So dear Legislators, please finally pass a bad faith law. With real teeth. Let the judges start enforcing it.

You have the power to make the backlog disappear, stop bad faith and bring long-awaited justice to those that seek it. And help save the State some money in the process.

The case is here: Harbin v. Stewart

 

June 1st, 2020

New York Judge Orders Virtual Depositions Due to COVID-19 (Updated x3)

With New York’s courts shut down for almost everything but emergencies, litigation has mostly ground to a halt unless the parties agree to keep going. No trials and no conferences.

A great many lawyers, myself included, have steamed forward with virtual depositions. But what if one of the sides — the one that most benefits from delay — simply tells you to stuff it? They ain’t going forward.

Motion practice to force recalcitrant litigants forward has just started.

We have now, I believe, the first judicial opinion in the state on that — dealing specifically with objections to going forward due to COVID-19.

Last week, Justice Robert David Kalish, sitting in New York County, ordered the parties to proceed to depositions “by remote means” in a Labor Law matter. Count on this decision to be cited widely in the months to come.

Defendants had tried to stall the case, arguing that they were willing to go forward, but that “depositions should occur in the traditional, in-person format, after social distancing restrictions related to the current COVID-19 pandemic have been lifted.”

As the Court noted in rejecting the attempt to stall, “there is no prediction for when all of the pandemic restrictions will be lifted.”

There’s a risk to making flagrantly bad arguments, and that is a judge might call you out on it, and establish a precedent that you are not happy with. Such was the case here with counsel for defendant Time Warner Cable:

While no side claims that it lacks the ability to conduct these depositions by video — and, indeed, during a pre-motion Skype for Business conference, TWC’s counsel noted that he had recently conducted a six-hour deposition by remote means in another case — TWC’s counsel argues that the depositions of the Remote Witnesses should be taken in-person because he himself [and the witnesses] “do not feel comfortable participating in a deposition conducted by videoconference technology.” 

Ouch. Bad argument amplified by the court.

Defense counsel also tried to stall other discovery as well, saying that no trial can take place anyway due to The Virus.

But Justice Kalish was clear that litigants must adapt to this “new normal” as there is no end in sight for the pandemic:

This Court disagrees with TWC’s counsel. To delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable. It goes without saying that business as usual is no longer the normal. The legal profession and its clients are currently coming to grips with the “new normal” brought about by the COVID-19 pandemic. Among other things, this “new normal” means that it is no longer safe and practical for depositions to be taken in person, as was the default during the “old normal.” TWC’s counsel suggests that this case should simply be put on hold until the “old normal” returns.

While the Court did not use the phrase “justice delayed is justice denied” it was certainly there in its essence for all to see:

However, as in any case, there is always a concern that a witness may become unavailable to testify for any number of reasons, including illness or death. During a pandemic, this concern is stronger. Moreover, it remains uncertain how soon the “old normal” will return— if it ever does.

Finally, the court kicks defense counsel a bit by saying, if you really want to sit in the room with your client, go for it. But that doesn’t mean others must take that risk:

Although TWC’s counsel feels that he will be prejudiced by not being able to physically sit next to the Remote Witnesses during their depositions, this order does not prohibit him from doing so. To the extent that the law and social distancing guidance allow, TWC’s counsel (or a co-counsel of his choosing) may be in the same room sitting next to these Remote Witnesses while Plaintiff’s counsel appears by remote means.

There is precedent for doing depositions remotely, but it’s always been on a case by case basis based upon “undue hardship.” So, for example, if an individual was injured in New York and returned home to a foreign country, but could not return for deposition for visa reasons, a court would call that an “undue hardship.” People are not immune from their own negligence, after all, simply because they were “lucky” enough to hurt a foreigner.

But this decision takes the pandemic and uses it broadly. This scene is playing out all over the state, thousands of times over. To the extent it is cited and relied upon by others (as I think it will) it affects every case that is trying to move forward.

It should be noted that not all defendants have conducted themselves this way. Many depositions have gone forward with the agreement of counsel.

But those that see to use the pandemic to gain a litigation advantage are now on notice: If the rest of the judiciary follows Justice Kalish, it won’t end well.

The case is Johnson v. Time Warner Cable.

Johnson-v.-Time-WarnerDownload

Update: Moments after publication a friend alerted me of a decision this morning on virtual depositions from Nassau county (Justice McCormack). In this real estate dispute (return of downpayment on a house) the matter of re-deposing the plaintiffs was briefed before the courts shut down. The judge ordered depositions to go forward and, obviously anticipating a coming issue with whether depositions should be done virtually, simply decided it before anyone could yelp:

The depositions shall take place via Skype, Zoom or other electronic means, unless all parties and counsel agree to face-to-face depositions with the appropriate social distancing. [emphasis in original]

The case is here: McDonald v. Pantony

Update #2: In Albany county, Justice Christopher P. Baker ordered on June 2, 2020 that the deposition of a doctor in a medical malpractice case must go forward remotely.

