The story of actor Michael Douglas and his stage-four throat cancer caught my eye when reading about an appearance last night on David Letterman, and I saw the comments of his enraged wife, actress Catherine Zeta-Jones:

Meanwhile, his wife Catherine Zeta-Jones is fuming at doctors for not diagnosing it months ago.

“It makes me furious they didn’t detect it earlier,” she told People magazine in its latest issue. “He sought every option and nothing was found.”

When people fume about the perception of bad medical treatment, they often turn to lawyers. And those lawyers will look at exactly what tests were done in the face of the complaints being made.

Now I have no idea if this will result in a medical malpractice suit. I haven’t seen the records and I merely opine based on press accounts. But anger is one of the great motivating factors for hiring counsel to investigate whether medical malpractice occurred. When folks aren’t angry, and they get apologies from medical personnel for instance, suits are less likely.

And that isn’t just my opinion. In a 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’), medical professionals are found to be increasingly agreeing:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs…

Now I presume that Douglas and Zeta-Jones are more than a bit comfortable, financially speaking. And any suit that might be contemplated wouldn’t be about the money. In fact, the money might be so small relative to their wealth that if suit were filed I could easily see it accompanied by a statement that any recovery would be donated to a charity.

And such a suit would not just deal with whether doctors acted reasonably. For even if there were departures from accepted care, they would still have to prove that the delay was medically significant. All I see from the story is “months,” so much is obviously unknown to the public.

One should not presume, by the way, that just because a celebrity (or his/her family) brings a malpractice suit, that a jury will ignore evidence and side with them.  After John Ritter died from an aortic dissection, a medical malpractice and wrongful death suit was brought. While some defendants had settled, some defendants refused. And it was a defense verdict despite the big name at the center of the suit.

In an editorial today regarding the BP oil spill in the Gulf, the New York Times decided to take potshots at lawyers and assume that they would breach their ethics. In doing so, they elected to act like the New York Post by simply ignoring history and accepting one long running newspaper meme:  No one ever lost a nickel by bashing lawyers, because when we defend ourselves we sound like, well, lawyers.

The context of today’s assult is the $20B in funds offered up by BP to settle Gulf claims, and management of the fund by Ken Feinberg. Feinberg has quite the recent portfolio, managing this fund, being the “pay czar” for companies that were bailed out by the government during the recession (from which he stepped down to become engaged here), and also managing distribution of an extraordinary $700M+ funds related to settlement of claims related to 10,000 responders to the September 11 attack.

So what did the Times do? In an editorial today it discussed the virtues of the new fund being run by Feinberg, and that this was preferable to lawsuits. The paper then went on to claim:

Given his reputation, experience, and the amount of money on the table, it is clearly in the interests of every victim of this spill to give this program a careful, unemotional look. We probably cannot expect the lawyers to act responsibly.

The Times‘ justification for this assault is the presumption that, if one is going to go through the BP fund, then one doesn’t need a lawyer. In so claiming, the Times displays either its utter ignorance of proving the elements of an economic loss, or it elects to turn a blind eye. Because all claims are not equal. Some are difficult and need experts. The shrimper with the W2 is one thing, and the new business owner who was making investments in the business at the time BP recklessly wrecked Gulf waters is something else. Proving that future loss won’t be easy.

And it isn’t just shrimpers and beach resort businesses that are hurt, because as they go down, so too do the brick layers and bread makers that depend on those people. An entire economy suffers, and proving the relationship to the oil spill won’t be simple for many. There will be a billion shades of gray for the manner in which people were affected by the spill.

Does the Times seems to suggest that Feinberg will simply pay claims without the expert analysis that’s needed in the evaluations? Will the  claims simply leap off the table and magically prove themselves to Feinberg without effort?

In one sense, this is like a trial on damages only, with liability already established. But you still must prove those damages to the finder of fact. Perhaps many of the claims are simple. Most assuredly, many are not. Only a fool would walk into the forum unarmed.

The outrageousness of the Times‘ lawyer bashing is brought home with the irony of Feinberg’s involvement. For he also oversaw the September 11 Victim Compensation Fund and has been, to nearly universal acclaim, an outstanding public servant. And that 9/11 Fund saw over 1,000 lawyers working as part of Trial Lawyers Care, representing most of those directly injured in the attack and the families of those killed. Those lawyers did so on a pro bono basis.  It was then, and remains today, the largest distribution of free legal services in the country, and I was a proud (albeit small) part of it. Nobody knows better than Feinberg about the extraordinary efforts put forth by the legal profession.

