Throwing out the case just really doesn’t sit right with me, regardless of how accommodating he was. In fact, I would be perfectly happy if he wasn’t accommodating and held the lawyer in contempt of court.
I don’t disagree, but holding the lawyer in contempt doesn’t get the plaintiff paid any sooner, which I would assume would be her primary concern.
Well, I would be curious if this goes up for judicial review. IANAL but ISTM cases should be thrown out on their own merits not based on lawyers’ courtroom conduct.
Just to be clear, although I wonder why the lawyer didn’t handle the matter differently, I don’t think he was just being an asshole.
The New York Daily News reported Friday that Brooklyn Judge Lawrence Knipel tossed the case after attorney Howard Greenwald said he could not breathe wearing the mask in the newly reopened court.
“I want the record to reflect that I am speaking with great difficulty,” Greenwald, 68, told the judge. “I want to the record to reflect that I am sweating profusely from the effort.”
He said, “I just can’t do this,” according to the transcript.
“I don’t contest the rule,” he said. “I just am not physically able to comply with the rule to do my job as a lawyer.”
But that still leaves the question regarding why he didn’t agree to the accommodations offered by the judge, like calling in another lawyer from his firm.
I find it hard to believe that if he couldn’t breathe in his mask, that in all the time to prepare for a trial, finding a mask to accommodate his special needs wasn’t on the list.
What did the attorney do that would constitute contempt?
The attorney WAS wearing a mask for the hearing, but said it was causing him breathing difficulties and he would be unable to conduct the trial masked up (he literally said he was “physically unable to proceed”). He’s not saying he won’t; he’s saying he can’t. That’s not contempt. (Although my reading of the transcript posted by DMC suggests the judge was sceptical of the assertion, he is not outright accused of lying.)
If the attorney is unable to carry out his duties, even with whatever accommodations the judge can offer, what other options are available? I’m not sure what New York rules of practice are regarding a continuance on the eve of trial.
Yeah, the judge never accuses him of lying about his condition. For those who don’t want to read the whole thing, I attempted to pull out relevant portions showing where the judge was coming from and why as well as the offer to let another lawyer come play sub.
A bunch of rambling about how social distancing and the large courtroom forced the lawyer to have to project his voice 70-80 feet, causing him to become lightheaded and have to sit down.>
Content Snipped
The Court: So, I am telling you also, and I want to caution you that if you refuse to go forward I am going to have no option but to dismiss the case. So think about it. If you want a smaller courtroom like this size, maybe it is easier to work in, you got it.
More snipping
The Court: So I am going to, unless there is another lawyer in your firm who can come in and substitute…
Mr. Greenwald: No, your Honor.
The Court: So…
Mr. Greenwald: I physically can’t proceed and that is what it is going to wind up. Even if you order me to go ahead, I can’t do it physically.
The Court: Okay. Okay. So, even in a smaller courtroom? Even in a smaller space?
Mr. Greenwald: Your honor, look at me. Look at me.
The Court: You look fine to me. I am not a doctor, but…
Mr. Greenwald: I am dripping wet here, your Honor.
The Court: Okay. It hurts me to do it, but case dismissed. I will give you an order shortly.
He showed up in court wearing a face shield but was told that that wasn’t compliant.
Simple due diligence should have been done on his part to know this ahead of time.
It’s not like that is news, though. New York City health authorities have been saying for quite some time that a face shield isn’t an adequate substitute for a mask [PDF!]. If you are going to do something non-standard, you talk to the judge or the court administrator ahead of time, not just show up. If he really does have medical issues with the mask, the judge might have accepted a doctor’s note and worked out some other kind of accommodation for him (or he would have had time to consult the Chief Administrative Judge up in Albany or other appropriate parties), but again, he didn’t do anything like that.
The headline is misleading. The plaintiff didn’t lose the case. Rather, the judge dismissed the case without prejudice, which means the plaintiff can re-file the case with a different lawyer. The judge did not punish the plaintiff for the actions of her attorney. It seems to me the judge did the right thing to preserve both the safety of the courtroom and the rights of the plaintiff.
