March 10th, 2020

Greetings from the Containment Zone

It’s weird seeing your immediate neighborhood at the top of the news in a doom and gloom sorta way. You don’t really want to be trending on social media due to an illness.

It makes me think of a Twighlight Zone opening:

It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man’s fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call the Twilight Zone.

Some of us in New Rochelle, NY have been designated a “Containment Zone,” decreed by Gov. Andrew Cuomo, with the National Guard coming in. The day before he called us a Hot Spot, which I thought was a whole lot sexier and “I’m a Hot Spot” t-shirts would have been great. If not for that whole illness and death thing.

I’m essentially the center of the bulls-eye on the map with the circle around it, so I wanted to…

Oh my god you’re sick!!!

Ugh, who let you in here? And no, but thanks for kinda, sorta, almost askin’. I mean, there’s a good chance I will be in the next year or two, but that’s the same risk for everyone else in the ~~country~~ world. For the sake of our healthcare folks, let’s hope it doesn’t all happen at once.

So with the National Guard, that means you’re under military rule!?

Not exactly, and when I say not exactly I really mean absolutely not. The National Guard, which isn’t here yet, will be used to clean the schools that have been closed and get food to some people.

Are there guns all over the place? I bet there will be guns. Lotsa guns. And ammo. And tanks. And more guns!

Cool your jets. The Guard is not coming for military or police functions. It’s a straightforward manpower issue. We’ve only got so many hands on deck and simply need more.

How boring! OK, tell me all about the food shortages! Are folks fighting in the stores over the scraps? There must be fighting!

I’ve been to three different markets over the last week. The shelves are full. Grocery store traffic is normal. I’ve no fight videos to share. But there are hand sanitizers or wipes at the entrances.

So what the hell is different?!

Glad you asked, even if you did invite yourself in. Not too much. People try not to use the hand rails for the stairs. And at the train station folks will hold the station house doors open for others with their elbows.

That ain’t what I meant.

OK. The trains into the city are about ⅓ emptier as they leave New Rochelle because many folks in my neighborhood have been quarantined for the last week.

But outsiders reacted differently when the initial people got sick. The reaction of outsiders is vaguely reminiscent of the September 11th aftermath when some folks living in the back of beyond thought terrorists were coming for them and they needed tanks. And as bad as it was for many people locally, New Yorkers simply adapted. We even ran a marathon while the World Trade Center was still burning.

But I saw the screaming headlines! Like this one from the Daily News!

Yeah, well, they probably got tired of running Trump-Is-Clueless headlines and they gotta sell papers, you know?

[Yawn] So, anyway, the whole city is under quarantine now, right? Shut! Containment! Exclusion!

No. The city is not shut, regardless of what the Daily News screams at you. The containment refers to prohibiting large gatherings like in schools or worship houses in the area where people got sick. But people are free to come and go as they please if they are not part of the 1.5% of the population that was quarantined. It is neither an exclusion nor a quarantine zone. Perhaps Cuomo should have called it a “support zone” to refer to the National Guard helpers coming in, but I guess that ship has sailed.

OK, you can leave if you are not one of the quarantined ones, so tell me about the nightmare of disease on those rolling petri dish commuter trains into the city!!

Well, I drive to the station and take a seat on the train, most of which are new. No need to touch anything if I have a seat, and I almost always have a seat — even before the virus. It’s a relaxing 30-minute ride into Grand Central. The only thing I need to touch is my phone, since it’s an e-ticket.

So anyone working in midtown can easily go from their car to their office without touching anything until they get to their building. Subways are another matter, but that’s a NYC issue.

You know, this is really boring. Someplace there must be fire and brimstone coming down from the skies! Rivers and seas boiling! Cats and dogs living together! Mass hysteria!

Yeah. Sorry. But it just ain’t like that. In some places people will be sick, but I haven’t even heard a cough on the train. The only thing you’ll see are news trucks parked in front of City Hall and maybe a photographer at the train station, all looking for something, anything, to shoot.

In the end, this will still be New Rochelle. Norman Rockwell once lived here. Also Rob and Laura Petrie. The city now has a population of about 80,000 and growing with tons of downtown development. [Addendum: Cool interactive map.]

OK, now you’re just being a civic booster.

Who? Me? Actually, I tell you that because I don’t have much to work with here, OK? Life doesn’t really look any different for most. I saw a bunch of deer when I went for a trail run yesterday, does that help? And I heard coyotes last night.

OK, I got one for you — the politicians must be screwing this up big time! I mean, really, really big time!! Bigly!

A viral emergency is like a snow emergency for a politician. If you handle it well, few will notice. But if you screw it up you lose your job.

You know who knows that well? The Cuomo family growing up in Queens where the streets didn’t always get plowed. So Governor Andy has been all over this emergency giving extensive press conferences and showing a command of the facts. So too for New Rochelle’s Mayor Noam Bramson and Westchester County Executive George Latimer.

