By Nicole Clark, Esq., Trellis Research
A Lawsuit Pandemic? The Oncoming Waves of Coronavirus Litigation
The past two decades have shown us that catastrophes and economic downturns can unleash tidal waves of lawsuits. After the attacks on September 11th, we witnessed a flood of filings that tested the limits of real estate insurance and health coverage policies for businesses and first responders at Ground Zero. Similarly, the Great Recession brought lawsuits against major financial institutions, claims alleging investors and regulators had intentionally been misled for years. What legal actions will the coronavirus pandemic bring?
Coronavirus Enters the Courts
As of May 19, 2020, 1,155 coronavirus-related complaints have been filed in federal and state courts across the United States. New York and California lead the nation with the most filings. However, unlike the Great Recession or the attacks on 9/11, the legal implications for the COVID-19 pandemic are different in their breadth and in their scale. These implications are raising new questions about the meanings of negligence, causation, and liability, terms that had previously been defined and adjudicated in contexts of normality. But what happens when a pandemic creates a new normal?
The types of lawsuits sparked by the coronavirus pandemic can be grouped into three broad categories:
- Labor and Employment Claims: Employees have started filing personal injury lawsuits and workers compensation claims against employers, alleging unsafe working conditions during the coronavirus outbreak. The plaintiffs range from nurses to retail workers. They claim that they contracted COVID-19 because their employers failed to fulfill their duty of care; they did not provide workers with protective gear, enforce social distancing measures, or adequately sanitize the workplace. Defendants have responded by deflecting legal liability, claiming that it is impossible to determine exactly how someone contracted the virus. (How can one show that the lack of personal protective equipment caused an employee to have contracted the virus? That the harm arose out of workplace activity?)
- Business to Consumer Claims: Consumers have demanded that companies ranging from airlines to gyms to ticket vendors issue refunds for coronavirus-related closures and cancellations. In a series of class action lawsuits, consumers have alleged that these businesses violated contractual agreements and consumer protections by continuing to charge membership fees for services that have been temporarily halted. As these cases move through the courts, plaintiffs will have to navigate the small print of those contracts, some of which include arbitration agreements or pandemic-related provisions.
- Business to Business Claims: A variety of businesses have filed lawsuits against insurance companies, claiming they have sidestepped their coverage obligations for business interruption policies. These lawsuits are testing the wording of these policies, which were written to cover direct physical loss or damage. According to the insurance companies, the policies were designed to address losses due to a fire or a burst water pipe—not a communicable disease. In fact, after the SARS outbreak, many insurance policies included provisions to exclude any fallout or losses from a virus.
But even this breakdown feels like a broad simplification. It overlooks all of the wrongful termination, employment discrimination, and federal WARN Act claims filed by laid off employees. It does not account for all of the prison confinement condition complaints or stay-at-home order challenges, by far the two largest types of claims filed thus far.
A Shifting Trend: The Effects of Coronavirus on Filings in Los Angeles County
Still, we can take a closer look at these categories. The largest number of coronavirus-related insurance claims have been filed in California. In fact, insurance claims represent fourteen percent of all coronavirus-related filings across the state; one of the state’s largest categories of filings, just behind stay-at-home challenges. A majority of these claims are for declaratory judgment under the Civil Authority Coverage provision of their ‘all-risk’ insurance policies. A large number of these cases have been filed in the Superior Court of Los Angeles, a venue that has been historically dominated by personal injury and employment claims.
The percentage of insurance-related claims filed in the Superior Court of Los Angeles has experienced a downward trend since 2011. To give these figures some perspective, consider San Francisco County. Broadly speaking, the total quantity of insurance claims filed in the Superior Court of San Francisco is much lower than in Los Angeles. However, insurance claims have represented a larger percentage of the total number of the venue’s filings. Despite these differences, the Superior Court of San Francisco has also witnessed a steady decline in its percentage of insurance-related claims. As hotspots for recent coronavirus-related litigation, we can expect to see changes in the trends over the next year.
This Is Just the Beginning
The number of coronavirus-related filings will continue to rise for the next two to three years —perhaps the next decade. Uncertainty abounds in terms of how judges will handle these cases. This uncertainty is compounded by the decisions of public policymakers, who are working to reconfigure the legal landscape. California Governor Gavin Newsom, for example, issued Executive Order N-62-20, which mandates that “[a]ny COVID-19-related illness of an employee shall be presumed to arise out of … [their] employment for purposes of awarding workers’ compensation benefits.” Other states have already started imposing immunity measures for health-care institutions and nursing homes, measures designed to protect them from liability for coronavirus-related deaths. At the federal level, Congress is contemplating its own liability shields for businesses, with Senator Mitch McConnell advocating for broad liability protection as part of any future coronavirus legislation.
