Douglas Kennedy’s Lawyers Get Disqualified in Nurse Assault Suit (Updated)

Douglas Kennedy-Wesrtchester Hospital

Screen capture from video of the Douglas Kennedy incident at Westchester Hospital

In a ruling late last week, the attorneys for Douglas Kennedy, son of Robert F. Kennedy, were disqualified from defending him in a suit arising out of his alleged assault of two nurses.

The January 7, 2012, incident, widely covered in the media, arose when Kennedy attempted to take his three-day old son outside of Northern Westchester Hospital for fresh air. He was stopped by nurses who said he was not permitted to do so without a bassinet, and a tussle ensued which was partially caught on video.

Kennedy was acquitted of misdemeanor charges of child endangerment and harassment in the second degree, but a civil suit followed for personal injuries.

The remarkable disqualification came about due to a subject I have extensively covered on this blog, the way that defense medical exams are done and reported. (Many judges use the misnomer IME though the exams are not actually independent. Chief Judge Lippman agrees with me on this. These exams are commissioned by counsel, not the court.)

In this case, three doctors examined each of the nurse-plaintiffs, and four of the six reports said that the injuries were causally connected to Kennedy’s actions. So what did the defense lawyers do? They gave more materials to the experts to persuade them to change their conclusions. And on at least one occasion, met with the expert, along with Douglas Kennedy, to persuade him.

In other words, the defense took multiple bites at the apple. Instead of giving all of the information at the outset, they gave only some, and when the reports didn’t come back the way they liked, they gave more. And with one of the experts, went back to the well three times for amendments.

From the well-reasoned opinion of Judge William Giacomo with my bolding on the important stuff that the defense lawyers wanted changed:

During July of 2014, each plaintiff submitted to three IMEs performed by defendant’s insurance company. Plaintiff Anna Lane submitted to a psychological lME with Dr. Richard DeBenedetto, an orthopedic IME by Dr. David Elfenbein, and a neurological IME by Dr. Elliott Gross. Plaintiff Cari Lucania submitted to a psychological IME with Dr. Victoria L. Londin, an orthopedic IME by Dr. David Elfenbein, and a neurologicallME by Dr. Ronald Silverman. With respect to Anna Lane, in July 2014, Drs. DeBenedetto and Elfenbein each issued an IME report with a finding that her injuries were causally related to the January 7,2012 incident. Dr. Gross found no causal relationship. With respect to Cari Luciano, Drs. Londin and Elfenbein each issued an IME report with a finding that her injuries were causally related to the January 7, 2012 incident. Dr. Silverman found no causal relationship.

With those reports of causation in hand, defense counsel then went to work to get them changed:

Thereafter, in August of 2014, defense counsel sent Drs. DeBenedetto, Elfenbein, and Londin additional information with regard to plaintiffs (including plaintiffs’ deposition transcripts) and medical records (including the neurological IME reports which found no causal relationship) together with a copy of Judge Donohue’s November 20,2012 written decision in the criminal matter.

Why disqualification? Because these doctors are witnesses, and the lawyers that asked them to change their reports are now also. Plaintiff’s counsel wants to call them to show, no doubt, his opinion of chicanery in the defense of the case. And you can’t be both a witness and counsel in a case, as it violates our disciplinary rules.

From the court regarding the Dr. David Elfenbein, regarding the three separate addendums to his report:

On July 8, 2014, August 20, 2014, and October 10, 2014 Dr. Elfenbein issued addendums to his original July 2, 2014 report. The July 8, 2014 and August 20, 2014, addendums further indicated a causal relationship between Lane’s injuries and the incident. However, on October 10,2014, after attending a meeting, at Dr. Elfenbein’s office with defense counsel and defendant, Dr. Elfenbein issued a third addendum wherein he no longer found Lane’s injuries were causally related to the incident. In his October 10, 2014 addendum Dr. Elfenbein states “Attorney Douglas presented mewith medical records and did review some key aspects of them with me. He then asked me verbally and in writing to review those records in their entirety and readdress my conclusions regarding causation in my Independent Examination.”

Interestingly, the opinion by Judge Giacomo exposing this incident is likely to significantly impair Dr. Elfenbein’s ability to conduct these exams in the future. He is likely to be, shall we say, harshly criticized in future cross-examinations with a claim that he will bend to the hand that feeds him.

