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.

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.


January 16th, 2014

Will Video Testimony Be Misleading? (The Future of Law?)

Apple Insider Image

Apple Insider image of how the patent would work to morph past images in with the present ones for transmission.

Video testimony has been held by many to be a big improvement over a paper transcript. You can see facial expressions, assess the tone of voice, and evaluate delays in answering. Bill Gates learned that lesson years ago with his much-maligned video deposition with the “long pauses before [he] answered the simplest of queries…[and] the hint of contempt in his voice.”

But the “what you see is what you get” belief that we have in video may change, if the testimony is electronically transmitted.  Video testimony in the coming years might not be quite as reliable as we’d like to think.

Will it be our eyes that are deceiving us? No. It may be technology. Is this the future of law?

As per Apple Insider, in discussing a new patent issued today regarding video transmission over low-bandwidth, we may be in for a subtle but significant change. This is the problem that Apple seeks to fix:

Currently, video communication over cellular data is spotty in many areas due to bandwidth restrictions and existing wireless technology. In some cases, features like Apple’s FaceTime are nearly unusable due to dropped frames, extremely low-resolution images and poor audio quality.

How does Apple want to deal with that? By taking sample frames from the call that had been used previously and morphing them into the live conversation, to give the illusion of a constant video stream. In other words — and this is the part that would interest lawyers and judges — the visual cues from the speakers’ faces may not match with the words that are actually being used.

Again, as per Apple Insider:

The U.S. Patent and Trademark Office on Thursday published an Apple invention that replaces frames dropped during a low-bandwidth FaceTime call with pre-recorded or doctored images, thereby creating the illusion of a seamless feed.

Sometimes we see problems in movies and shows where the “sound is off” — as a fraction of a second misalignment messes with our brains. But in the Apple solution, they will simply morph old frames in so that it becomes seamless. The facial expressions you see might be for a different set of words that were previously used.

Is this a problem today? No. Will it be in five years? Check back with me then.


December 5th, 2012

How Not To Ask A Question

Digging through an old file on a settled case, I came across some notes that I made during a deposition I was defending. It was a simple hit in the rear auto case and I jotted down some of the questions the defense lawyer asked.

Each question, it seemed, was more wretched than the next. None were spoken in plain English:

What were the points of impact between your vehicle and the adverse vehicle?

Were there any traffic control devices?

Did  you notice blood on your person?

Did you get out of the vehicle yourself or did you get out with assistance?

What was the nature of your conversation?

The worst part about these questions, I think, is that the lawyer was working from a script.

I’m fairly confident that any 10-year-old could ask better questions. All you really need, to get this type of basic information, is natural human curiosity to find out what happened. It was the tortured attempt to sound like a lawyer that made me laugh to myself and take notes.

I was reminded of those notes yesterday when I read Bryan Garner’s blog post:  Is there ever a good reason to use “hereby” in your writing?

It isn’t really hard to abuse the English language. All you need to do is go to law school.

Perhaps some young lawyers out there will recognize themselves as they struggle to ask deposition or trial questions.


February 21st, 2011

Should Residents and Students Be Sued in Medical Malpractice Cases?

Ace medical blogger Kevin Pho, of Kevin M.D.

Dr. Kevin Pho is probably the medical blogosphere’s leading blogger, and he puts up an interesting commentary entitled Medical Students Should Not Be Liable for Malpractice. Why? Because they are, for the most part, being supervised by others who are completely responsible for what they do.

He writes due to a bill in Arizona on the subject that seeks to confer immunity on medical students for errors of negligence. Dr. Pho supports the bill, writing:

Injured patients do not benefit from suing medical students.  If negligence occurs, a supervising physician will answer the charges, and participate in the malpractice process.

Leave medical students alone, and exempt them from medical malpractice lawsuits.

For the purposes of this post, I am expanding beyond this Arizona bill and also broadening the subject to include residents, who are also supposed to be supervised (albeit to a lesser extent). The principle is the same, particularly for the junior residents; there is someone overseeing what they do.

This is the issue for the lawyers: Why sue these doctors-to-be or young residents if there is a medical practitioner or hospital that is supervising, who will be liable for their conduct?

