February 15th, 2019

Quick! Start the Internet Shame Game!!!

We see it almost every week on the interwebs, with someone having possibly done something wrong/stupid and having their name and reputation blasted to smithereens in a nanosecond.

A full investigation and uncovering of facts would come later that might support, or not, or leave ambiguous, the initial onslaught.

Now keep that thought in mind as I turn to an extraordinary piece in The New Yorker by Robert Caro, who wrote the incredible biography of master builder Robert Moses, The Power Broker, and is currently working on a five-book biography of Lyndon Johnson. Four volumes have already been published.

Caro reveals his secrets as to how he gets the good stuff. He starts off with some wisdom he learned at his first job as a reporter, for Newsday:

“Turn every page. Never assume anything. Turn every goddam page.” 

To those accustomed to forming opinions based on Twitter headlines, this will make you very unhappy.

At the Johnson Library in Austin, Texas there are forty thousand boxes of documents. Forty thousand.

The way things worked, you’d fill out a slip for the boxes you wanted, and in an hour or so an archivist would arrive in the Reading Room wheeling a cart with the boxes on it, and put them on a cart next to your desk, each one landing with an impressively, and depressingly, heavy thud. There was room on the cart for only fifteen boxes, and I always requested more than fifteen, so that when I returned a box and a gap appeared on my cart it would be quickly filled.

Over time he pored through thousands of boxes of raw documents to find out how Johnson was able to rise quickly in power from his position as congressman.

And the same attitude toward turning every page to find out the story went toward interviewing people from Johnson’s hometown in Hill Country west of Austin. He realized that, in talking to them, he really didn’t understand them. There was a cultural divide.

Reporters during Johnson’s presidency went out there they’d stay for a few days, maybe a week, and then leave. Caro decided to stay there for most of three years as he commuted back and forth to the Johnson Library 40 miles away in Austin.

Living there was the best way to win the confidence of Johnson’s old family and friends and to understand Johnson’s youth. Caro does the hard work.

As soon as we moved there, as soon as the people of the Hill Country realized we were there to stay, their attitude toward us softened; they started to talk to me in a different way. I began to hear the details they had not included in the anecdotes they had previously told me, and they told me anecdotes and stories that no one had even mentioned to me before—stories about a Lyndon Johnson very different from the young man who had previously been portrayed: about a very unusual young man, a very brilliant young man, a very ambitious, unscrupulous, and quite ruthless person, disliked and even despised, and, by people who knew him especially well, even beginning to be feared.

Lawyering, or at least good lawyering, is often like that (without the three years of living on site part). It isn’t the shoot first and ask questions later that you might see in Twitter rages against the latest demon of the day. It’s about uncovering as much evidence as you can to see what it reveals.

Go read Caro’s piece. It’s fascinating. Then maybe reevaluate the real relevance of the trashy comments of the day as to what they really mean.

How many of them followed the lesson that Caro learned long ago?

“Turn every page. Never assume anything. Turn every goddam page.” 


 

February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.


 

January 29th, 2019

Is the NYS Senate Restricting Your Speech?

I stumbled across this story quite by accident. The New York Legislature is in session and a flurry of bills are being passed. And I happened to look one of them up.

This post, however, isn’t about the bill but about the Senate’s website. Specifically, there is a comment section for the bills being proposed and passed, and that comment section has restrictions.

Restrictions? Yeah, you read that right. This is a website devoted to public policy, owned and operated as the official arm of the Senate, and it restricts what you can say relative to those policy issues. It restricts open debate, which any semi-conscious high school student will tell you runs headlong into the First Amendment.

The offending rules for the comments includes the completely subjective “hate speech,” about which there is no accepted definition, as well as things that are “off topic,” or profanity.

These are the comment rules that you can see near the bottom of any page that shows the status of bills, with a few highlights that I added:

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published.

But who decides what is off-topic? One need not be a long time denizen of cyberspace to see that many people think their comments are on topic while others think they’re off.

And what is profane? Are people restricted to George Carlin’s seven dirty words or is there some other list for people to consult? Is it my list or your list and what happens when one of our lists changes? And what happens if someone simply wants to write, “Fuck this bill“? You know what? The Supreme Court has already decided that this sort of profanity is protected speech. (Cohen v. California)

What is campaign-related if you object to a bill and its sponsors and think they should be tossed out of office on their ears for having proposed such fool-hardy nonsense?