All the reports were subsequently changed to reflect that there was no causation for the injuries. Not just one report, but all. And that makes the lawyers who did this at, Douglas and Newman, important witnesses.

As per the court, in ordering disqualification:

In order to disqualify counsel, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S. H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609 [2nd Dept 2004]).

Here, plaintiffs have established that the testimony of defense counsel Douglas & London, PC regarding its conduct and interactions with the IME doctors, including what occurred during the meeting with Dr. Elfenbein, to warrant a change in their original determination that plaintiffs’ injuries were causally related to the January 7,2012 incident is necessary to their case and would be prejudicial to defendant. (See McElduff v. McElduff, 101 A.D.3d 832, 954 N.Y.S.2d 891 [2nd Dept 2012]).

Let me be clear about something: This does not happen. In the world of personal injury litigation, this is exceptionally rare. In fact, I’ve never before heard of it happening.

But the decision is, in my opinion, correct. If a lawyer forwarded additional documents to one doctor, the result may well have been different. But three doctors? And meeting with one for the express purpose of getting that report changed for a third time? Yeah, that lawyer is now a witness. And that can’t be good for the defendant, Douglas Kennedy.

The court here effectively protected Kennedy from the conduct of his own counsel. It’s better for him to have them as non-party witnesses who will be skewered than to have them as his counsel in the well of the courtroom who will be skewered. The decision is here:Luciano and Lane v Kennedy

Hat tip: Eliott Taub

Updated:  The New York Law Journal also has the story, on its front page, with interviews of the attorney and defense counsel’s defense of their conduct. They claimed, in part, that they didn’t have all the information:

“It was plaintiffs that withheld information, downplayed information and the doctors didn’t have it…”

The problem with that is that, as Judge Giacomo writes, some of the information furnished to the doctors apparently pre-existed. This includes the plaintiff’s deposition (usually available) and the court opinion in the criminal matter.

Also, a second decision exists from Judge Joan Lefkowitz, dated July 2nd, where she deals (via Order to Show Cause), with the demands by plaintiff for many of the documents at issue regarding the medical-legal exams. See: Luciano v Kennedy (Lefkowitz Decision). She also notes that Douglas Kennedy actually went with his lawyers to the final meeting with Dr. Elfenbein.

Stupid Lawyer Questions – Part 1

StupidLawyerQuestionsSince lawyers like to share war stories, I thought I’d try something new and collect a few, if I found humor or abject stupidity in them. Abject stupidity includes asking the most useless questions possible at a deposition  — so bad an 8-year-old wouldn’t do it.

Wait!  Did I just offend some veterans by using the phrase “war stories” in the context of this trifling post? Wait again! Did I just upset someone by failing to publish a “trigger warning” before using the phrase “war stories?”

That preceding digression exists for a reason — this post is about language. Specifically, the unthinking use of it in the context of litigation.

This is inspired in large part by two things: The first is the collected trial quotes of the late U.S. District Judge Jerry Buchmeyery, at Say What?! The second is my own experience some years back in a 7-day deposition — a medical malpractice case dealing with a failure to properly treat an infection in the foot to a diabetic — where the lawyer asked:

When you started as a sanitation worker 20 years ago, what route did you work?

For the purposes of this series, if it ever progresses past this posting, I’m aiming for funny/ludicrous/moronic and utterly irrelevant.

Don’t ask me if there will be a part 2, ’cause I’m not as good as Judge Buchmeyer.

The names of the the parties and defense lawyers have been redacted to protect the guilty. All are original to this site, collected from friends. The first three:

————————

Submitted  anonymously:

Q: Your mother and father moved to Chicago?

A: Yes.

Q: Your Father died?

A: Yes.

Q: Did your parents move to Chicago before or after your father died?

—————————-

Submitted by  Mark Bower:

On the FOURTH day of plaintiff’s EBT with no end in sight, the mother testified that she had some (possibly relevant) papers in a black box on a shelf in her hallway closet. The defense attorney did not ask what the papers were, or what they said. Instead, she asked:

Which shelf?

What are the dimensions of the shelf?

How high is the shelf off the floor?

What are the dimensions of the box?

It finally ended when she asked “What color is the black box?”

At that point, I threw her out of my office. The loudly-threatened motion to bring the mom back for a continued deposition never materialized.