When people have a command of the facts you tend to trust them more when they give advice on what to do, or not to do.

Those guys are policy wonks. They dive into the material and know they damn well better be candid because there is comfort in knowledge and anxiety in secrecy. Yes, the illness is very important, but mostly so that people in the sweet part of life, who might get only a little sick because of younger and healthier lungs, don’t inadvertently pass it on to vulnerable populations.

Oftentimes people only mention politicians when bad stuff happens. But Cuomo, Latimer and Bramson all deserve much praise for doing as well as they can under exceptionally difficult circumstances.

New Rochelle is like a canary in the coal mine as they experiment, in conjunction with the Centers for Disease Control, to see what will slow down the viral spread so that hospitals aren’t inundated all at once. If 2% need hospitalization, that’s still 1,600 hospital beds for an 80,000-person city.

You mentioned the Mayor. And the County Executive. And the Governor. Any other political chief executive you want to give accolades to?

Finally. I get to answer your question with one of my own. Do you know of a national level chief executive that is a policy wonk with a command of the facts?

March 6th, 2020

Coronavirus and Crisis and the Courts

It’s often been said that crisis equals opportunity, and that is not usually said in a good way.

But that is “usually” and not always.

The coronavirus is now rapidly spreading and we have to deal with it. It has swept through the top branches of Iranian leaders. And just this morning one rabbi in New Rochelle has it at a congregation that was already quarantined.

Community leaders, of all stripes, shake a lot of hands. And viruses don’t care about religions or politics.

So where is the opportunity with this potential pandemic? Well, from my seat as a practicing civil lawyer, I see changes in the courts that should have been made long ago.

Non-lawyers might not appreciate this, but at the vast majority of court conferences little happens that is contentious. Most of it deals with discovery issues and schedules and 90% of that is agreed to by lawyers in the hallways. Often it is 100% with no legal issue that needs judicial intervention.

Sometimes you show up just to pick another date to show up. Seriously. Don’t ask me why. It’s beyond stupid.

The vast, vast majority of issues can be taken care of by email and by conference calls. Skype (or similar) conference if you like. There is often little need for personal appearances.

In one Brooklyn courtroom, I once estimated over $10M in lost legal time per year. And that was in 2008.

I reprint those 2008 suggestions again here today. It is time for New York to move into the technological age. We have been unresponsive in the past for this wasted time, but now our health (lawyers, judges, officers, clerks) depends on it.

Perhaps the time is now. My 2008 suggestions:

First: The court must create an electronic template for their 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 3.12.20: Scott Greenfield addresses this from the criminal side: Coronavirus, Courts and Jails

Update 3.13.20: Emily Bazelon in the New York Times now asks the same questions from the criminal side about why we can’t move more court proceedings online.

February 26th, 2020

Trump Sues New York Times (He will Lose Quickly)

OK, this is going to be quick and dirty because I am a bit time-limited.

The Trump campaign (Trump for President) sued the New York Times today for defamation based upon this opinion piece written by Max Frankel in March 2019. It deals with his campaign’s conduct regarding the Russians.

Trump is going to lose. In order to prevail he’s going to have to show, for a start, false statements.

First off, the complaint doesn’t start well as it’s supposed to be written with actual facts. This one is chock full of political hyperbole. This is not the way New York lawyers write, which means this is not what the judges expect to see.

And most folks with functioning neurons — and I think most of our judges have them — know that when that kind of nonsense appears in a complaint it’s to mask the emptiness of the complaint.

So we see this nonsense about “not entirely surprising” and “blatant attack” and “extremely biased” that has nothing to do with whether a statement is true or false:

The actual statements claimed to be false are opinions based on the evidence as the writer sees them. They are, in fact, obviously opinions based on the very words that are used:

“Reveals itself” is opinion. So to is “obvious bargain,” “watered down” and “otherwise appeased.”

While this following allegation is a bit better, claiming an “overarching deal,” it too will fail as deals need not be explicit and may be implied:

Given Trump’s invitation to Russia to involve itself with our elections, and the numerous contacts his team had with Russia, this claim has nowhere to go. It’s a fair opinion to claim “they knew about the quid and held out prospect for the quo.”

It’s tempting to leap out and say, “discovery is gonna be a blast!” but it will never get there. This complaint is doomed to be dismissed for failing to state a claim upon which relief can be granted.

New York’s standards for defamation are very high, and are set forth in Steinhilber v. Alphonse. This is a good primer on the law for those who want to know how strongly the courts protect our rights to speak freely.

As I noted back in 2015 when Trump filed a frivolous defamation claim against Univision, expressions of opinion, as opposed to assertions of fact, are privileged. No matter how offensive, they cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.”

The story will make some headlines and then vanish into the ethers.

Addendum: I think both Trump and his lawyer Charles Harder know this suit is dead in the water. Because if it was viable, Trump would be subject to a deposition. Trump. Under oath. About Russia. And there is zero chance of Trump allowing that to happen.

