August 3rd, 2020

New York Legislature Finally Passes Anti-SLAPP Legislation

It was five years ago that I wrote an op-ed for the New York Law Journal, begging the Legislature to pass anti-SLAPP legislation. And now, both the New York Assembly and Senate did just that.

To quickly review what a SLAPP suit (strategic lawsuit against public participation) is, it’s a meritless lawsuit designed to shut someone up by foisting litigation upon them. This is generally done with frivolous defamation claims.

When such suits are newsworthy, it’s usually because someone high profile like Donald Trump is involved, even when he doesn’t have a leg to stand on. One example (and there are many) is the $500M suit he brought against Univision’s President for comparing him to homicidal racist Dylan Roof, which had been presented as a clear opinion.

Or losing a suit he brought against Tim O’Brien for questioning his wealth and calling him a mere millionaire. After losing, Trump actually confessed that it was frivolous, saying in an interview:

“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

But that’s the high-profile stuff. Most you won’t hear about, either because the people are not Page Sixers or because the threat was successful. You don’t really read about the butcher, baker or candlestick maker being threatened for bad Yelp or Trip Advisor reviews. But it happens.

I’ve been down that road twice with this blog, once being sued by Joseph Rakofsky when he sued the internet. And a second time by orthopedist Michael Katz after I reported that a judge repeatedly calling him a liar from the bench when he appeared as an expert.

Both times the suits were shot down by judges in the pleadings stages, but New York’s lower courts seem to have a great reluctance to sanction such stupidity, which would have gone a long way toward helping cut down these kinds of actions.

With that history out of the way…

Now the Legislature has, at long last, acted. Previously it was only the Democratically controlled Assembly passing bills, with the Senate (in Republican hands or very closely divided for many years) failing to follow. I never figured out why that reluctance was there since free speech is a bipartisan issue.

With the leadership now of Senate Majority Leader Andrea Stewart-Cousins and Assembly Leader Carl Heastie a bill has been passed. This came with the efforts of Assembly sponsor Helene Weinstein and Senate sponsor Brad Hoylman.

So what does it do?

First, it requires legal fees to be paid if the suit is frivolous. And frivolous is defined the same way it is in New York’s court rules, except now it will be statutory: It will be deemed frivolous if “the action involving public petition and participation was commenced or continued without substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.”

What is public petition and participation? The definition is quite broad. It fills that requirement if it’s regarding “(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of  the  exercise of the constitutional right  of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”

This should cover not only the high-profile crap from celebrities threatening to rain a shitstorm of lawyers down on your head if you don’t take down that post calling them weenies, but also the humble restaurant review that was less than generous.

What is a claim? Not a threat, apparently, but it “includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.”

And what is “public interest? Glad you asked: “Public interest shall be construed broadly, and shall mean any subject other than a purely private matter,” by showing that “the cause of action has a substantial basis in law or is  supported by  a substantial argument for an extension, modification or reversal of existing law.”

And it gets heard quickly (by New York standards), as, “The court shall grant preference in the  hearing of such motion.”

Finally on the bill, the matter is stayed pending the resolution of the motion. The court can, if it so chooses, order “specified” and “limited” discovery if the plaintiff asserts certain specific discovery is needed to show the motion isn’t frivolous.

Governor Cuomo should sign this bill. There is no colorable reason to protect frivolous suits that are designed to quash the First Amendment rights of the citizenry.

Is there a bug lurking somewhere that might throw a wrench into all this? Yeah.

There’s an open question as to whether federal courts will apply state anti-SLAPP laws. Many other states already have them.

The federal Courts of Appeals are split on this issue and one day it may come before the Supremes. Just recently, in a matter involving television personality Joy Reid, the Second Circuit said state laws did not apply. But the Ninth Circuit says they do.

Congress, of course, can resolve this problem with a federal anti-SLAPP statute. The only ones who would oppose it would be vexatious litigants.

In the meantime, you should expect New York litigants stretching for any kind of federal angle to get into federal court and avoid New York’s new anti-SLAPP legislation. Assuming, of course, that Gov. Cuomo signs it.

Elsewhere:

 

July 1st, 2020

Friends and Enemies

It’s become almost reflexive for many people these days, that if a person on one political team says one thing then you must oppose it if you’re on the other. But not just oppose them; demonize them.

It is, of course, a godawful strategy for many reasons, two of which I address here. One political and the other with the law.

As some know, there is a conservative group known as the Lincoln Project that has been skewering Donald Trump up, down and sideways for being ignorant, narcissistic, dishonest, sociopathic and, basically, not having a shred of human decency. They churn out new 60 second commercials on a daily basis.

Notice that I wrote conservative. They appreciate that Trump doesn’t support their conservative views of government, but rather, that he only cares for himself.

Thus, a traditional “enemy” of the left has an ally: The conservatives of the Lincoln Project. They are supporting Biden because the safety of the nation is more important to them than any particular political issue.

Once upon a time, it’s worth noting, many conservatives that support limited government used to support a woman’s right to choose. Because it was consistent with less restrictive government. That only changed during the Nixon years when it was identified as a wedge issue to appeal to cultural conservatives. You could drive a fleet of very large trucks through that divide between the two branches of the Republican party.

That same divide exist(ed) with marriage equality. The limited-government types were not always aligned with the conservative, religious right, “family” voters.

Things change.