And yet, the Times merely assumes that, despite history to the contrary, lawyers will act unethically by giving advice that is contrary to the interests of their clients. I expect such crap from the Post, not the Times. Perhaps the usual editorial writers were away this week on vacation, and they left the interns in charge. For the piece surely wasn’t written by anyone with a lick of common sense.

♬Summetime. And the living is easy.♬

Except, of course, when you get back to work after some well-earned days at the beach and find your desk piled high with things to do so that you can actually help the people that you represent. Then the sunny days in the waves, and the wildly changing skies of the approaching storm disappear. As do the squeals of laughter from the little folks that you towed to the beach and the parks.

And not only is there work to do, but there is  a half-marathon trail race to plan for a few hundred of your nearest and dearest soon-to-be best buds.

Oddly enough, under those circumstances, blogging seems to fall off. But this blog ain’t dead. Not by a long shot. It’s just that its author has been a  bit busy playing, running, working and living.

I’m pretty sure that Mrs. NYPILB was happy I was away from the computer. As were Thing 1 and Thing 2.

And I know for sure the Things were thrilled to return to the scene of last year’s Great Tushy Event, when their mom had a butt-busting ride on a water coaster that sent her to the ER, and made us all contemplate the concept of assumption or risk.  Mrs. NYPILB, oddly enough, opted out of the water park this year, telling me I would save the money from her admission. She would go shopping.

But since I wrote about the butt-busting last year, I figured I ought to have some legal or consumer oriented blog posting from this last vacation.

So on the way out of town, when we stopped at the outlets to stock the ever-growing offspring up with duds for the coming school year, I stayed on the lookout. Surely something would catch my eye.

And it did. I took one last snap with the iPhone at the Converse Outlet store in Rehoboth, Maryland. And as you can see from the photo, the outlet is selling sneakers that originally had an MSRP of $25. And they are selling them  for the low, low price of $29.99 after first marking them up to a suggested price of $30.00. (You can click the image to enlarge.)

It’s worth noting the deal on the other box as well, with an MSRP of $30 marked down to $29.99. Wow. Are these some kinds of deals from an outlet store or what?

I’m not going to say this is illegal, or course, but just a reminder to the consumer in all of us that things aren’t always as they appear to be.

♪ ♫ Summertime, summertime, sum, sum, summertime…♪ ♫

I was on vacation all last week, which is why this blog was silent. (Pretend you noticed.) And I’ve discovered the challenges of shooting video while parasailing with kids. (Pretend you care. And if you do, for some odd reason, click to enlarge.)

But I’ve also come home to see 2,000+ stories in my RSS feed. No, I will not read them all. Or even most.

I will note some roundups (or round ups, or round-ups; your pleasure to hyphenate or bifurcate), however, to others that have destilled the awesome greatness of the legal blogosphere and plucked the very best for your persusal. Or, althernatively, some bloggers who simply linked to stuff they found interesting.

Mastectomies, Rental Cars, BP, Discrimination, Drugs – and Other News (The Pop Tort)

News of Interest for Lawyers on August 10th (Ron Miller - Maryland Injury Lawyer Blog)

Legal and Safety News Round Up (8/10/2010) (Brett Emison @ InjuryBoard)

Legal News Round-Up (Alan Crede – Boston Personal Injury Law Blog)

August 13 Roundup; August 12 roundup; August 11 roundup (all from Overlawyered, which does these daily)

Non-Sequiters (Above the Law)

Grand Rounds (the medical blogosphere’s equivilent of Blawg Review, which sometimes hits the junction of law and medicine)

Health Wonk Review (which often hits the medical-legal angles)

Cavalcade of Risk (hitting the insurance business angle)

And, of course, Blawg Review, hosted this week, in the dog days of August, with a Chicago Blackhawks Stanley Cup theme.  It’s like Crazy Eddie’s Christmas sale in August. Only with lawyers.

[The Personal Injury Law Roundup over at TortsProf is on summer hiatus.]

Query: Plaintiff brings suit alleging that Defendant was negligent in causing an accident. Court agrees Defendant was negligent, but says that Plaintiff may also be comparatively negligent to some degree. Should the court grant partial summary judgment in Plaintiff’s favor and leave the issue of Plaintiff’s own negligence for the jury?

I pose this question because last week a split opened among New York’s appellate divisions on the subject, thereby setting the issue up for a battle in the Court of Appeals.