————————

Submitted by Jon Rapport:

  1. What hospital were you born in?
  2. Methodist
  3. Is that in Brooklyn, New York?
  4. Yes.
  5. Are you a United States citizen?

—————————-

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked?  What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it.  I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

InfinitesmalNow I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackle in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:

Cite?

While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing  false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:

DoesntSayThat

 

Two to 45

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’v become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness.  Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?

———

Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay WolmanLegal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)

 

 

Off the Grid

GoneFishin

I wasn’t actually fishing, but this captures the spirit.

From July 1st though July 8th I was off the grid. No cell phones, texts, email, no nothing.  My July 2nd post was published on auto-pilot.

I can’t remember the last time I went that long without it, though it likely goes back to the day I got my first cell phone.

And I didn’t miss it. The vast majority of vacations we take today are working vacations, meaning that no matter what we do or where we go we pick up the magic iDevice to check work emails and messages.

It felt good to be gone, not just physically, but mentally. No Facebook, Twitter, Instagram, or anything else.  Just me, my family, and those in immediate proximity, who were likes unconnected to our increasingly wired world.

It’s good for the soul.

When I finally hit a hotel with wi-fi, the hundreds of emails that accumulated poured in. I almost got carpal tunnel syndrome hitting the delete button.

But at that point it hit me that while the body was still away, the vacation of the mind had ended.

Happy July 2nd! (Let us celebrate Independence)

Declaration_of_Independence--John-Trumbull-780564-764699Each year I use July 2nd as a jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write prior posts about why the day is so important to the jury system. So here they are:

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Donald Trump Files Frivolous $500M Defamation Claim

Donald Trump

Donald Trump

I’ll try to do this post without the usual comments about Donald Trump’s desperate need for attention over the years, or his combover, bluster, birther issues, and paying people to attend his presidential announcement.

Or the shear delight of late night comics. Or comments about every village having its idiot, and since NYC is the biggest village…..

Crap. Couldn’t do it.

Anyway, as many folks know, Trump made a number of exceptionally nasty and derogatory comments about Mexicans during that announcement, calling them as a group rapists and drug dealers:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

If you don’t think that is bad, try substituting Jews, blacks, gays, etc.

Univision, a Spanish language station that carries Trump’s Miss USA and Miss Universe contests, dumped Trump over the comments. Then NBC fired him from a TV show called Celebrity Apprentice.

Trump sued Univision yesterday for breach of contact and defamation.  I haven’t see the contract, and have no opinion on it, but I do have an opinion on the defamation.

Having myself been the subject of two frivolous defamation suits for my comments on this blog, it probably doesn’t come as a surprise to regular readers that I have opinions on the subject. (See Rakofsky and Katz)

As best I can glean from this, the defamation claim surrounds the publication of a picture of Trump next to alleged mass murderer Dylann Roof. The publication took place on Instagram by Univision’s President, Alberto Ciurana, and has since been taken down. You’ll find the reference to it in paragraph 29 of the Complaint.Trump Defamation Case

Roof and TrumpIs the photo nasty? You betcha. I publish it here so that you know what this part of the suit is about. And so you also understand why it represents constitutionally protected free speech under the First Amendment.

Because, ugly as the picture is, it does not represent fact, but opinion. And the First Amendment clearly protects opinion. You can’t bring a lawsuit (successfully) for hurt feelings because people were mean to you on the Internet.

Since Trump brings this case in Manhattan, New York’s First Department, the court will likely quote this type of language, that was used in the dismissal of the Katz case against me:

“‘[s]ince falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false…a libel action cannot be maintained unless it is premised on published assertions of fact,’ rather than on assertions of opinion.” Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dept 2011) (quoting Brian v. Richardson, 87

In 1986 New York’s Court of Appeals said in Steinhilber v. Alphonse that expressions of opinion, as opposed to assertions of fact, are privileged and, no matter how offensive, cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.

Trump doesn’t even come close to asserting a false fact. That cause of action is destined to be dismissed.

By filing a $500M defamation claim (paragraph 61), Trump knows he will get headlines. And he is. Despite the fact that the suit is empty.

Trump, of course, freely admits that he is outrageous on purpose to garner press. In his book The Art of the Deal, he writes:

One thing I’ve learned about the press is that they’re always hungry for a good story, and the more sensational the better. It’s in the nature of the job, and I understand that. The point is that if you are a little different, or a little outrageous, or if you do things that are bold or controversial, the press is going to write about you. I’ve always done things a little differently.