When you see demonization in politics it’s for a reason; Those folks are trying to raise money to get (re)elected and generating anger and hatred is a great way to do it. And it turns out the vote.

But that doesn’t mean you should engage that way. Because it might be counterproductive to far greater goals. For the conservative of the Lincoln Project, it’s the very safety of our democracy and respect for the constitution.

If you’ve spent time demonizing one side, it may be difficult to wrap your arms around the fact that sometimes they are your allies. Or that they might change.

(And we see this often in foreign affairs, where hawks and doves don’t necessarily align with political left/right.)

Now we turn to a parallel in the law.

Keeping personal issues at arm’s length with legal issues serves the lawyer well, particularly in litigation. Because at some point you may find yourself on the same side of an issue. And you will need to talk.

The issue might be something big, like the parties both wanting to settle, or something small like needing an adjournment of a conference so that you can go see your child in her 4th grade play.

Demonization of the other folks doesn’t help your ultimate cause. Your ultimate cause is helping your client, because lawerying is about service, not scoring stupid points.

The Lincoln Project is a model of this. They are looking at the bigger picture.

And if Trump is sent to his political demise, as most of the country now desperately hopes, it is likely that many in the GOP that have been riding along with Trump will go with him.

There’s little doubt that many who now cheer on the Lincoln Project will, if Biden wins, likely oppose many of their positions later on. And that’s OK.

Perhaps, if that happens, a more mature political scene will emerge from the ashes. We will have a greater appreciation for the concept that if we disagree with each other 75% of the time, it means we agree and need each other 25% of the time. So demonizing isn’t helpful.

Hey, one can dream.

One of many commercials from the Lincoln Project: Watch it.

 

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.

 

April 15th, 2020

It Won’t Happen to Me

David Lat, via ABC News

When I was a puppy lawyer I learned a truth that’s come up time and again when trying cases: Jurors, for the most part, don’t think that the bad incident would have happened to them.

It doesn’t matter if it’s a car crash or medical malpractice. Somehow, someway, people want to believe they are different. The victim must have somehow been vulnerable or at fault.

And then the same issue popped up with COVID-19.

Before going on to an interview with David Lat on this subject, I want to reinforce something: I’m no different. I’m scheduled to turn 60 next week — I may cancel due to the virus, and stay 59 for another year — and figured that the virus probably wouldn’t make me ill. Despite being in the original east coast containment zone.

Why? I’ve been a distance runner for almost 30 years and run a bunch of marathons and have, I think, a pretty good set of lungs. And healthy lungs are important, we’ve been told, in fighting off the virus.

It was with this mindset that I read this op-ed in the New York Times featuring an interview with Lat, who recently spent six days intubated due to COVID and emerged to tell his story in many forums.

But this particular telling of the story, on the op-ed pages of the New York Times (The One Kind Of Distancing We Can’t Afford) grabbed me differently than others. It was about the way folks wanted to psychologically distance themselves from Lat.

They wanted to be different from him. To prove to themselves that they were not at the same risk.

The op-ed writer, Jennifer Senior, reacted the same way I did — and many of you likely are, after finding two of her doctor/nurse friends saw a 50-year-old woman die from COVID:

I, too, am a 50-year-old woman. As I listened to their stories, I had to stifle the same unlovely impulse. “But did your patients have a pre-existing condition?” I wanted to ask. “Were they fighting cancer, were they smokers, were they already floridly unwell?”

Nobody, but nobody, wants to believe they are at risk. We are all smarter than average.

Ms. Senior sets up the background regarding Lat, writing:

For Exhibit A, look no further than the Twitter account of David Lat, the 44-year-old lawyer, legal recruiter and founding editor of Above The Law, an immensely popular blog. Lat was diagnosed with Covid-19 in mid-March, and he’s tweeted about it ever since, save for the chilling stretch during which he was on a ventilator. When he returned, he posted a thread exploring the reasons some people die from Covid-19 while others suffer not at all.

This part is well known by many, as he first appeared in New York’s legal press and has since made numerous national appearances.

But the reactions of others to him is what really jumped off the page at me, for it went directly to something I’d known for decades about jurors when trying cases, yet never appreciated in myself:

He was suddenly pelted with queries about his own health. People were subtly probing to see whether there was a hidden reason he’d fallen ill.

It appears that Lat’s own friends were acting the same way as many jurors, which is to say, they were acting as humans subconsciously worried about self-preservation. They were looking for the reason that they would not have the same bad luck that Lat had. They were different. They had to be.

Lat went to say:

“Maybe I’m reading too much into things,” he replied, “but I received a number of responses that seemed to latch on excitedly to the mention of my exercise-induced asthma.”

And yet, he was exceptionally active, likely far, far more so than the average person. By orders of magnitude:

That he ran two New York City Marathons with this asthma in his 30s — and did high-intensity interval training three times a week until he fell ill — didn’t move a number of his followers. (The bluntest response: “Asthma is still asthma, waiting to knock you out, and any severe respiratory illness reveals the fundamental weakness of your lungs.”) Nor did the fact that Lat was healthy in every respect: normal blood pressure, normal weight, didn’t smoke, barely drank.

We all want to be different than that other poor fellow who was hit by the car or the victim of malpractice. We want it badly. But we aren’t.

There probably isn’t much we can do about that, as I think this is fundamental to human nature, and something I learned about others many years back.

But the least we can do is recognize it in ourselves.

 

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.