February 3rd, 2020

The Left Turn Auto Case (And the runaway jury)

You won’t see this appellate decision in any newspaper. You just won’t. It’s not sexy.

There’s nobody famous, the lawyer didn’t sue for a bazillion dollars and the jury didn’t award a gazillion dollars.

Because that’s where the media looks. Fame and money. Runaway juries. That’s what gets the clicks.

Except that this jury was a runaway. It just ran away in favor of a defendant car driver and awarded zippy-do-da to the injured plaintiff. Ergo, no story, or at least no story that gets clicks.

Out of the Appellate Division (4th Department) comes a decision reversing a jury verdict in favor of the defendant.

The facts were simple: A car turned left in front of a motorcycle. The kind of turn you teach your children to fear when they learn to drive. You don’t want to involved in a t-bone. From any perspective. And certainly not from the perspective of a motorcycle.

The view of the turning driver was unobstructed and there was a clear line of sight. The driver admitted at trial that he “never saw the plaintiff or his motorcycle prior to the accident.” There was, in other words, no reason not to “see what what there to be seen.”

The jury, inexplicably, came back with a defense verdict. Maybe they hated lawyers. Maybe they hated lawsuits. Maybe the judge gave them the case late Friday afternoon and they wanted to get the hell out of the courthouse. Maybe they hated the plaintiff or hated motorcycles or hated the lunch that the court officers served to them. Maybe a million things.

Juries are funny that way. They don’t always do that which seems abundantly obvious. They engage in jury nullification, ignoring the law, or simply not listening to the law, or not caring because they have other agendas.

Some auto cases are straightforward. Like a hit in the rear. Or, in this instance, a left turn case.

The trial judge should have tossed the verdict out as against the weight of the evidence. That didn’t happen. So the appellate division did it.

Reversed, as the jury finding “that defendant was not negligent could not have been reached on any fair interpretation of the evidence.”

It’s a tough standard to meet. But the facts as laid out by the Fourth Department make it look like a no-brainer. The case, decided last week, is Cramer v. Schruefer. A new trial was ordered.

January 14th, 2020

So the Secret Service Shot Your Dog…

(Gardiner Anderson/for New York Daily News)

There’s an ugly story in the Daily News today about a couple walking their dog in Brooklyn. They turn a corner and startle an off-duty Secret Service agent.

Secret Service agent pulls weapon and shoots down dog.

Agent claims dog not on leash. Daily News publishes picture of dead dog with leash. Secret Service decides not to comment further.

“She scared a cop who was walking home,” the visibly shaken dog’s owner said as he covered his eyes. “He shot her and she’s dead.”

I told you it was ugly.

Immediately, on Twitter, if you followed the story, there were folks saying that the owners should sue.

They could sue. But they would lose. Unless you count the value of the dog as winning. Which it isn’t.

In New York, dogs are considered property. And there is no claim for emotional distress to the owner of lost/destroyed property, regardless of whether it is your dog, your bike , or your favorite photo of your Great Aunt Gertie that was burned to a crisp. From the Appellate Division in Fowler v. Town of Ticonderoga:

Regarding plaintiff’s claim for damages for psychic trauma, a dog is personal property and damages may not be recovered for mental distress caused by its malicious or negligent destruction

You can recover the value of the property. That’s it.

If you have a physical injury of some kind (busted arm) you can recover for your emotional damage as well as the physical. Your difficulty cutting a piece of chicken with a busted wing is a loss, as is your difficulty pulling on your pants, fastening a bra, whatever.

But there must be a physical injury to recover for emotional loss. The exceptions are very limited.

One of those exceptions is the Zone of Danger case. Mom and child are crossing street at light. Driver is texting while driving and kills kid. Mom is not physically touched. This is one of the few exceptions. But it applies to immediate family only.

From New York’s top court in Bovsun v. Sanperi:

Where a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries. (emphasis added)

The problem here, of course, is that the dog is not a family member, no matter how much you want to believe it. We have a dog. We love him. We call him Tucker McDoofusPants. But the State of New York has deemed him property.

So. Sometimes there are horrible things that happen. In this case a law enforcement official shooting down your dog perhaps because he’s a panicky little weanie. He then apparently claimed the dog was unleashed, I suppose to justify the shooting.

But the photo that the Daily News has, that I reproduced above, shows otherwise.

In answer to a request from The Daily News to clarify the characterization of “unleashed” since The News has a photo of the dog’s body at the scene with her leash still attached, a spokesman for the Secret Service said it “will not have further comment.”

Take the guy’s gun. Take his badge. Prosecute for a false report if he made one. Make sure he doesn’t carry a gun again.

But a lawsuit won’t go anywhere meaningful.

Update: A new story from law enforcement now claims the dog was wearing a leash but it was not being held. This doesn’t change the analysis that, in New York, a dog’s only value is that of property.