February 18th, 2021

Rochester Slammed by Judge for Demanding In-Person Hearings

Elliot Shields of the Roth & Roth firm. Photo by Rochester Democrat and Chronicle

The City of Rochester was slammed yesterday by a New York Supreme Court justice for demanding in-person hearings in police brutality cases. And the order was so wide-sweeping that it extended well beyond the police cases at issue to all matters that the City’s Law Department was defending.

The issue arose out of summer protests surrounding the death of George Floyd, as well as Daniel Prude, a Black 41-year-old who died last March 23rd after being physically bound by Rochester police officers. The police department then engaged in brutal crackdowns against the protesters.

Over 100 people filed Notices of Claim against the police department, a required precursor in New York to bringing suit against a municipality. The City, in turn, then gets an opportunity for a hearing where it takes testimony from the claimant. Such hearings, colloquially known as 50-h hearings after the authorizing statute, are akin to a deposition.

But the City of Rochester’s Law Department demanded that each claimant appear in person for those 50-h hearings, rather than doing them virtually by teleconference. As regular readers know, judges in New York from the outset of the pandemic have forced lawyers to take testimony virtually, refusing to allow matters to be stalled until the pandemic was over. Administrative orders from the courts have since followed.

There was no apparent justification for demanding hearings this way.

Notwithstanding these pandemic related changes, hearings had been attempted in an unrelated hearing effort to move the matters. But during one, Municipal Attorney John Campolieto was unwilling, or incapable, of wearing a mask properly, according to the suit that was filed, and it was held in a small room. Campolieto subsequently tested positive for COVID.

The action was brought by the New York City firm of Roth & Roth, which filed 115 claims regarding abuse by the police related to the protests, and was noticed for numerous in-person hearings. (As per my conversation with partner David Roth.) The well-being of their attorneys were likewise at risk in being forced to in-person hearings. This included Roth & Roth associate Elliot Shields, a Rochester native who maintains connections with the City, who had appeared at earlier hearings and depositions with Campolieto.

Bringing suit in their own name against the head of the Law Department, the firm asserted that demanding in-person hearings during an uncontrolled pandemic was “designed to gain a strategic advantage.” And it was being done despite the fact that the City’s Law Department had just had a COVID outbreak.

Justice Ann Marie Taddedo agreed, and wrote in a decision that the City’s conduct was “arbitrary and capricious” in demanding in-person hearings. But Justice Taddedo went well beyond the confines of this case.

The order was exceptionally wide, encompassing not only these police brutality lawsuits, but all 50-h pre-suit hearings by the City, regardless of whether they are related to these police brutality claims or not.

And still worse yet for the Law Department, an apparently furious judge made the order so broad it encompasses all depositions in all cases for which the City of Rochester is a party.

This decision stays in effect until the emergency declared due to the pandemic is lifted.

The Law Department of the City of Rochester has, in my opinion, really screwed the pooch and done an extraordinary disservice to the citizens of Rochester. With this decision, every judge that comes across the City in litigation in any case will severely question the basis of any request they make, far more so than they might ordinarily. I don’t know what kind of reputation Rochester’s City attorneys had before, but it is most surely in the crapper now.

Whoever made this dangerous and bone-headed decision should be fired.

—————- The relevant documents below——

 

February 16th, 2021

A Year of COVID – And 3 Litigation Changes

You know what this is

It’s been a year since I last set foot in a real courthouse. I appeared for jury selection in a Bronx nursing malpractice case in mid-February. Some money was on the table, but I was pushing for better.

But the news. In the news was the virus. It wasn’t here yet. As far as we knew. But it was coming. And when it came it would come hard, and the world was going to be shut down.

It could be days wasted up in the Bronx waiting for a jury room. More days wasted waiting for a judge assignment after that. If I picked that jury, my gut told me I would never make it to verdict. And then what? How long would it be before my client had another chance?

The client approved of settlement, and I beat a hasty retreat from the courthouse.

It was an unseasonably warm day for February in New York, but I put on my regular winter gloves anyway as I rode the subway out of the Yankee Stadium station near the courthouse. No one, after all, was sure exactly how the virus was transmitted. I touched nothing. The virus was novel.