Is it self-promotional if you give a personal story of what horror you think may befall your company if the bill is passed? Can you name your company?

And, most importantly, who is the gatekeeper for what people are permitted to say to their Senators via these comments?

I’m willing to bet that no legislator has ever given a thought to the comments section as it’s rarely used by my observation. But it’s prohibitions on speech seem to present clear First Amendment issues, making this a problem waiting to happen.

 

January 21st, 2019

The Death of the Stick Shift (Blame Safety)

My first car looked a bit like this. Loved it.

My first car was a 1982 Honda Accord hatchback. Five-speed stick. Roll down windows. Manual locks. No A/C.

I learned to drive stick when my older brother needed me to drive his manual transmission car back from Philadelphia to Long Island. I got a lesson on Saturday. And drove it solo out of Center City Philly to New York on Sunday. Only stalled once.

My theory in buying my no-frills Honda was simple: The fewer things that were automated the fewer things there were to break. And nothing ever broke in that car. It was a great car and I took many a trip back in it back and forth to Buffalo during law school.

But cars and Manhattan are not a good match and when I moved there in 1986 it was time to kiss it good bye. When I needed a car I would rent one and those rentals were far cheaper than the cost of garaging it.

(Hang with me a bit here and I’ll get to the safety and personal injury stuff.)

When I moved to the suburbs after 13 years of city living it was time to motor up again. But I had a problem, and part of that problem was a pipestem driveway. And Mrs. NYPILB (she loves that acronym!) didn’t drive stick, didn’t know from clutches, and didn’t want to learn the three-pedal two-step. In twenty years of marriage that’s the worst I can say about her so I figure I’m pretty far ahead of the game.

Having a two-car family and a pipestem driveway would mean constant car shuffling. I let the fun of driving stick slip away since my car was mostly going to the train station anyway. And that’s just the way it was.

When Dear Daughter was old enough to drive, she followed in her mother’s footsteps.

But Dear Son thinks differently. He’s a car guy. Want to know what that car in front of you is? He’ll tell you in two seconds based on the tail lights. At night. Ask him what he wants to be when he gets older and he’ll tell you a McLaren owner. But he’ll settle for a Lambo if he has to.

Until he started talking car stuff, I had no idea that tail lights could be an art. Or that there really was much difference. I was simply oblivious since I’m not a car guy.

So with the lease being up on my Subaru Impreza hatchback, I needed to go car shopping. But I confess that I love this vehicle because of its all wheel drive and the car’s many safety features, which you can’t dismiss when you’re looking at teenagers coming of driving age. Dollar-for-dollar you get a lot of bang for the buck.

I took Dear Son with me to look at a couple of cars, including the next gen Impreza. Guess who wants to drive stick? Yeah.

But the salesman I spoke with let me know the deal: If I want the stick and clutch, I can’t get the Eye Sight Driver Assist. What’s Eye Sight? That’s the computer that not only beeps when you change lanes without signaling, but more importantly will automatically brake when a car or pedestrian is too close in front.

So if a car coming at you in the opposing lane suddenly makes the dreaded left turn in front of you, or a drunk pedestrian steps off the curb in front, the computer might well react before you. Split seconds can make a difference. Literally.

As you might assume from the bear bones ’82 Honda I started with, I’ve never been one for tech features in a car — I’m the type that never uses the cruise control. Digital doodads don’t light my fire. I want to drive a car, not be driven. And I think self driving features are dangerous because they promote inattention.

That’s one of the things about driving stick — you can’t be inattentive. Unless you are cruising on the highway you are constantly engaged. You’ll never see someone driving stick and texting, or eating a hamburger, or even drinking coffee. Not in local traffic, anyway.

Most collisions (not accidents) happen due to driver inattention, and driving stick is the opposite of inattention.

But there’s no getting around the fact that the Eye Sight Driver Assist is not only good tech, but tech that remains invisible until called into play. It’s part of the wave of advanced safety features that are coming as car companies automate their vehicles.

It’s part that same tech wave that will decrease traffic into emergency rooms, and the offices of personal injury lawyers. If you’re in law school thinking this is what you want to do, I strongly suggest you make a sharp turn sooner rather than later.