But that doesn’t mean a judge should tolerate the abuse of the courts for that purpose. The judicial culture of New York judges is to avoid sanctions for clearly frivolous claims, but that needs to change. We have provisions for sanctions for both a frivolous suit and for frivolous conduct. They should be used.

This is not the first time Trump will lose a defamation case. Trump was dumped back in 2011 when book author Timothy O’Brien questioned his claims of wealth, writing that Trump was worth $150M-$250M, and not the $7 billion he boasted about. Trump had testified, before he was dumped, that his net worth depends in part on his “own feelings.”

Two more quick points: New York prohibits making an ad damnum clause in a personal injury case, and defamation falls into that category. It was outlawed in 2003. Yet Trump does it anyway, for $500M.

I’ve written about this before. There are only two reasons to put the monetary claim in the complaint: The lawyer was ignorant or there was a deliberate attempt to garner headlines.

The usual response by judges is simply to strike the demand, but by then the damage has been done and the headlines written.

A far better avenue for the court is levy sanctions for having done it. And given Trump’s nature as a vexatious litigant, and his admitted conduct of being outrageous to get press, sanctions would be wholly appropriate.

This isn’t just my opinion, but that of the late guru on New York Practice, David Siegel. In his treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 301(c).”

Finally, the Legislature should finish its work with regard to the anti-SLAPP legislation that has passed the Assembly but stalled in the Senate. Trump is clearly trying to stifle the public discussion of his outrageous conduct, and this should not be permitted.

 

NYPD Sending Screeching Amber Alerts By Text?

It came into my phone moments ago, a siren warning screeching in my pocket about an Amber Alert. It sounded like the Emergency Broadcast System that we were trained, as kids, would come in the event of some type of cataclysm. It sounded like this.

And my questions are, how many did this go out to?

How many were driving in their cars, and took there eyes off the road to see what the emergency was?

Has the NYPD never heard of distracted driving?

Did the NYPD just cause accidents because of this? Were any injured? Or killed?

I understand the need to catch bad guys who may have kidnapped kids. But there is a difference between using a system and abusing it.

The NYPD may well have caused more harm than good with this message. Somebody forgot to measure the pros and cons have sending out mass emergency texts.

According to the National Center for Exploited and Missing Children, 800,000 kids are reported missing each year. Can you imagine how many Ambler Alerts that would result in? Broadcasting to radio stations and roadside signs are one thing, but sending all those screeching texts to cell phones?

Whoever made the decision to distract so many drivers by having them take their eyes off the road must have rocks in the head.

This is what the web version looks like for what appeared on my phone:

AmberAlert-NYPD

 

Yo Scalia! Play Nice!

Justice Antonin Scalia

It seems that my Brooklyn-born guest blogger today, Jay Breakstone, was none too pleased with the temperament of Queens-raised Antonin Scalia yesterday while dissenting in the landmark case of Obergefell v. Hodges that legalized same sex marriage in all states.

And Breakstone, an appellate wordsmith, has a few words to Justice Scalia, on minding his manners. From one city kid to another. And so, without further ado, a few comments on Nasty Nino…

———By Jay Breakstone———–

Comments about Justice Scalia’s dissent in Obergefell v. Hodges, the gay marriage decision from the Supreme Court, have been grossly unfair. As one wag once said, even Hitler was a hell of a dancer. If we look hard enough, we can overlook the worst in anybody, even Justice Scalia.

Sure, Justice Scalia may have been unhappy with the rigors of real-live legal practice at Jones, Day before moving on to academia and “public service,” but that’s okay, isn’t it?  You don’t really expect Harvard magnas and editors of its law review to work for a living like the rest of us, do you?

Sure, he may be acerbic in his writing, but he’s really funny. Just before describing the majority opinion in Obergefell as the product of “hubris” amounting to a “judicial putsch,” Justice Scalia identified the actors in that putsch—his fellow justices— as follows:

“[T]his Court . . . Consists of only nine men and women, all of them successful lawyers who studied at Harvard of Yale Law School.  Four the nine are natives of New York City.  Eight of them grew up in east– and west-coast States. No one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

See how funny that is?  Well, how about that this is being written by the first Italian-American justice?