And a few weeks later news helicopters spun over head as my home was in the bulls eye of the first East Coast Containment Zone. The virus, of course, was not contained. (See: Greetings from the Containment Zone)

What did we learn over the past year? A lot. But I’ll only cover changes to the litigation system. ‘Cause that’s what you came for.

Here we go with three critical changes; the first two have already been implemented (will they continue when it’s over?), and the third will relieve the mammoth courthouse backlog caused by the virus. Given that they collectively change the way litigation has been done for the last 200 years, I would call it significant:

Many Courthouse Conferences Waste Time: Anyone that’s been to the high volume parts of New York City’s courts knows this problem. Hundreds of cases may be on a calendar call. Oft times, if you part of this cattle call, you are just given a new date a few months away. Lawyers gotta schlep to the courthouse for this?

If the case is still in discovery, most issues are resolved by counsel in the hallways. If you have a real issue, you wait (and wait, and wait) for a conferences that takes 5 minutes when you get your turn at the bench. But those five minutes might consume an entire morning of travel, waiting, more waiting, discussion and then travel again. It’s been this way since forever. (See: How One Brooklyn Courtroom Wastes $10M per Year)

On March 13th of last year, at the directive of New York’s Chief Administrative Judge, Lawrence K. Marks, virtual conferences were put in motion in order to reduce foot traffic in the courthouse. (See, Will Coronavirus Push New York’s Courts Out of the Colonial Era?)

Lawyers will now often “meet and confer” to iron out discovery issues without conferences. Sadly, it was not habit before because one side of the equation gets paid by the hour. But now only real problems are likely to see a judge or law secretary (virtually).

For routine conferences this has worked very well, and I hope our judiciary continues this pattern after the pandemic is over. (And it will be over one day. I think it will, I think it will, I think it will.)

Put on a suit, spend 10 minutes in front of the computer, and done. No need to blow half a day for minor discovery issues.

Virtual Depositions Work: While some defense lawyers tried to use the pandemic as an excuse to delay (“We need to see the witnesses face to face!”) that door was firmly slammed shut by the courts. Depositions proceeded virtually. (See: New York Judges Order Virtual Depositions Due to COVID-19)

And you know what? They have worked just fine. I’ve heard few complaints from attorneys on either side. And if you want to be in the room with your own client, have at it. But there’s no need for others to be there if they don’t want to for health reasons, or for mere convenience. There’s no reason I shouldn’t be able to take the deposition of someone in Albany or Buffalo while sitting in my office if I so choose. Pandemic or not.

And if anyone thinks they need to see the reactions of the of the witnesses better, they can always record them. This, of course, is not new. We have had this option for many, many years, but it is very much the exception when done, not the rule.

A bad faith law is needed to move cases: Cases won’t settle without a jury. We knew this before, of course, but it really comes home now. Without the threat of a jury in the box the incentive to settle evaporated for liability insurers, even on clear-cut matters. Worse yet, can now offer even fewer pennies on the dollar if the injured plaintiff was in additional financial distress (and potentially leaning on tax-funded safety net programs to get by).

Insurers have no down side in delay, delay, delay. They just keep the premiums (nicely invested thank you very much) while postponing the benefits. The pandemic is a sweet deal for them, while the victims (and tax-payers) suffer the costs.

And now with the resulting mammoth backlog in the courts due to unresolved cases, and then topped off with cutbacks in the courts due to statewide financial shortfalls (older judges no longer getting certified), there are years of waiting ahead.

But with a good bad faith law, this problem vanishes. Hang the Sword of Damocles over the heads of the insurers and watch their profitable recalcitrance vanish. (See, Why Can’t New York be Like Alabama)

There’s no excuse for New York not having a bad faith law with real teeth, as it has real benefits: Victims get justice, the overwhelmed court budgets get relief, there is less need for tax-payers to fund the costs of the injuries, and the insurance companies merely must do what they were always required to do (but never forced to do).

So there you have it, two very significant changes in the way law has been practiced the last couple hundred years, that we should keep on doing. And one legislative proposal to make the wheels of justice roll efficiently.

The pandemic has caused extraordinary heartbreak in a wide array of areas. We have adapted somewhat to it — and along with you I can’t wait to burn those masks. But some adaptions are worth keeping, and one legislative change is long overdue.

 

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.