Should undocumented Mexican and Guatemalan farm workers who cross our U.S. border illegally, work in New York illegally, then get seriously injured through the negligence of others, then file a personal injury lawsuit in New York against those others, then go back home because they can no longer work or afford to live here while they await their trial date, and then can’t get visas to get back to the U.S. for their depositions or trial, be allowed to give video-taped deposition and trial testimony from their home countries? After all, the general rule is that a plaintiff must present him or herself for depositions and trial testimony in New York where they filed the lawsuit. But still, should their cases be dismissed for failing to appear in New York when they can’t get visas to get back here, even if the visas were denied because they came here illegally to begin with?
This was the question I recently presented to a trial judge, and then to an appellate court. I argued that a “balancing of the scales of justice” required the court to allow the testimony of my injured migrant farm workers by video-conferencing from abroad. I argued that, on one side of the scale of justice, if testimony was allowed to be taken from abroad, both plaintiffs and defendants would have their day in “court”, sort of, and justice would be served, although there would be quite a bit of inconvenience to the parties and the Court, and of course it would be better to have the plaintiffs testify in person before the jury. On the other side of the scale, if the Court required plaintiffs to appear physically in Court in New York for depositions and trial, their claims would be dismissed when they failed to show up, no trial would be had, and no justice would be done.
In other words, on the one hand, there was a less-than-perfect forum for justice, but a satisfactory one nonetheless, and on the other, there is no justice at all.
The lower court did not buy my argument, and ruled, consistent with existing New York case law, that if plaintiffs did not show up in New York for depositions and trial, their cases would be dismissed. But, fortunately for my clients, the appellate court disagreed with that court, agreeing with me instead. The ruling was important enough so that the New York Law Journal and Reuters wrote up the case.. The full Court opinion can be read here.
Not that you would want to read it. Just saying . . . .
Email me at: email@example.com I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central and Syracuse NY Personal Injury Lawyers Michaels & Smolak, P.C.