What is clear, however, is that the rulings from the first wave of coronavirus-related cases have the potential to break new legal ground. The lack of legal precedent for catastrophic events and the massive scale of the coronavirus pandemic will bring together case law and legal concepts (such as force majeure) that have not received widespread attention in decades.
The few rulings that have already trickled through the courts evidence narrow interpretations of legal matters. When asked, for example, whether or not COVID-19 particles can cause direct physical loss or damage to a property, one federal judge in New York ruled no, stating that the coronavirus “damages lungs. It does not damage printing presses.” So far, it looks like the potential for new legal ground remains just that—a potential.
Nicole Clark, Esq., is the CEO and co-founder of Trellis Research . She is a Business litigation and labor and employment attorney.
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By Phillip Maltin, Esq., Raines Feldman, LLP
People want to catch liars. In fact, some professions put a premium on that skill: law enforcement, insurance, human resources, and law. For lawyers, the ability to expose deceit helps in case selection, deposition, and trial. To learn the skill, many lawyers look to the “science” of body language. However, body language is a field packed with pseudo-science, some of which is unintentionally amusing. Consider the G20 summit in 2017, when Donald Trump and Vladimir Putin sat next to each other while displaying peculiar hand gestures. Trump held his fingertips together (between his legs) in the shape of an inverted triangle. Putin sat with his elbows resting on the chair arm (hands in front of him) with his right index finger pointing to and entering the closed-fist of his left hand. Many body language “experts” identified these as sexual symbols, with Trump flashing a female symbol, and Putin a male “penetration” symbol. While science can be entertaining, here science is absent, as it is in most of the claims popularly made about body language and deception detection. Science has uncovered no one behavior that signals dishonesty, though the mythology linking behavior to deception, and dominance, persists. The desire to determine by behavior alone when a person is lying is nothing less than the will to read minds.
The folklore claiming liars have universal “tells” or dishonesty signals is difficult to overcome. No one behavior denotes dishonesty across all cultures and all circumstances. However, some actions can indicate that a person is lying. For example, liars can appear nervous. (DePaulo, et. al 2003.) They can use less hand movements to illustrate language (perhaps a sign of discomfort). They sometimes take up less of the conversation, make less sense, and appear less likable. (Id.) These cues are generally weak. In fact, recent research concludes that deception cues scientists sometimes identify, and find “highly significant in one study . . . vanish or even reverse in the next.” (Levine 2018.) Moreover, truthful people can appear dishonest, particularly in depositions and at trial, when they feel nervous.
In England, scientists Thomas Ormerod and Coral Dando wished to test which method is more effective at identifying deception: suspicious signs analysis (meaning body language interpretation) or controlled cognitive engagement (or questioning techniques). (Omerod et al. 2015.) They trained one set of security agents at international airports in Europe in suspicious signs analysis, and another in controlled cognitive engagement. They then recruited “mock” passengers to try to pass through security undetected. These pseudo-travelers received an apparently valid plane ticket and a brief but deceptive cover story. The researchers promised a financial reward if the mock passenger could deceive the security agents. The study found the agents trained in questioning techniques were 24 times more likely to catch the liars. They detected 66 percent of the phony travelers, while the agents trained in body language found only 5 percent.
The READ System
The “READ” system is a questioning and observation technique for exposing liars. Each letter in the name refers to a necessary step in the process of drawing from people the best information of the highest quality when questioning them. The best way to uncover a lie is to (i) Research—prepare, know what happened and know your witness or “target”; (ii) Examine—question well, strategically reveal significant information target is unaware that you know, (iii) Analyze—evaluate answers for illogic and behavior for “hotspots” of emotion or seemingly meaningful clusters of behavior; gently press to understand what’s behind them; and (v) Doubt—continue to question to uncover information, not to confirm preconceptions; conclude a person is lying only when substantial evidence supports that conclusion.
The American President, Abraham Lincoln, famously said, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” Lack of preparation makes a questioner uninformed and clumsy. It causes unfocused inquiries that often challenge the questioner’s self-confidence, waste time, and uncover little useful information. In contrast, people who prepare, and observe the details, can uncover unexpected evidence that can help catch liars. Each situation calls for unique pre-questioning preparation. The creativity in catching liars starts with thoughtful preparation.
