November 12th, 2020

Cuomo Signs Anti-SLAPP Bill (And it’s Trouble for Trump)

On Tuesday, New York Gov. Andrew Cuomo finally signed anti-SLAPP legislation that had passed the Legislature over the summer; a bill I’ve been advocating for several years. Being hit with two frivolous defamation suits over my blog posts can have that effect.

The legislation commands an award of costs and legal fees (“shall”) for frivolous defamation suits that are brought in order to stifle the free speech rights of others.

I’ll get to Trump in a minute — yeah, I know you saw him in the subject heading — but first I want to tip my hat to Assemblywoman Helene Weinstein who has championed this legislation for a decade. While she’d been able to get it passed in the Democratically controlled Assembly, the Republican held Senate refused to act.

For reasons completely unclear to me Republicans didn’t see fit back then to stop frivolous suits that impaired free speech rights. And yet, the First Amendment right to free speech is as non-partisan as it gets: What’s good for the goose is good for the gander.

That political dynamic changed with the Blue Wave that came two years ago when the New York Senate flipped Democratic, and Senator Brad Hoylman joined the party as Senate sponsor and advocate. This year it passed, and with Cuomo’s signature it is now part of Civil Rights Law ¶70-a.

So what does this have to do with Trump?

The legislation “shall take effect immediately.” Not prospectively, as most new laws set forth. Now. The law can be used today to seek dismissal and attorney fees in pending suits.

And who has a pending defamation suit in New York? Yeah, New York’s most vexatious former resident: Donald J. Trump.

Currently pending is a defamation suit he brought against than the New York Times earlier this year where the paper published an opinion column about a quid pro quo between Russian officials and Trump’s 2016 campaign:

In the essay, Mr. Frankel wrote about communications between Mr. Trump’s inner circle and Russian emissaries in the lead-up to the 2016 election. He concluded that, rather than any “detailed electoral collusion,” the Trump campaign and Russian officials “had an overarching deal”: “the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy.”

Since Trump was sworn in, he usually just blusters now about suing people for defamation — can you imagine him sitting today for a deposition? — but this time he actually brought one.

I ripped this suit when it was first brought. And reminded folks of his moronic defamation suit against Univision, and of the time he lost a defamation suit to biographer Timothy O’Brien.

The Times has already moved to dismiss the case, but devoted just a single page to a sanctions request. The Times acknowledged that such sanctions in New York courts are “sparingly awarded.” This is something I know all too well from my own failed attempts to have vexatious litigants held accountable in the two suits against me.

The motion to dismiss has not yet been decided. So the Times can now supplement its submission to the court due to a change in the law. The Times can ask that legal fees be given. And that is exactly what the Times should do.

(The briefs by the NYT and Trump campaign are at the bottom)

Trump, of course, is not the only one who starts vexatious defamation suits in order to quell negative opinions. He simply makes for a great example.

The suits have become more common with run-of-the-mill negative comments on sites such as Yelp, Google, TripAdivsor, etc. I’ve received my fair share of inquiries about them.

What I expect to see, if the lawyers defending the cases are paying attention, is motions brought now under the new law to not only dismiss but for the legal fees.

 

November 11th, 2020

Blaming the Lawyers – Election Edition

It comes as news to no objective person that Joe Biden won a sweeping victory in the election — both in the popular vote and most likely in the electoral college when the counting is done — and that Donald Trump has lost.

But Trump, being Trump. won’t accept that people have done the rare thing of voting an incumbent out of office. They usually win.

So he’s going to court screaming fraud, or something, and trying to do this in multiple states. Some places he wanted them to keep counting votes and others to stop counting. None of this is in the least bit surprising, because Trump.

But a deeply troubling thing has happened. The Lincoln Project, a group of #NeverTrump conservatives who knew that Trump was neither Republican nor conservative but only out for himself, has decided to attack the lawyers bringing the suits:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

This is a very bad move.

If lawyers come into court with frivolous suits, then courts can do two things: The first is to dump the suits.

The second is, potentially, to sanction the lawyers if the suits were without basis in law and fact. Courts, after all, have an inherent power to control the conduct of those that come before them and sanction those who use it for an improper purpose. (Chambers. v. Nasco)

So let the lawyers make their arguments. If they go too far in representing their client and overstep their legal and ethical bounds, the courts can take care of that issue

And these would be good things. Let the Trumpers see that the claims of fraud were meritless, and to the extent they existed, they were isolated circumstances where the votes could be counted on fingers and toes. And from both sides.