What confuses me is that Italian-Americans only comprise only 5.6% of the American population. So under Justice Scalia’s theory, how are they entitled to two justices (Scalia and Alito) of their own?

How about if we join them with the Jews? After all, there are Italian Jews, such as Fiorello LaGuardia (descended from a great rabbi on his mother’s side.) That would give Justice Scalia another 1.4%, or 7% in total.

Still, in ScaliaMath, not a significant enough cultural/ethnic/religious group to warrant the appointment of two whole justices (fractional justices being ignored.)

Maybe Justice Scalia could he be the “short people’s justice?” After all, he is only 5’ 7” tall and is probably the shortest male on the Court. However, RBG is fully notorious at barely 5 feet tall.

If the anti-Scalia group is still less than comfortable with the absence of any Protestants on the present bench (Scalia is a Roman Catholic), then they can always be reminded that for its first 180 years, almost all the justices were Protestants – – and male at that.

No, Nino, we can’t choose our justices based on who they are, where they come from, or who they pray to. But we can surely choose them based on their courtesy to their colleagues and the ability to see beyond themselves.

We don’t think it’s particularly clever to refer to colleagues who don’t think the way you do as members of a “putsch,” knowing (and you know everything) that the term refers to the attempt by Hitler and his Nazi Party to seize control of Bavaria in 1923, especially when two of your colleagues are part of that over-represented group on the Court, the Jews.  At best, its self-centered and narrow beyond excuse.

In the final analysis, perhaps you’re just not a nice person.  Or maybe you’re this way only when you lose, twice (Obamacare on Thursday), in the same week. But even Evangelicals would only call that being a “sore-loser.”

Nasty, even in what one believes is a last-ditch defense of all that is good about American democracy, ill-becomes a Justice of the Supreme Court.

 

South Carolina: So Long and Farewell (Updated)

The Confederate flag flies at the South Carolina statehouse in the wake of mass murder by a racist. (photo by Sean Rayford for Getty Images, via the New York Times)

The Confederate flag flies at the South Carolina State House in the wake of mass murder by a racist. (photo by Sean Rayford for Getty Images, via the New York Times)

(I’m hijacking my law blog today to publish this letter I’m sending to Gov. Nikki Haley of South Carolina, and others as listed below.)

Dear Governor Haley:

I’ve come down to South Carolina the past 13 years with a group of old college friends for vacation. Hilton Head is nice.

But so long and farewell. We are taking our vacation dollars elsewhere.

The sight of the Confederate battle flag flying full staff at your State House in the wake of a racially based church massacre is just too much. That a symbol of slavery should still be flying at a state capitol, 150 years after the Civil War ended, is not just bizarre, but contemptible and vile.

A photo from a white supremacist website showing Dylann Storm Roof, the suspect in the Charleston, S.C., church shooting. (via New York Times)

A photo from a white supremacist website showing Dylann Storm Roof, the suspect in the Charleston, S.C., church shooting. (via New York Times)

I know that there are some who try to rationalize the use of the flag as some type of cultural antebellum throw-back to a simpler time. But that simpler time was abhorrent for those enslaved.

The empty rhetoric of cultural symbolism from flag supporters is highlighted by the fact that South Carolina had the highest percentage of it’s population in slavery, at a stunning 57%. I would think you might actually care about what their descendants see their government glorifying. There is no justification for waving the flag of slavery in their faces.

Your state will get our money no longer. There are plenty of other nice places we can go to the beach and play a little golf. We need not do it under the fluttering colors of racism.

I know that you think it’s perfectly OK to keep that flag flying, as long as CEOs don’t complain. I know this because you said so in a debate last year:

“What I can tell you is over the last three and a half years, I spent a lot of my days on the phones with CEOs and recruiting jobs to this state,” Haley said. “I can honestly say I have not had one conversation with a single CEO about the Confederate flag.”

So it isn’t about principle for you, it’s about money.

I saw that the victims’ families made a number of very forgiving comments about the killer:

“You took something very precious away from me,”  a family representative for Ethel Lance, the 70-year-old grandmother who died in Wednesday’s massacre, told Roof on behalf of Lance’s loved ones. “I will never talk to her ever again. I will never be able to hold her again. But I forgive you and have mercy on your soul. You hurt me. You hurt a lot of people, but I forgive you.”