For example, while on vacation, a father took a family portrait using a digital camera. He arranged his family, set the timer, and got a photo. He had placed his camera bag, including his wallet, cash, credit cards, keys, and iPad, several feet behind the family as they stood for the photo. When he turned around, the bag was gone. The father searched the area. It then occurred to him that he might have caught the thief on camera. He looked at the photo he took of his family and saw a person grabbing his things in the background. Police found the thief in the area within minutes.
Successful questioners begin by exploring unmapped areas where helpful information may lay hidden—sometimes in plain sight. Trying to catch a liar means getting out of your chair and looking for information. Answers come through effort, information, and vigilance.
Effective questioning is at the core of deception detection. A well-formed question comes from practiced listening and polished thinking. Yet, most people lack the skill to form good questions. We’ve all seen these bad communicators, some of whom question people for a living, like lawyers, law enforcement agents, human resources executives, and insurance professionals. Worse, research shows that professionals in fields calling for nimble questioning often have unfounded confidence in their ability to identify liars. The talent to artfully question others is indispensable to uncovering lies, and most people don’t have it.
Gathering information is easier if the questioner encourages people to talk. Here’s how:
Lower The Witness’s Anxiety. Calm an anxious witness and gently reinforce the need to cooperate.
Preserve An Open, Curious Mind. Let curiosity the inquiry. A successful investigator must curb preconceptions before the interview starts. Early conclusions are often inaccurate. The questioner must search for the truth, not for evidence confirming her suspicions.
Listen. Listen to and understand every answer before asking the next question. Otherwise, information passes “in plain sight” and investigations fail.
Question With An Even-Temper. Display an even temper. Angry people often lose their advantage. Moreover, anger and emotion disrupt the process. Browbeating a witness means the questioner has lost control.
Start with Open-Ended Questions. Begin with a question designed to invite a broad description of the event under inquiry. Good questioners want as much information as they can get. They do this by keeping people talking with open-ended questions. Here are some examples: “tell me what happened,” or “what happened next,” or “what did you do?” Research suggests the less words needed to answer a question, the easier it is to lie. (Frank et al. 1997.) Lies make less sense than the truth. Liars seem less certain of their story, and their stories are less plausible than the truth. (DePaulo 2003.)
Strategically Withhold Information; Tactically Disclose It. Time your disclosure of information. Never begin a subject by telling the “target” what you know. Ask first what the “target” knows, and exhaust that person’s information before revealing what found during your pre-investigation research. (Par Anders Granhag et al. 2012.)
The most comprehensive research on dishonesty is a meta-analysis covering 120 studies and 158 cues to deception. (DePaulo et al., 2003.) It reveals that most behaviors bear a weak connection to deception, if any. Subsequent research confirms that people do better at naming behavior associated with dishonesty, than they do at catching people in a lie. (Hartwig et al. 2011.) Maria Hartwig, a researcher in New York, observed a “general tendency for cues to be more strongly related to perceived deception than actual deception.” (Hartwig p. 651) People appear to know what to look for but not how to find it.
While behavior as a deception cue is less reliable than words, it can draw the observant questioner into areas needing inquiry. For example, a connection exists between lies and a lack of cooperation. Liars are less positive and pleasant than truth-tellers. They are more tense and nervous. They speak in a higher-pitched voice. Their pupils dilate. (DePaulo et al. 2003.) These criteria are nuanced. They should invite suspicion, curiosity, and further inquiry.
Research consistently confirms that just about everyone correctly identifies liars at the level of chance. Moreover, people who think they are good at spotting liars tend disbelieve the truth, but are no better at catching liars than anyone else. Why is this? “Part of the problem is that people who stand falsely accused of lying often exhibit patterns of anxiety and behavior that are indistinguishable from those who are really lying.” (Kassin et al. 1999.)
To protect against confirming a bias, the lie-catcher must doubt her conclusions, and search for evidence that confirms the lie or establishes the truth. The questioner must use doubt logically, tactically and consistently, and resolve all suspicions in favor of honesty. Do not presume dishonesty. The skillful questioner uses facts. She is circumspect in her conclusions and humble with her skill. Require robust, logical and lasting proof before concluding a person is lying. Anything less than sturdy evidence is too weak.
Phillip R. Maltin is a partner and department chair at Raines Feldman LLP, in Los Angeles, California. He advises on employment and commercial law, supervises litigation in both areas, and speaks on deception detection and workplace investigations across North America and England. firstname.lastname@example.org
Lee Brenner, the Century City Bar Association’s 2020 Entertainment Lawyer of the Year and chair of Venable’s Entertainment and Media Litigation Group, discusses his practice, his commitment to defending First Amendment principles, and his passion for trial.