Sunlight, Justice Brandeis once wrote, is the best disinfectant. Let the world see a lack of merit. Let the world see Trump lose. Over and over and over again.

The one thing we should not want is for anyone to say that he was denied his fair access to the courts and a fair count. Trying to intimidate lawyers away from representation could do that.

Let the courts prove the election and count were fair. Let the courts shove the fairness down Trump’s throat.

Attacking the lawyers for having a reprehensible client is the wrong move. For even sociopaths have a right to due process, and have a right to have their claims heard. And rejected.

Indeed, having the courts reject bad claims is the best possible outcome at this point.

 

October 20th, 2020

The Qualities a President Needs

As Obama was leaving office, I posted this list of talents and qualities I want to see in a President. This is, notably, without regard to any particular policy.

As people flood the polls now, almost four years later, I re-post.

And ask yourself, of the two main candidates, who has the qualities that are needed?

——————

  1. I want  a policy wonk. Fundamental to any leader is an ability to understand that the choices aren’t between good and bad, but between bad and awful. And you want a president with the deep understanding of policy to figure out which is which.
  2. I want someone to appoint qualified people. The vast, vast majority of America has no idea who the head of the EPA, FEMA, Department of Energy, or HUD are. You know why? Because they didn’t become part of any grand screw-up. There’s something to be said for not knowing who they are, as it means they are most likely doing their jobs without conflict.
  3. I want someone that doesn’t make rash decisions.  And that’s because policy is full of nuance. Slow and deliberate is the way to go, so that a president can absorb as much information and as many opinions as possible.
  4. I want someone who can keep his cool under pressure. Every president will face pressure, be it from foreign conflicts, hostage/kidnapping/terrorism or domestic political problems. Being able to take the long view, instead of instantly ranting and raging, is a quality to be admired.
  5. I want a scandal-free administration.  When was the last time a president walked out of the oval office after 8 years without major scandal?
  6. I do not want drama. If there is some sort of drama regarding the White House, it is never, ever good.
  7. I want someone who doesn’t blanch at the prospect of admitting error and reversing course. Every president will make mistakes, and ego often gets in the way of admitting error. But it’s far better than making the situation worse by continuing on, in the desperate hope the bad decision will magically turn good.
  8. I want someone with a fundamental appreciation for the fact that ignorance and arrogance are both awful in a president, and together they can be deadly. And the wisdom to recognize it in themselves.

I put up these qualities, instead of issues, because there are thousands of issues that will cross a president’s desk.  Cherry-picking what I liked (or didn’t like) would miss the point about the human qualities that someone should have to be an effective president.

Historians will remember Obama well.

I wish we’d had an election between Joe Biden and John Kasich. It would have been between two fundamentally decent people, regardless of what you thought of their politics, and no doubt focused on policy issues. It would likely have been boring. When it comes to politics, I usually like boring. (And the press would have hated it which is why so much free press is given to the most outrageous candidates.)

The nation is worse off when presidents don’t have these qualities.

 

October 15th, 2020

Cuomo Throws Monkey Wrench into Malpractice Immunity Law

When COVID-19 came to New York, the Legislature moved fast to grant widespread immunity to hospitals and nursing homes for virtually any acts of negligence that occurred, including, obviously, medical malpractice.

Realizing that such immunity was far too broad, the Legislature then pared it back. See, from August 4th, Cuomo Signs Bill Limiting Medical Immunity.

The key element of what will entitle medical practitioners to immunity now is whether they were “impacted” by the pandemic. The relevant time period shift in the law is March 7 to August 3rd. And yes, “impacted” is vague.

When this paring back of immunity occurred, I wrote of what the future would bring for any nursing home or medical malpractice suit brought within the key time period:

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.

But now Gov. Andrew Cuomo has monkey-wrenched the arguments of malpractice defense lawyers throughout the state.

How did he manage to do that? In an interview with CNN, he said that New York’s hospitals “were never overwhelmed” at the peak of the COVID-19 pandemic.

Yowza! So hospital lawyers, defending malpractice cases, will obviously all want to claim their hospital or doctor was “impacted.” But the Governor just said the the hospitals “were never overwhelmed.”