Last week in Roman v. A1 Limousine the Appellate Division (Second Department) held that even though the plaintiff might show that the defendant was negligent as a matter of law, he must also show “that he was free from comparative negligence.” In other words, even if the court can resolve some of the liability issues on the papers, the court won’t grant summary judgment if any other liability issue remains outstanding. Partial summary judgment doesn’t exist, even if some of the issues are slam-dunk.

The decision stands in sharp contrast to the First Department’s February decision in Tselebis v Ryder Truck Rental, Inc. In that case, the plaintiff in a two vehicle wreck had no recollection of what happened, but the defendant “testified that he entered the intersection against a red light and did not see plaintiff prior to the impact.” The court reasoned:

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury.

While the First Department was quite clear in stating that “it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence,” the Second Department was equally clear in rejecting the reasoning of the First. The Second wrote:

…contrary to the Appellate Division, First Department’s statements in Tselebis, CPLR 1411 was not relevant to the issues presented herein. CPLR 1411 codifies the rule that any culpable conduct attributable to the plaintiff, including his or her negligence or assumption of risk, does not bar the plaintiff’s recovery of damages, but shall diminish that recovery in proportion to the culpable conduct of the defendant. CPLR 1411 pertains to the damages ultimately recoverable by a plaintiff. It has no bearing, procedurally or substantively, upon a plaintiff’s burden of proof as the proponent of a motion for summary judgment on the issue of liability.

Why is this stuff important? First and foremost  is that, in New York, interest doesn’t start to run until there is a judgment (unlike many other states where interest runs from the date of the accident). With interest running, at a statutory rate of 9%, the defense benefits of stalling quickly exact a price for a tactic that shouldn’t exist at all.

Summary judgment also potentially removes the need for an expert (depending on the facts).

Most importantly, though, it sharply delineates the issues that need to be resolved by a jury. If the liability of one side can be established as a matter of law, why should a trial take place on those issues? Why would a court want to further drag out and complicate the litigation?

The Second Department is arguing, wrongly I think, that in order to have summary judgment on liability in must be complete and total on all liability issues. But why should partial summary judgment on some liability issues not be available to litigants? Isn’t it part of the function of the court to remove the extraneous, and have trial only on those issues where there is a factual dispute?

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

Queens County, Supreme Court

It happened again to me today. I arrived for a Preliminary Conference in Queens. The conference was scheduled for 9:30. I was there on time, as I always am. Defense counsel sauntered in at 10:35. No pre-conference phone call to indicate she would be late. No excuse when she appeared. No apology. And nothing to indicate she actually gave a damn about the concept of professionalism.

The problem sits with the courts. They schedule a gazillion conferences for the same time, and then lawyers sit around waiting, and waiting and waiting. If you have a single appearance to make, and the other side has three or four, you can be forced to sit there while the other lawyer runs around billing his or her time. Or maybe the other lawyer just wants to sleep late.

But, no matter the reason,  it’s being done on your time if you were acting conscientiously and actually showed up. I wrote about this problem last in 2008 (see: How One Brooklyn Courtroom Wastes $10M Every Year). And if you then need judicial intervention on an issue, you have to wait in line with all the others.

Abraham Lincoln once said that “A lawyer’s time and advice are his stock in trade.” Indeed.

Perhaps one day, maybe even in my lifetime, the courts will figure out how to stop squandering all of our time and wasting so much damn money (time = money).

There are a couple of options:

1.  Schedule the conferences at staggered times. If a lawyer has a conflict,work it out at least 3 days before. Sanction those that are late; or

2.  Many of the conferences can be done by phone without the court. At least 90% of the details, and often 100%, can be worked out by the lawyers. Let the remainder, those that need intervention, be done by conference call with the judge.

The only problem with this is that much of the defense bar still bills by the hour. Those of us that work on contingency have every incentive to get the job done efficiently. The late-arriving lawyer in today’s conference, if she billed today’s appearance, probably claimed at least three hours for it as we didn’t get out until about 12:15. Don’t forget to add the travel time.  But we could have been done by 10:15. And if a court forced the lawyers to do this stuff by phone, we could have done it in even less time.

Now magnify all that lawyers’ time against the huge caseloads that sit in the New York City courts. The millions of dollars in wasted legal time add up fast. That is time spent just sitting there in addition to the travel time.

While it is true that it would cost additional money for the courts to implement this solution, it could be paid for by raising the bi-annual registration fees of the bar. They currently sit at $350, to be increased to $375 come September. But I’d gladly pay $500, if it saves me the wasted time in the courthouse. It would be, perhaps, the single most cost-effective fee increase in the history of the New York courts.

