By Emily Field

Law360 (January 22, 2021, 4:05 PM EST) -- Plaintiffs attorney Benedict Morelli of Morelli Law Firm, who represented comedian Tracy Morgan in his suit over a 2014 limousine crash, recently spoke with Law360 about his thoughts on holding remote trials and bringing litigation against nursing homes and health care workers during the coronavirus pandemic.

Morelli represents plaintiffs in medical malpractice, personal injury and product liability suits, and currently represents the family of a New York City woman who died in 2019 after being struck by falling debris from a Manhattan building. He spoke with Law360 about why he's against holding jury trials over Zoom, as well as his reluctance to sue health care workers struggling under pandemic conditions.

This interview has been edited and condensed for clarity and brevity.
 
How have you handled the transition to remote work?

In March, I knew that we had to go about things differently and it was my responsibility to protect all of the people who work for me, younger and older. And most people in my office are fairly young people. I said to them, I'm not going to jeopardize your health. I'm not going to do that.

So we figured out right away how we're going to work remotely. We were very fortunate because we were already fairly paperless in our practice. We're pretty much up to date. And because a lot of the people who work for me are young, they're very literate using computers and digital. And they don't have to be taught that much. So we were able to really transition. I said now we're going to be doing this from home. I'm going to set up a Zoom conference call every weekday at 10 a.m.

And we all speak to each other. How are you doing? How's your dog? That kind of thing.

My people have said to me that they've found that to be very helpful to them psychologically and emotionally. It's given them an opportunity to speak with and see their co-workers. You just have to be nimble. You have to change it up. And if you can't change, you die.

What have you learned from shifting to remote work?

I think that we learned that we can. We could do a lot without leaving our homes. We can't do 100%, because there are still certain things that we need to send to government officials or to the court system in hard copy with an original signature. When we settle, let's say, a wrongful death action, we need someone to go to the office for a day, but when they go, they go one or two at a time, three at a time, and there's no risk to them, well, let's say very minimal.

And so most of the time we're working remotely. I found that all of us do not have to be in the office all the time.

What are your thoughts on the feasibility of having jury trials over Zoom or other video conferencing methods?

You're not going to be able to select the jury and be comfortable doing that by Zoom. And why is that? Well, I can mention a few things that come to mind.

First of all, they're at home, so they have distractions that they would never have in the courtroom.

Second, you cannot see their body language the same as you can see it when they're in person.

Third, it's going to be much more effective [in person] because as a plaintiffs lawyer, I always have the burden of proof under the law, so I have to prove the case. And the defense doesn't have anything to prove.

So do I want to do that with a bunch of boxes on a screen, or do I want to stand in front of a jury and look at them? During jury selection especially, I watch them and listen to them when I select the jury. So I'm not going to be able to get the feedback that I need to get.

Also, juries take it much more seriously when they have to go to the courthouse and be inconvenienced.

Even if you're selecting a jury and the jurors are all wearing masks, how does that work? I mean, it's difficult to tell what someone's thinking if you can't see their whole face and their body language.

And it's one of the reasons why I don't see jury trials starting up again before the fall. Before a lot of people are inoculated, I don't see people being comfortable going about their business without worrying a great deal.

I've coined a phrase during this time, "We've lost the hammer." Plaintiffs lawyers have lost the hammer. Because the defendants, mostly insurance companies, know that we can't force a trial on them. And because they know there's going to be a much longer wait for a trial.

If your client wants money and you want money, you're going to take a much lower amount. So it's been spectacular for insurance companies because they don't have to pay right away or sooner than they want. And if they do pay, they're getting a huge discount, and they've said this to me.

Other than that, I felt very comfortable about the way we've adapted. We've having some conferences with our clients when we talk to them about a settlement amount or when we're speaking to them about an upcoming deposition; we do it by Zoom, which is great, they don't have to travel.

But let's face it, we're trying to adapt to something that's unnatural to us. Because we can't shake hands. We can't hug. We can't go within six feet if we're using our brain, we can't see each other without masks, if we're using our brain.