Personally, I would prefer not to sue residents, and I certainly wouldn’t want to sue a medical student, but attorneys representing patients are sometimes forced to if they are going to fulfill their obligation of “zealous advocacy” to their clients.

I’ll explain how this happens in the real world with of one of my own cases, long since settled, no names needed. Some years back a young resident was putting a catheter into an elderly patient’s jugular vein so the doctors would have easy access. He missed and put it in the carotid artery. A nurse discovered this shortly afterward, the patient was rushed into surgery to repair the artery, but the patient died.

I sued the hospital, but not the resident who did the deed since his name was an unintelligible squiggle on the chart.  Since the hospital was responsible for any treatment he gave, it didn’t really matter from a legal standpoint, right?

Well, not quite. You see, when people are a party to a lawsuit they are often treated differently than those who are non-party witnesses. And if there are different rules there will be different consequences.

In this case, the resident was produced for deposition as a person with knowledge of the event — produced as an employee, not as a defendant. I learned during the questioning that he put together a PowerPoint presentation of the event for a hospital’s internal conference that wanted to know what about this “adverse outcome.” I asked for the document, and the defense lawyer refused, telling me it was privileged. And she was technically correct under New York’s Education Law §6527(3) that governs such internal quality reviews that are done by hospitals.

But the law has an exception for those that are actually parties to lawsuits. And that exception reads:

The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.

We were entitled, therefore, to copies of any statements a person might have made to an internal committee doing reviews of incidents, but only if that person was a defendant;  Otherwise it is privileged because of the public policy of candor in such committees to improve medical care.

Now this was the interesting part. I still had time to add the young resident to the suit, and I could then get the document. Since he was the one that actually made the error, this shouldn’t be any kind of problem from a legal perspective.  So I made an offer to defense counsel. If I sue  him, I told her, I will be entitled to the document. So why not just turn it over and I’ll agree not to sue him?

Sounds reasonable, right? I figured I was moving the case quickly and getting the document my client needed to help establish liability, and which I knew I could get one day. And at the same time the young doctor would be spared the understandable anxiety of having his name on the suit, and the potential of being included in the secretive National Practitioners Data Bank that tracks significant settlements and verdicts against doctors, the results of which could follow him when he applies for his next job. This was a pretty clear win-win for both sides.

But the answer from defense counsel a few months later was no. And further, I was told, they would cross-move to have me sanctioned if I moved to amend the suit to add the young resident as a defendant, though I was never really clear on what theory they could possibly make such a motion, unless desperation is a theory.  So I  ignored the threat and moved to add the resident as a party, which I was obligated to do if I was going to represent my client well. And defense counsel cross-moved to have me sanctioned for making threats to add him as a defendant. Yes, my motion was granted and yes the cross-motion was laughed out of court. (My expert legal ethicist wrote that I was a mensch for making the offer.)

But, to directly answer the question of Dr. Pho, there are times when having  a person added as a party to a lawsuit is beneficial because it helps in discovery.

Here are two other ways it might help: If the student/resident moves out-of-state, and they move often at this point in their careers, the plaintiff still has access to them because, as a party, they are required to participate in the litigation and it makes getting depositions and documents easier. And it also helps at trial, because if they don’t show up to testify they are going to have some serious explaining to do.

And last, if the young doctor is a party, s/he can be asked their opinions. If they are merely fact witnesses, they don’t have to give their opinions. (This is the law in New York; It may differ elsewhere.)

And so, Dr. Pho is right that the students shouldn’t be added as defendants, but only philosophically. I don’t know what the law is in Arizona with respect to the three issues I just raised, but in the bigger picture it is easier to understand why such people do get sued; Because the law treats a party to a lawsuit differently than someone who is merely an employee of a party.


February 26th, 2010

Is Non-Party Witness Entitled to Attorney at Deposition? (Appellate Court Says No)

The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
pre-trial deposition.”

The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.

Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.

The lower court, in one of the most bizarre rulings I’ve ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to

“consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]” and that, if such releases are provided, plaintiff will “be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . .” 

Holy mackerel. In reversing the lower court, the Appellate Division called that “repugnant.”

But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” The parties can object later, but the witness isn’t a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.

And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:

…we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents’ contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition. 

The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?

And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.