Some bloggers hate to link outside their own site, under the belief that it drives visitors away. Others will link, but only to “friendly” sites that agree with the author.

In steps Walter Olson, of Overlawyered fame, displaying once again why he is a master blogger; Linking directly to someone who criticizes him.

In his July 26th round-up you will find this little note:

• An injury lawyer reads and reacts to my first book, The Litigation Explosion [Alan Crede]

Now most folks don’t know who Alan Crede is, as he is a relative newcomer to the legal blogosphere. But the cite Olson gives is to an exceptional post on the poverty of new ideas in the tort “reform” movement, of which Olson has been a pretty big player for awhile.

But whereas most bloggers would ignore such criticism, or silently fume, Olson links to it, showing the other side of the coin to consider. Crede’s points may be good, or not, but it is for the reader to decide.

Not too shabby. And a damn good lesson for new bloggers trying to understand how the blogosphere works in its many  interlocking ways.  Good bloggers don’t view the visitor as a one-shot deal, but as a recurring reader. If you write well and provide quality links when deserved, the readers come back. Google made its fortune, its worth noting, by sending people away from its site.

Take note also that Crede “gets it” with respect to blogging, as he likewise linked to Olson’s sites at Overlawyered and Point of Law (though Olson has now moved from PoL to Cato).

The Associated Press reported on a boating accident last week involving the elder George Bush. This is the way the AP phrased it:

KENNEBUNK, Maine — Former President George H.W. Bush’s fishing boat ended up high and dry on a beach near his Maine home after it ran aground in thick fog.

Now what is so wrong about that that it inspires a blog post? I’ll tell you. The boat didn’t just run aground. Someone most likely caused it to run aground.

Let’s take that language now into the courtroom, and consider an accident at an intersection. This is the way two skilled trial lawyers will try to present it:

Defendant: The accident happened.

Plaintiff: The Defendant caused this car wreck.

For the most part, accidents don’t just happen. I dealt with this back in May when Kentucky Republican Senate candidate Rand Paul seemed willing to give a free pass to BP and its friends who dumped so much oil into the Gulf of Mexico. He wasn’t happy that President Obama criticized BP:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

It’s true that acts of nature may take over, such as the lightening strike that fells a tree right into the path of a car. One might argue that acts of nature are even more likely at sea, given waves and fog, but it is just those types of foreseeable risks that a captain must consider. Only something unexpected would allow the act of nature defense to come into play.

Acts of nature are not how most accidents occur. Returning to former President Bush, the article goes on to give this explanation:

[Bush spokesman Jim] Appleby says Bush was close to shore in low visibility when a wave pushed his boat onto the beach.

It seems to me that if he was running his boat in low visibility it really isn’t fair to blame the boat (“it ran aground”).

And that type of passive language is just the thing that plaintiffs’ lawyers should be on the look out for and ready to counteract. “It” didn’t just happen. Someone most likely made it happen.

Photo credit: jcfmbost, via Flickr

The slap the led John Stossel to hire a personal injury attorney and recover a reported $400K

John Stossel is at it again, trashing lawyers. Why? Two reasons:

1. When lawyers shoot back we sound like lawyers. Thus, easy fodder.

2. He makes good money doing it. How? Well, the Fortune 500 companies and conservative “think tanks” have tons of conventions, conferences and trade shows. And speakers are nice to have and can get paid well for it.

Could he be anti-lawyer on the merits? Funny joke, I know, but some will ask anyway. No, he actually confessed in a moment of candor that, while he was a consumer advocate in the past, he makes a lot more dough running around trying to get immunity for corporations. He said once:

In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, “I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

In his most recent attack (July 7th, Parasitic Tort Lawyers), he makes this claim, that kids have suffered because playgrounds are safer:

Even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things: Swimming pools, playgrounds and gymnastics programs close because liability insurance is so expensive. Kids lose their favorite places to hang out in the summer.

Now when I was a kid, there was concrete or asphalt under the monkey bars.  Kids got hurt. It was dangerous. Lawsuits were brought because there were easy, reasonable fixes. Now you see wood chips or mats. We do not have fewer playgrounds today, though we do have fewer serious injuries. And I see plenty of public pools and school gymnastic programs. Stossel is utterly full of it. According to Stossel, safe playgrounds are a bad thing. Up is down. Black is white. And all hail his Orwellian Doublespeak.

And then there is this:

Look at health care. The lawyers claim they punish bad doctors and win compensation for injured patients, and their suits add “less than 2 percent to the cost.”