It's a big difference, so if any lawyers are telling you that there's no difference between what's going on now and before the pandemic, it's absolute hogwash. It's not true. Now, defense lawyers like it much better. Because they don't want plaintiffs lawyers talking to jurors in person.

Have you seen any changes in the types of claims that plaintiffs are bringing during the pandemic?

I've seen two or three different things. One is, many fewer claims. Because for the first months, nobody was out and about. As a matter of fact, even China had good air.

So we know that people weren't out and about for three months, six months. They were in their homes and apartments, not really doing much, so they weren't having a car accident. There was no truck crashing into their car. They weren't being malpracticed on, because they weren't going to the hospital, except if they had COVID. And so I think that there were many, many, many fewer claims during that period of time.

It has started to pick up and it's going to pick up even more as we go further and further into the vaccinations and things like that, because people are trying their best to get back to some sort of normalcy.

I did see a big change in that in 2019, before all of this happened, we had an influx of very substantial cases, one after another, against big companies where people were badly injured or killed.

And now we're litigating those cases, doing the discovery period. When we get further on where we have to get a trial date, that's when it's going to get a little messy, because we have trial dates in some cases, but they keep getting moved further and further away.

What are your thoughts about litigation against nursing homes and health care?

It's interesting because we do a fair amount of nursing home cases. I take a commonsense approach. During the first six months of this when New York was the hotbed of the country, hospitals and clinics were asking even retired nurses and doctors to come in and help out. They came from various parts of the country and left their families to stay in New York and help out.

I think you have to look at those cases differently. I don't think and never have thought that you just bring a case because you can. I bring a case because I can and because I believe in it.

So we have health care workers struggling, to run from one sick person to another. Understaffed. Wearing garbage bags. And fearing for their own health and lives. Not being able to go home and see their kids because it's too dangerous. I'm not bringing those lawsuits. I'm just not.

I wrote an op-ed about this. And a number of my brethren said, "How could you say something like that as a plaintiffs lawyer?" I said, "Well, I'm not only a plaintiffs lawyer, I'm a lawyer and I'm also a person and I'm a person in the community. And I don't think that you take advantage of people when they're struggling to do the best they can, it isn't a normal circumstance."

Nursing homes are a different story altogether. Nursing homes oftentimes just don't follow the rules. And they put a lot of people in there.

I know because my mom, unfortunately, was in a nursing home before she died a number of years ago. And I do a fair amount of those cases, but I take the same attitude: If in fact there's an influx of people and they can't handle it, you could say, they took in the people. But there was a period that the government was telling them what to do. So do I have to factor that in? No. Do I factor it in? Yes. I'm not a big fan of suing health care workers, nurses, doctors, whatever for pandemic-related errors, I'm not going to even call it malpractice errors. That's my view. And so I have not taken those cases. I have passed.

Have you had any notable or funny Zoom moments?

I am on two different committees in New York state, one where I interview lawyers who want to be appointed judges, and in another committee I interview judges who want to be appointed to the appellate court. And often, because a number of the judges are not that young, they're not as astute — and I have to admit, neither was I at the beginning.

But a lot of times we'll be interviewing somebody and we can't see the judge. "Can you hear me?" "Yes, we can hear you, Judge, but we can't see you." So the head of the committee will say, "There's a little icon down there on the bottom that says 'video.'"

Before we had as many [cell] towers as we have now, it was always, "Can you hear me now? Can you hear me now?" Now, it's not only "Can you can you hear me?" but "Can you see me? Can you see me?"

It's funny because these are people who are making decisions that change our lives. But it's not because they're not smart. It's that we were not used to this technology.

But before we got used to this, it was a comedy of errors.

One other thing that I remember is doing a deposition. When you take a break for 15 minutes, what do you have to remember to do? You mute yourself. Now the lawyer is talking to his client and I can hear him, and he thinks he's talking to the client in private. And I'm saying, "I can hear you."

So that to me was very, very funny. And so when we got back on, I said, "I'm not going to use anything that I heard, but I'm going to tell you, when you do this, you've got to do it yourself."

--Editing by Brian Baresch.

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