Now you can try to parse the differences between those two phrases, but the ultimate answer will no doubt result in intense factual disputes.

This may well mean that attempts for fast victories on motions to dismiss — asserting that based on the pleadings alone there is no cause of action — can be easily shot down.

But will they be dismissed based on lack of evidence, as happens with summary judgment motions? To grant summary judgment there must be an absence of a factual dispute. Because factual determinations are for juries, not judges.

Any thoughts that such dismissals will come easily should now be out aside. Plaintiff’s bringing actions that fall within the applicable time period will be wise to add claims that treatment was not impacted by the pandemic.

And defense lawyers would be wise not to think that some conclusory affidavit from a hospital administrator will easily win them the day. Because I don’t believe they will.

We will be going someplace in discovery that we don’t usually go: Lawyers will now be looking at who else is in the hospital, what kinds of patients they were, how many beds were filled, etc., all in order to prove that care was (not) “impacted” by the pandemic.

An easy example: Patient goes to a New York City hospital for COVID in late June. Patient needs medication for condition. Wrong dosage is given by young intern who just started out on July 1 — instead of 0.5 mg it is 10.0 mg. Was treatment “impacted” by the pandemic?

Hospital argues that patient was only in hospital due to COVID.

Patient’s counsel argues that hospital was not understaffed and rushing around like chickens without heads at the time. There were, in fact, empty beds and staff available as the pandemic in NYC was slowing down.

The Governor just handed a big fat factual dispute to litigants throughout the state who, perhaps, thought the matter would be easily resolved in favor of medical practitioners.

Discovery may well be going where discovery has not gone before.

 

October 14th, 2020

What Does A Pandemic Jury Look Like?

Watergate jury, by John Hart. The original hangs in my office.

Yesterday I wrote about the post-pandemic law office, and depositions and court conferences. Today I shift to jury trials.

On Monday, New York’s Chief Judge put out a statement with lots of good news, including the fact that experimental jury trials have started. For the courts outside of New York City, 70 criminal and civil trial have now been scheduled, and many completed.

And jury trials are to start next week in New York City. As per CJ DiFiore:

In New York City, our current plan is to restart civil jury trials next week, although we are carefully monitoring the COVID metrics in different areas of the City and have not yet finalized decisions on the number or locations of these initial jury trials. You can be sure, however, that we will make responsible decisions based on all of the latest data and public health guidance, and that no jurors, lawyers or witnesses or members of our staff will be asked to report to our courthouses unless we are confident in our ability to protect their health and safety. And every trial that does take place will be conducted in a building that is operated with the full range of safety protocols that have been implemented, tested and refined to protect the hundreds of jurors, lawyers, witnesses and staff who have already safely participated in our jury trial pilot over the last several weeks.

As someone who makes his living in the courtroom well, I’m obviously happy to see jury trials restart. For it is only with a jury in the box that an insurance company will be forced to come to the table in good faith to negotiate.

But. And you knew there had to be a “but,” didn’t you?

What will these jurors look like who appear amid a pandemic? Will they be representative of the general population, so that litigants have a jury of their peers?

Unlikely.

The jury pool as a whole is most likely to be skewed.

We can start with those most vulnerable to COVID-19: The elderly. What percentage of our seniors/retirees, who ordinarily would show up for their civic duty, will say “no way, ain’t gonna do it.” Because virus. This demographic is almost certain to decrease.

How about those with underlying respiratory conditions? You can rest assured more of those will also stay home than would ordinarily show up. And many of these will have conditions exacerbated by poor health care.

Minority populations? Black populations have been especially hard hit, and it would be reasonable to assume that, as a percentage, fewer would want to come into the close confines of a courthouse no matter how much the judiciary says it will be safe. Because potential jurors won’t really know what the lay of the land will look like until they get there.

Mass transit users? Less likely to come to the courthouse while those that can afford private transportion are more likely.

And what of those that think the virus is no big deal? This population, generally conservative, will be more likely to come to the courthouse to serve.

So, in summary, the jury pool in New York City is now likely to decrease the number of seniors, those with respiratory issues, Blacks, and the poor, and conversely more likely to include those who are young, white and conservative.

I’d love to say that I have a solution for this problem. I don’t.

But I’m open to suggestions. And I bet the judiciary is also once they recognize the problem.