A Look Ahead at Personal Injury Litigation in the Wake of the Pandemic
As the pandemic continues, there will no doubt be increasing pressure to conduct various proceedings, formally (such as court conferences) or informally (such as meetings with clients and experts).
April 15, 2020 at 11:00 AM
8 minute read
As a result of COVID-19, there have been dramatic changes to our civil litigation system. While many courthouses have closed completely or to a great extent, efforts have been made to conduct remote or virtual depositions as well as court conferences in some venues. Recognizing these obstacles, the Gov. Andrew Cuomo issued Executive Order No. 202.8, suspending statutes of limitations, and Chief Administrative Judge Lawrence Marks issued administrative order AO/78/20, suspending the filing of papers in all but the most essential matters. Indeed, a cottage industry offering virtual depositions and conferences is in the process of developing, and the use of virtual technology for meetings via Zoom and Skype is becoming more commonplace. As the pandemic continues, there will no doubt be increasing pressure to conduct various proceedings, formally (such as court conferences) or informally (such as meetings with clients and experts). With respect to personal injury litigation and particularly in the medical malpractice arena, a "double whammy" of sorts has occurred, as it is more difficult not only to conduct depositions, but to gain access to medical professionals, particularly in certain specialties such as internal medicine, emergency medicine and infectious diseases.
We can foresee the plaintiff's bar pressing to conduct discovery and depositions in an effort to continue to pursue their clients' litigation rights and to pursue potential recovery, while the defense bar may feel that the inability to meet with their clients in person is an impediment to appropriate preparation. In New York, where there are no depositions of experts and current technology is rarely utilized in depositions, preparing for and conducting depositions by video may present a novel and uncomfortable proposition. We have already seen objections to video depositions of defendants on the ground that they may deprive the defendant of the ability to have an attorney at his or her side during the proceeding. It has been argued that there is a potential for abuse during video depositions (such as counseling the witness during the deposition) and that video depositions would unfairly limit an attorney's ability to have a private discussion with a witness (although the technology would likely permit that). In general, the pandemic has resulted in a fast-forward of sorts in many areas of society that may have already been slowly heading in a virtual direction, from fields such as banking and investment to more pedestrian areas such as grocery and other shopping and leisure communications. Indeed, the segments of society that had already started to serve their audiences virtually are the ones that have best been able to weather the pandemic, and companies like Amazon and Fresh Direct have actually prospered as a result. Similarly, in the legal arena, courts may recognize that in-person conferencing is not always essential and move toward virtual conferencing, a development that likely would have met with significant resistance and taken years to become accepted had it not been for the pandemic.
In New York, where litigation has by and large been suspended, the issue of a party refusing to participate in a particular discovery proceeding has not yet come to a head. Currently, there is no obligation to participate in a video deposition under CPLR 3113. One can envision that landscape changing when discovery deadlines are placed back into effect or before that point in time as the prejudice resulting from delays becomes more profound.
The area in which the right to certain procedural safeguards in the post-pandemic society may face the greatest tension is in the right and ability to conduct trial by jury. The right to trial by jury in New York civil litigation derives in part from CPLR 4104, titled "Number of Jurors," which states: "A jury shall be composed of six persons." While there is no requirement that jury trials be conducted in person as opposed to virtually, it would seem that much of the essence of what a jury trial is would be lost without the jurors' physical presence in the courtroom. The ability of a jury to evaluate credibility, the impact of demonstrative evidence and the ability of jurors to interact with each other would be lost or impaired in a virtual setting. Once the pandemic abates to some extent, there may nonetheless be jurors who need or want to comply with social distancing protocols. There may be particular groups with age or health concerns or both, who prefer or insist that they not be present in a courthouse at all, particularly if the immunity conferred by having the virus turns out to be short lived. These individual concerns may conflict with the societal concern about the sanctity of the jury trial system.
There are several possible options that may present themselves, each with its own set of disadvantages. One possibility would be to conduct a jury trial remotely or virtually. Theoretically, one might argue that procedural safeguards are preserved by such a process, although one could envision objections to a virtual jury trial on a number of logistical and legal bases. Certainly on a practical level it would be difficult for a court to ensure that jurors are giving their full and undivided attention to the proceedings. There is case law to the effect that the lack of attention given to a proceeding by a juror may vitiate a verdict. See People v. Herring, 19 N.Y.3d 1094 (2012); People v. Franqui, 123 A.D.3d 512 (1st Dept. 2014). Another possible approach would be to reduce the requirement for participation as it applies to jurors over a certain age, although exclusion of a segment of the population older than 50 or 60 years old would seem to be antithetical to the notion that a jury should be representative of a cross-section of the community, not to mention that sections of the jury pool would be deprived of their right to participate in the process. See, e.g., Thiel v. Southern Pac. Co., 328 U.S. 217 at 220 (1946) ("The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community."). Perhaps for jurors over a certain age or those with health concerns there could be a waiver of in-person presence if the juror preferred that, but the interaction of jurors who were not participating in person might be ameliorated. A third approach might involve reducing the number of jurors to 5 or 4. As it stands, a court may allow a five-person jury on consent of all parties to a litigation. ("[W]here the parties to a civil case have not agreed to a trial by fewer than six jurors, a valid verdict requires that all six jurors participate in the underlying deliberations." Sharrow v. Dick Corp., 86 N.Y.2d 54 at 59-60 (1995)). Some states require only the vote of 4 as opposed to 5 or 6 jurors for a verdict, implying that a smaller number of jurors than 6 would suffice and there is no magic to New York's requirement of 5 out of 6. See Montana Code §25-7-403; Nevada Revised Statutes 16.030(4); Utah Rules of Civil Procedure Rule 48. One more aggressive approach would be to grant a trial preference or some type of expedited resolution mechanism in exchange for a plaintiff's agreement to waive certain procedural rights, such as agreeing to proceed with a fewer number of jurors. Such an approach would no doubt result in a challenge by the defense on the ground that the right to a jury trial has been abrogated or impaired.
The COVID-19 pandemic has disrupted many aspects of our society. Just as novel approaches such as social distancing have been required to combat the medical risk to the population, novel adaptations designed to combat the effect of the virus on our legal system may be suggested in an effort to preserve the basic structural framework for the resolution of civil disputes given the challenges that the pandemic has created. The right to a jury of one's peers is a hallmark of our legal system if not of the American way of life. While it may be tempting to sacrifice various procedural safeguards to expedite justice, we must be cognizant of the threats this poses to the rights of litigants and to what we have come to refer to as "justice".
Andrew S. Kaufman is a founding partner at Kaufman Borgeest & Ryan. Jacqueline Mandell, a partner, and Shannon Henderson, an associate, assisted in the preparation of this article.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllPreemptive Litigation: A Potential Approach for a Precise Situation
13 minute readLaw Firms Mentioned
Trending Stories
- 1'Largest Retail Data Breach in History'? Hot Topic and Affiliated Brands Sued for Alleged Failure to Prevent Data Breach Linked to Snowflake Software
- 2Former President of New York State Bar, and the New York Bar Foundation, Dies As He Entered 70th Year as Attorney
- 3Legal Advocates in Uproar Upon Release of Footage Showing CO's Beat Black Inmate Before His Death
- 4Longtime Baker & Hostetler Partner, Former White House Counsel David Rivkin Dies at 68
- 5Court System Seeks Public Comment on E-Filing for Annual Report
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250