This is deliberately misleading. The costs are actually less than one percent. Nice job, Johnny boy. And it’s very rare for suits to be brought against doctors to “punish,” they are brought for compensation. Maybe you’d like to pay higher taxes so the public can pay the compensation? No? I didn’t think so. Why not just give the tortfeasors immunity and screw the injured folks? Great public policy, that would be, huh?

Let’s have some more Stossel fun. He lets lose with this about doctors and hospitals:

They do surgery on people who may not need it. That’s safer for the doctor, although it’s not safer for the patients.

Stossel may not have noticed it, but the medical profession has a financial interest in doing more surgeries. It isn’t a secret that they get paid more to cut than not to cut, and that doctors have the biggest paydays in America.

The funniest part was his closing, where he tries to attack John Edwards for bringing cases regarding brain damaged infants, and accuses him of self-interest:

“I’m a trial lawyer,” he said. “They turned the word trial lawyer into a four-letter word, and I’m telling you I’m the people’s warrior, and I am proud to be an American trial lawyer.”

And the money is good.

He, he. That was funny. He tries to skewer Edwards because he was a financial success when the reason he himself switched over to corporate defender was because “I also now make so much money I just lost interest in saving a buck on a can of peas.” As a noted TV personality would say, “Give me a break.”

I noted his hypocrisy earlier this year (including his own personal injury lawsuit for getting slapped a couple times by a wrestler, for which he reportedly collected over $400K) in a post entitled John Stossel — You Gotta Love Him.

And so, after yet another attack piece on “parasitic” lawyers, Stossel was filleted by various bloggers. I bring you, without further ado, a few more of those criticisms:

John Stossel – The Wrestler (Jon Lewis)

How Do You Solve a Problem Like John Stossel? (The Pop Tort)

Stossel Calls Lawyers Parasites (Tort Burger – Hold the Reform)

Dear John Stossel: The 7th Amendment & Trial Lawyers Probably Saved Your Life (The 7th Amendment Advocate Blog) – added 8/4/10

I really don’t get it sometimes. A client goes to a lawyer with a legal problem. The lawyer declines the case. And then the lawyer yaps to the press?!?  Are you kidding me?

It comes up today in the ongoing train-wreck of actress Lindsay Lohan, who apparently has had a spot of legal trouble with getting boozed up and driving, and the consequences that flowed from it.

But a headline at the ABAJournal on this actress seeking pro bono counsel caught my eye.  Is she claiming poverty that she needs free legal help? No. She just paid two others lawyers already so she thinks her third one should be a freebie. Go figure.

Anyway, this is what caught my attention and rankled me, this bit at the end of the article:

Meanwhile, another counsel candidate who says he refused the representation has already dished to People magazine.

His would-be client is “a fragile lost child” who “just doesn’t get it” concerning the seriousness of the case she is involved in, says Stuart Goldberg, a criminal defense attorney based in Chicago. When he met with the actress and two relatives, “they didn’t seem to understand the urgency and gravity of the situation.”

Why the hell is this Stuart Goldberg, apparently a Chicago criminal defense lawyer, talking about what he heard or saw in the confidence of his practice? And why would any future client ever trust him to keep a secret?

The People article has him giving a great deal of information about his supposed-confidential meeting with Lohan at her home.

More details from the visit at People:

At one point in their meeting, Goldberg, worried that Lohan “was in a dangerous state,” asked if she might hurt herself.

“She started sobbing quietly. She was genuinely in pain,” says Goldberg.

And though he advised Lohan to move out of Los Angeles, which he described as a “toxic environment for her,” the actress didn’t seem open to the idea.

“She was like Teflon to that comment,” he says. “It just slid right off her. She seemed to have some inner deep sadness that that was her fate.”

That is no way for a lawyer to act, unless Lohan agreed to let him yap to the press, which seems rather unlikely.

File this one under Attorney Ethics.

Update, 7/16/10: While I have no desire to follow the follies of stars and starlets on any continuing basis (which is one reason, I suppose, I initially mis-spelled Lohan’s first name as “Lindsey”), I do wish to add another version of why this match was not made to measure.  Goldberg claimed, apparently that he turned down Lohan, as noted above. But it may be the other way around. According to this report:

Lindsay Lohan says that she turned Goldberg down because she didn’t like his style. TMZ gives the example of his vanity license plates which say “Snake Charmer”.

Snake Charmer. Nice. I wonder if jurors ever see him get into that car.