I can not even imagine that I would be so charitable. You are very lucky to have such people in your state. It’s a shame you don’t appreciate them.

confederate-flagSince it’s about money for you and not principle, I will send a copy of this letter to the Marriott, where we stay. I want them to know that they have lost our business because of you.

I will likewise send copies to the owners of many of the restaurants that we have enjoyed over our 13 years, letting them know why we will not return. And I will make it available on the web, for the few people that might find it on my blog.

All is not lost for you, of course, as there are likely a number of skinhead, neo-Nazi and white power hate groups that revel in what you are doing. Perhaps they will bring their business to Hilton Head instead, and stay in your fine hotels, eat in your nice restaurants and tee off on your many golf courses.  I’m sure the owners will welcome them with open arms.

–Eric Turkewitz and friends

Update, 6/23/15 — My post went up around 7 am, and at 4 pm Gov. Haley asked the Legislature to take down the flag.  But it still flies, as ⅔ of each legislative house must approve its removal.

So the burden is clearly now at the feet of South Carolina’s legislative branch.  Will the state continue to fly the flag of slavery, segregation and subjugation or not?

I have no intention of bringing my tourist dollars back to South Carolina while it flies.

The First Rule of Lawyering

Voldemort

Since Atilla the Hun lived before the age of photography, I went for the next best thing….

Over at Above the Law, Mark Herrmann was commenting yesterday on ways for associates to screw up. Hermann is a terrific writer, and author of the highly regarded Curmudgeons Guide to Practicing Law that I reviewed in 2008, as well as Inside Straight, a collection of his writings from Above the Law.

But he said one thing in yesterday’s piece that really jumped out at me, as he discussed an article from another site on that subject. And that had to do with a lawyer’s personal demeanor, which I’ve bolded for you since block quotes generally suck:

The folks in the Law360 article did okay. Their six ways for associates to disappoint were: Don’t (1) be visible enough, (2) take ownership of your work, (3) be thorough, (4) be pleasant, (5) know how to talk on the phone, and (6) sow the seeds of business development.

I’m deeming numbers 1 (visibility) and 6 (developing business) to be duplicative and 5 (talking on the phone) to be penny-ante. And, personally, I don’t much care about number 4 (being nice). Maybe I’m out of the mainstream here, but I’m the person who said: “Attila the Hun? Guy’s got a nasty mean streak, but at least he can do his job. Hire him.” I’ll accept an awful lot of personality quirks in exchange for the chance to work with someone who’s smarter than I am and writes and speaks better than I do.

Ugh. This violates my First Rule of Lawyering: Don’t be Attila the Hun.

But why?, I hear some of you cry!  We’re supposed to be tough as nails in litigation and doing everything possible (within the law) to win!

And here’s the issue: During the course of the litigation there will be a time when one side needs an extra day or week for something. And you don’t know if that someone will be your client or someone else.

If your client is scheduled for a court-ordered deposition on October 10, for example, and it happens to be the week she is taking her on a short vacation, or the day of her daughter’s 2nd grade play, you want to be able to pick up the phone and request common courtesies for a new day. So long as there is no genuine strategic issue, that serves the client well.

But if you have been acting like Attila the Hun and thought you were being a good lawyering by denying even small courtesies to the other side? Well, guess what?

The other lawyer might tell you to go jump in the lake when the shoe is on the other foot. What goes around comes around. Karma. And all that.

That courtesy might not be granted. To the detriment of your client. Because you thought you could act like Attila the Hun on something in a Take-No-Prisnors litigation strategy.

Keeping a good, working professional relationship with the adversary’s counsel, while still doing what you are retained to do, is often a tough thing. Tempers may flair if you aren’t careful in even the most routine deposition.

This doesn’t mean that the lawyer stops short of arguing his heart out just to be nice, only that there is an art to disagreeing without being disagreeable.

All of this comes home to roost, often, if one side or the other wishes to talk settlement. Sitting down for a cup of coffee with Attila to discuss why a settlement should be more/less may be beneficial to the client, but difficult if someone was acting like a jerk. Sitting down with  a human is much easier.

And that is what serves the client.

A story I’ve told before and I’ll tell again: When I was in law school I watched my father try a medical malpractice case in Brooklyn. He and the other lawyer would go head-to-head in the courtroom, acting within every meaning of the phrase “zealous advocacy.” Then they would grab a cup of coffee together after court.

Best lesson in the law I ever had.

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