Your practice is focused on entertainment and media litigation. What drew you to this area of law?
Most of my work involves business disputes in an entertainment context, which means anything from idea theft claims, and copyright and trademark infringement, to breach of contract, fraud, or right of publicity cases. I’m a third-generation trial lawyer and grew up listening to my grandfather’s stories about trying cases back in the 1940s. He could talk about trials all day.
So, from the outset of my own career, I couldn’t wait to get into the courtroom, to examine witnesses, and argue cases. To this day, the most rewarding aspects of this job are building the best possible case for my client in court, performing quality cross-examinations, sticking to principles, and making clean arguments. It’s even more gratifying when opposing counsel does the same. That’s the stuff of real lawyering.
What types of cases do you find most challenging or interesting?
I really like so-called idea theft cases, which tend to dovetail with copyright infringement cases, where someone says, “You stole my work and you used it in your program.” Plaintiffs in such cases often forget or are unaware that an underlying principle of the Copyright Act is that we’re supposed to inspire each other to create new works or to build on existing ideas. Obviously, you can’t take someone’s expression and call it your own; the Copyright Act tries to strike a balance with that. But ideas are free—no one owns an idea, and no one owns a fact.
My favorite part of these cases is playing detective and trying to really figure out where an idea came from. Sometimes I’ll consult an expert to establish the origin of an idea, but increasingly I just figure it out myself. It’s not unusual to find that a certain idea was first played out back in a pamphlet in 1901, then appeared again in a detective magazine in 1946, then inspired someone to write a comic book in the 1970s, and then became a major motion picture in 2020. It can take quite a bit of old-fashioned detective work to figure all that out, but it’s one of my favorite things to do and it can be very effective. That said, there are some plaintiffs—I call them “true believers”—who will insist that any similarities they see between their work and that of others are the product of plagiarism, and no one can convince them otherwise. I’ve had cases where I have shown through forensic discovery that my client was working on an idea years before the plaintiff claims to have come up with theirs. Yet even hard evidence is not enough to convince some “true believers.”
What advice would you give to other lawyers handling these types of cases?
If you are in the right, don’t settle. I learned a lesson early on in my career that when you settle those cases, even for a nominal amount, it can harm your writer/creator client because people will believe that your client must have stolen the idea—otherwise they wouldn’t have paid out. As a very young lawyer, I did once settle a case for a very low sum. Exceedingly low. The rationale was that litigating the case would have been way more expensive and time consuming. But even though the settlement was confidential, the fact of the settlement itself (but not the low amount) was instantly leaked to the media, and the writer in question was raked over the coals and her reputation suffered. In defending these cases, you have to remember that the artist’s reputation is at stake.
You have performed a considerable amount of pro bono trial work involving First Amendment issues. Why are these cases important to you?
A major thread that runs through my media work is the defense of First Amendment principles, and this translates into my entertainment work too. People often forget how important entertainment is. A lot of people get their news or facts from docudramas and other entertainment programs, even parodies. Entertainment is not just a diversion to get our minds off hard things; it can stimulate discussion about issues of great importance to our country and the rest of the world. Entertainment programs can also offer an important historical perspective. So, the First Amendment permeates everything. In particular, the First Amendment underlines our right to add to the marketplace of ideas and to speak and comment about newsworthy things. In my view, that is a principle worth defending, perhaps above all else.
As chair of Venable’s Entertainment and Media Litigation Group, do you have a vision for how you want the practice to evolve and grow?
For me there’s only one way to go, and that is to create leaders in the field. You have to take the training wheels off and give young lawyers enough freedom and leeway to make their own decisions (and mistakes), while at the same time backing them up. What I try to do is when a lawyer comes to me for a recommendation, I ask them to come up with their own. Nine times out of ten their recommendation will be the right one. If it’s not, we’ll talk it through. I also make sure to send lawyers into court as soon as they are ready. When I was a first-year associate, I asked to do every hearing I could. Similarly, I would jump at every opportunity to take a deposition. I encourage our young associates to do the same. Fortunately, the younger generation is so much smarter in a lot of ways than we were. But it can be a punishing job; you really need to have a passion for it, and most of all you have to develop a really thick skin. If a lawyer can’t picture herself or himself standing in front of a jury arguing a case, then they simply shouldn’t be a litigator.
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