Judges are reluctant to cite lawyers for contempt. In this case, the lawyer didn’t exactly refuse to follow the judge’s order to wear a mask. He said that he couldn’t breathe properly while wearing a mask, and the judge then decided the case couldn’t go forward. Now, I think it’s ridiculous a year into the pandemic for a lawyer not to know that masks are required in court (as they are in most places where people gather). But it’s not like the judge ordered the lawyer to wear a mask, and the lawyer responded by saying, “No, you can’t make me do that.”
I do hope the lawyer waives all fees for this case, and even pays the court costs. The plaintiff shouldn’t have to pay a dime. And if the lawyer does insist on being paid, I think the plaintiff should report him to the bar for a breach of ethics.
Be careful about imprecise words like “thrown out”. The plaintiff’s cause of action was not prejudiced. The case was dismissed, not the cause of action.
I certainly don’t know the details of why the judge chose to dismiss without prejudice while also inviting the plaintiff to refile versus some other remedy that would have left the case active on the docket. Presumably something to do with their detailed rules of procedure.
If this was the least bad option on offer within the rules to deal with the uncooperative attorney without harming the plaintiff more than minimally necessary in doing that, we have a winner. Admittedly not a very satisfying winner, but a winner nonetheless.
So, it’s time for the jury to be picked, lawyer refuses to mask or get another lawyer from his firm to come in. Lawyer is put in jail for contempt, or fined for each day they don’t comply or whatever. Now what happens to the case? Punishing the lawyer doesn’t solve the problem of what happens in the case, which had been ready to proceed to trial.
Sometimes a lawyer’s conduct ends up causing harm to their client’s case. Sometimes that’s how it plays out. The lawyer should immediately be on the phone (and should already have been) to their malpractice insurance to get substitute counsel. But even if the lawyer doesn’t do it, the plaintiff should be able to, to mitigate the harm.
I don’t believe that one wouldn’t know, at this point, that masking was going to be a problem for them.
Like I said, delaying the case is a perfectly reasonable compromise
The lawyer already indicated he would not mask and he would not get a sub. What other option is there?
Seriously? Delay the case for five months until the mask mandate is over. Offer an earlier slot if the plaintiff agrees to switch lawyers.
How does the judge know that the mask mandate will be over in five months? Mandates have been extended before; they may be extended again. What then?
Right now there are a LOT of people waiting for cases to proceed after the delays of the past year. Per this article, this was one of just nineteen civil cases going forward this week in all of New York City. “We’ll get you a slot whenever you get a lawyer willing to comply with the mandate and push other people even farther back” is fair to whom, exactly?
(This case has already been pending since August 2017; is it fair to defendant and his lawyer to keep extending it? Who is going to be paying the defendant’s lawyer for the two days he spent in the courthouse while plaintiff’s lawyer argued about whether to wear a mask?)
He doesn’t but it’s a good guess. Judges are allowed to make reasonable guesses on how long a delay is required. Happens hundreds times a day.
But what if he is wrong? Or perhaps the fact that the guy is having such difficulty breathing through a mask is indicative of other health issues in a 68-year-old that are going to prevent him from going forward in five months either; is the judge allowed to make a reasonable guess about that?
In any event, in reading the transcript there are several points at which the judge seems to think he has caught the lawyer out. On page 9 of 13, lines 7-20, Mr Greenwald denies he spoke to the judge the previous day, then admits oh yeah, he did. At line 23, the judge notes that Greenwald talked to His Honor about timing of witnesses and so forth but never mentioned masks as a problem, even though the mask was allegedly a huge problem that day. At several points, the judge notes that Greenwald seems to be speaking just fine, he’s eloquent, there’s no evidence of impairment. My overall impression is that the judge doesn’t think the mask is the actual issue.
They delay it again.