Interpreting the Executive Orders of Gov. Cuomo, which stated that a court may not compel “the personal attendance” of physicians from facilities that treat COVID-19, he wrote that this means they should be done remotely. In other words, the executive order was to halt the potential spread of the virus, not to delay lawsuits against doctors.

The doctor, of course, has every right to have his attorney physically present if the two so desire, but this does not mean that opposing counsel or the court reporter need to be in the same room.

The case is Melkonian v. Albany Medical Center.

Update #3 In Westchester County, Justice Joan Lefkowitz wrote a comprehensive decision that, as with the above cases, mandated that depositions be held virtually. Both Johnson and Macdonald, linked above, were cited in addition to others. .

The case is Chase-Morris v. Tubby.

 

May 26th, 2020

Overlawyered Bids Adieu

Walter Olson‘s Overlaywered has been the granddaddy of the legal blogosphere. He was the first one out there, as Bob Ambrogi notes, and continued on for almost 21 years. Twenty. One. Years. For a blog.

And now the site is saying farewell, as Olson, the site’s creator and editor, moves on to other projects. May 31st is the last day.

Every so often I would write about the site or its editor. Given that the site’s political view is to “chronicle the high cost of our legal system” you would rightfully guess that I don’t often share the same perspective.

Indeed, if political views were quantifiable, and you stuck me and Olson in a room together and demanded we go though a political checklist devoid of shades of gray, you might find we disagree with each other 75% of the time. Which means, of course, that we would agree 25% of the time. We might dislike each others points on personal injury suits but be best buddies when it came to free speech or same sex marriage.

Why would anyone pick a personal fight with another if that person would one day be an ally? Olson knew that. I knew that. And so, I’ve always enjoyed his site even when disagreeing with a policy issue.

Waaaay, back in 2007, Olson added this newbie personal injury law blogger to his blogroll — blogrolls were a thing back then when you were looking for other worthy sites — and I was stunned. I wrote (Overlawyered Adds Personal Injury Attorney To Blogroll):

When pigs fly, I hear you say.

Would the oldest legal blog in America — dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits — actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort “reformers” to task every so often? One who is a  guest contributor at Overlawyered’s arch nemesis, TortDeform? Well, yes. They would.

When Overlawyered turned 10 in 2009, I once again celebrated him. Not because I agreed with everything he did, but because of the way he did it:

Another lesson is that he has never once made a personal attack, despite all my criticisms. Which is also something that every legal battle should embrace. Respond to the message, not the messenger. Judges hate personal attacks.

And another lesson: Admit mistakes when they happen. You can’t be constantly writing in the blogosphere, often quickly and with little editing, and not make mistakes. At his sister site, Point of Law, he showed the way mistakes are rectified.

And so, a tip of the hat today to Walter Olson. Not just for figuring out this blogging thing faster than any one else, but for doing it with class and style.

And in 2012 I celebrated the then-vibrant legal blogosphere where people would butt heads on various policy issues — subsequently minimized by the rise of Twitter — with a big nod to Olson and his site at the end of my post (Twittering with the Enemy):

Now the point I wanted to make — I told you I would get here: When I was just a baby blogger, some six years ago, I was irritated by some point or article that Walter Olson noted at Overlawyered and wrote a response. And Olson proceeded to give me the best damn lesson in blogging that I ever received: He amended his post to say, and for an opposing view, see Turkewitz. WTF?

“The enemy” had just given me link juice and readers. It took just a heartbeat to fully comprehend the nature of the blogosphere. We are not islands unto ourselves, but this is an ongoing conversation. Nor is this a conversation to be had solely among those with whom we agree. What good is that?

Unlike many politicians (and arguing spouses) that simply talk past each other, barely even acknowledging the position of the other, Olson engaged. And with less than a year under my belt, he then added me to his blogroll 

I’ve taken some crap over the years from other personal injury lawyers over my lauding of Olson and his site. But it was the way he did things that was important to me.

It always reminded of some of the best defense lawyers I knew. They would litigate cases based on facts and evidence and never, ever on the personal conduct of counsel. Why? Because one day you might have to have a conversation about settlement. Or an adjournment for a pressing reason. Those conversations could be started by either side.

These are the people that you would share a beer with to see if you could hash out common ground that might benefit your client.

But if you piss all over the other side on personal stuff, it makes it impossible to do your job, regardless of whether that job is advocating for a client or advocating for a political point of view.

He was (and still is) a great read not only for his focus on policy issues as opposed to personal combat, but for his humor in doing so.

Elsewhere:

 

April 15th, 2020

It Won’t Happen to Me

David Lat, via ABC News

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.