That tech, however, is incompatible with a manual transmission. You can choose between a valuable safety feature — one that will become far more ubiquitous as the years roll by — or the fun and engagement of driving stick. But you can’t have both.

Last year Motor Trend wrote that Subaru might kill the stick altogether in the name of safety. And Motor Trend wasn’t the only one reporting the news of the likely demise of the company’s stick.

(Another tech development that will help drive a stake through the stick is an app on your phone that allows you to remotely start your car minutes before you get there. When it’s 100 degrees outside, or 10 degrees, that’s going to be a valuable and desired feature. But manual transmissions get parked in gear, not neutral, and you can’t remotely start a car that’s in gear.)

Driving a manual transmission is not only fun, but a valuable skill. It allows you to feel how the car works, and be more engaged with your surroundings, even if you are clueless under the hood.

Manual transmissions have, of course, been declining in the United States for several decades, due to ease of use for the automatic. They used to at least have the advantage of being cheaper engines and better on gas, but even that has changed. The computers on the automatic can nowget better mileage that you can with the clutch.

When you add up the long term decline of stick due to ease of use of the automatic, with the breakneck speed of technological safety improvement, you get a recipe for stick-the-fork-in-its-done.

In ten years the manual transmission, beloved by a decreasing percentage of car drivers, will be little more than a specialty item that needs to be custom ordered. It pains me to say it, but the stick is dead. Ultimately killed by safety.

 

January 8th, 2019

Judges to U.S. on Shutdown: ‘Pound Sand’

What, you may wonder, happens to suits against the federal government when the money spigot closes? And if you have a suit against the U.S. — say a Federal Tort Claims Act action — what should you do?

Good questions. Glad you asked.

Many courts have simply issued stays of all civil cases. Civil ones aren’t as urgent as criminal cases, as no one has their liberty in jeopardy.

But you know what? At least two judges in civil actions have now told the Department of Justice to go pound sand. One in West Virginia and one in Puerto Rico.

In the Puerto Rican case, a judge called the government request for a stay “laughable.” As per the Bloomberg article:

In a ruling denying the government request, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government “policy” that could theoretically justify staying such a lawsuit.

“Let us talk plain — they are simply an abdication by the president and the Congress (which could override a presidential veto) of the duty to govern responsibly to the end that all the laws may be faithfully executed,” Young said in the Jan. 2 ruling in San Juan. “Nor does such a lapse in any way excuse this court from exercising its own constitutional functions.”

Young…sarcastically compared the situation to a major corporation that “for whatever reason” decided not to pay its attorneys involved in pending litigation and instructed them not to interact with the court.

“Then the corporation says to the court, ‘We greatly regret any disruptions caused to the court and to other litigants, but please stay all proceedings until we get our act together.’ This does not constitute ‘good cause’ for any stay,” Young wrote. “In fact, it is laughable.”

Lawyers hate it when the judge calls your arguments “laughable.” There was no justification, in Judge Young’s view, for treating a plaintiff and defendant differently when it comes to moving a case forward. An excuse that doesn’t work for the plaintiff won’t work for a defendant.

In the West Virginia action, one judge issued an order granting a stay for all civil cases affected by the shutdown. But another judge said, nope, no way, not in my courtroom.

U.S. District Judge Joseph Goodwin issued a general order Jan. 2 exempting civil cases assigned to him from the federal shutdown.

So what happens if you have an action against the federal government? We’re not talking about immigration cases or police department consent orders or the census. We’re talking nuts and bolts basic cases of the type that don’t find their way into the news.

My suggestion? If a case is ready for suit, file that suit. Push the case forward. Take advantage of the fact that the defendant might not have a lawyer right now due to its own malfeasance.

Can you imagine starting a suit and the government failing to answer? A default. An automatic win for the plaintiff. Move straight forward to an assessment of damages.

Will a judge allow the default to go forward? It seems like it will depend on the judge. Some have clearly told the government to pound sand while others are cutting it slack.

But the argument by both Judges Goodwin and Young is compelling: The plaintiff in a civil suit against the U.S. would not get the benefit of a stay because the lawyers ran out of money, so the U.S. shouldn’t either.