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.

 

March 13th, 2020

Will Coronavirus Push New York’s Courts Out of the Colonial Era? (Updated x3)

Chief Administrative Judge Lawrence Marks
Chief Administrative Judge Lawrence K. Marks of the Courts of New York State delivers testimony during a joint legislative budget hearing on Thursday, Feb. 4, 2016, in Albany, N.Y. (Photo/Hans Pennink)

[Huge update at the end as NY suspends new jury trials, both civil and criminal]

New York’s Chief Administrative Judge, Lawrence K. Marks, issued a memo late Thursday to the judicial system about procedures to deal with COVID-19. Short story, the courts are still open and there is no suspension of jury trials. Yet.

But there’s a tantalizing morsel I want to discuss.

There are the six paragraphs, of which I will deal only with the 5th. Because it deals with procedures to reduce attorney traffic inside the courts:

(1) Intro; (2) Restricting access to those with COVID-19; (3) Procedures to deal with those that self-identify as infected, (4) Protocol for dealing with the issue; (5) limiting unnecessary traffic, especially to high-traffic courtrooms; and (6) Conclusion.

I deal with #5 since this was the subject of my post last week (Coronavirus, Crisis and the Courts). That called for the institution of specific procedures to limit the number of lawyers in civil cases who even need to come to court.

I won’t regurgitate the whole thing, but I first wrote about it back in 2008 when I estimated that one Brooklyn courtroom wastes $10M in lawyer time every year. The problem is that most stuff is agreed upon by the attorneys in the hallways. And that can be done just as easily by phone and email.

Judge Marks seems to now be pushing New York in the direction of limiting those unnecessary conferences, particularly with our “high volume parts– which bring together large numbers of people in courtrooms.” (A “part”, for you out-of-towners, is local lingo for where the judge sits.)

In addition to that part of the memo directing courts to liberally extend deadlines and grant adjournments — which we would expect — there is the directive to judges to “consider use of remote appearances (video and telephonic) to the fullest extent permitted by law.”

I suspect that some lawyers outside New York are quizzically scratching their heads on this. But, it’s true, the Empire State still operates much the way we did in colonial times: Show your ass in the courtroom. Even if it’s for a 60-second conference where there’s nothing to decide and so-sorry that you just spent the whole morning for those magical 60 seconds. This is, of course, mostly a downstate issue and short appearances and overwhelmed courtrooms are due to the high volume of cases.

Which was the point of my original post 12 years ago.

Back to Judge Marks. He writes that he is “reassessing” the procedures for these high-volume parts, and that means this memo is not a final product by any stretch of the imagination.

With the court system now specifically looking at those parts that waste so much time, and exploring the use of phone (and video!) conferences, New York’s courts may finally be on the road to entering the modern world.

I, for one, will be cheering Judge Marks on.

Update (2 pm): Hot off the presses, Judge Marks has suspended all new jury trials, both criminal and civil if opening statements have not yet been made. Trials in progress shall continue.

All civil Trial Assignment Parts are suspended.

All high traffic (read: NYC) preliminary conference parts shall maximize adjournments and directing appearances by phone or video conferencing. (Video! In New York!)

All appearances in compliance conferences that occur in centralized compliance parts suspended until further notice, with counsel to stipulate to terms or make arguments by phone or video conference.

When appearance is unavoidable, it “shall” be done by phone or Skype.

All motions to be submitted, and if argument needed it shall take place by phone or video.

Update #2 (Sunday, March 15th): All non-essential functions of the courts are postponed.

Update 3: The New York courts now have a page dedicated to coronavirus information and how it affects the operation of the courts.

 

March 12th, 2020

The End of Jury Trials Due to Coronavirus

It’s coming like a wave: The end of jury trials due to the coronavirus pandemic.

Jurors don’t want to show up in crowded places, judges don’t want them there, and none of them are to be blamed.

Suspended:

Houston (Harris County) – all civil trials

Michigan – all civil and some criminal trials: The Michigan Supreme Court has recommended that all civil jury trials in the state, as well as all criminal jury trials where the defendant is not in custody, be adjourned due to concerns about the COVID-19 coronavirus pandemic

US District of Connecticut:

All civil and criminal (grand and petit) jury selections and jury trials scheduled to commence now through April 10, 2020 before any district or magistrate judge in any courthouse in the District of Connecticut 

This will become a deluge.

Previously: How New York Courts Should React to the Coronavirus

Update: A friend emails me that he is picking a jury in on of the New York counties, that they are jammed into a small room, that two of the potential jurors are doctors, and that this was a “complete disaster” waiting to happen:

we had two doctors on our panel yesterday – one was at Lenox hill in the city and the other at Elmhurst – they both told us privately that bringing in jurors to central jury and then up to the rooms for jury trials defies every warning given so far by the government or health care providers and in their professional opinions it is a complete disaster. 

Update 2: The Southern District of New York will suspend jury trials (and naturalization ceremonies) set to start next week, as per the NY Post.

Update 3: Maryland – “All civil and criminal jury trials in the Circuit Courts throughout the state of Maryland scheduled to begin on March 16, 2020, through April 3, 2020, shall be suspended on an emergency basis”

Update 4: New Jersey: “Effective immediately, the Judiciary is suspending jury service for new trials,”

I’m going to stop with the updates, as of Friday morning 3/13, as it would be a full time job to keep up with the deluge to come.

 

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?