November 13th, 2017

Subverting the Constitution

Brett J. Talley

The news, if you care about the courts and the constitution, was pretty awful last week. The lede in this LA Times story was the the Senate Judiciary Committee rubber-stamping a grossly unqualified and incompetent judicial nominee.

How do I know he was grossly unqualified and incompetent? Because he has just three years of actual practice  and has never tried a case:

Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has never tried a case, was unanimously rated “not qualified” by the American Bar Assn.’s judicial rating committee, has practiced law for only three years and, as a blogger last year, displayed a degree of partisanship unusual for a judicial nominee, denouncing “Hillary Rotten Clinton” and pledging support for the National Rifle Assn.

On Thursday, the Senate Judiciary Committee, on a party-line vote, approved him for a lifetime appointment to the federal bench.

And so while various politicos think and talk in terms of grooming judges for future higher judgeship where they can become activist in shaping policy and interpreting laws and the constitution in a way favorable to their political ideology, those of us in the trenches are forced to practice law in front of them. But this potential judge has never brought a case or even argued a motion:

“He’s practiced law for less than three years and never argued a motion, let alone brought a case. This is the least amount of experience I’ve seen in a judicial nominee,” said Kristine Lucius, executive vice president of the Leadership Conference on Civil and Human Rights.

Once upon a time, a judicial appointment was the capstone of a career spent in the law, with new judges bringing the wisdom of their decades of experience. Now it is turning into a political training ground for clueless baby lawyers.

But it is not enough to rail against Trump for doing this, because Trump only nominates. And nominating/appointing the most competent people to positions has not exactly been the hallmark of his administration.

Talley can only take the bench if the Senate says so. So far, the Judiciary Committee, which should know better than to sabotage the Constitution, simply bent over for Trump and took it. It is inconceivable that any person on that committee believes Talley has the competence for being a judge.

So what can go wrong? The people that will suffer are litigants who are force to come before him if the Senate continues the Judiciary Committee’s rubber stamping.

And if you think this will auger well for those of a conservative bent, under the theory that Talley is merely a political hack who will do their bidding, then I think you’re mistaken. Bad rulings lead to appeals. And delays. This is money and time. Getting a favorable ruling in the trial court only to be reversed on appeal is not a benefit.

There are many lawyers who, if a judge is about to commit reversible error, will stop the judge even if the ruling would favor them at trial. Because a tainted verdict is quite often a very bad problem. (Others, of course, will gleefully grab the bad decision and just worry about the ramifications later.)

The Senators know what they should do. The question is will they have the courage? Will they show respect for our Constitution? Will they allow incompetence to take the bench?

We will find out soon.

Addendum: I wrote this in 2009 about what I want to see in a SCOTUS nominee, but much of it holds true for lower level federal judges as well.  I want to see experience:  The SCOTUS Nominee and The Tissue Box Test

Elsewhere:

He has never tried a case, but Trump wants to make him judge for life (Phillips @ The Washington Post)

Brett Talley, a 36-year-old lawyer whom President Trump nominated for a lifetime federal judgeship, has practiced law for only three years and has yet to try a case….

…Talley’s lack of experience in the courtroom and his partisan commentaries, however, were repeatedly questioned by Democrats on the Judiciary Committee.

“Your overall qualifications and preparation for becoming a lifetime-appointed federal judge are a concern to me,” Sen. Dianne Feinstein (D-Calif.) said, according to her written questions to Talley.

Sen. Richard J. Durbin (D-Ill.) did not mince words, asking questions like: “How can you claim to be qualified for a lifetime appointment to supervise federal trials on a daily basis when you have never yourself tried a single case?” and “Do you think it is advisable to put people with literally no trial experience on the federal district court bench?”

Donald Trump’s Unqualified Judges (Mataconis @ Outside the Beltway)

Where [Trump] differs from those predecessors is in the percentage of nominees who have been rated “not qualified.” As can be seen [in the attached chart], he is far ahead of any of his four immediate predecessors in this category, with roughly 20% of his nominees to date receiving the rating.

Talley Ban (Greenfield @ Simple Justice)

He worked in the Alabama Attorney General’s office for a couple years, and now for DoJ since January. Talley’s is the resume for a senior associate position at Biglaw, and he would almost certainly get the job. It’s not a bad resume. It’s just not federal judge material…

…So what makes Brett Talley unqualified? It’s the package. He’s a legal kid, a babe in the legal woods. Born in 1981, a year before I graduated law school, he’s been admitted to practice ten years. Had he been in the trenches for all ten of those years, he still wouldn’t be qualified to serve as a federal district court judge. Nobody knows their ass from their elbow in so short a time. Nobody gains the breadth of legal, or human, experience without paying their lawyer dues. Regardless of the pieces that comprise the package, the sum total of the package is what matters. His package is almost empty.

 

 

 

 

October 23rd, 2017

Court: Junk Science Tossed Into Junker

Fun in Hollywood, not so much in the courtroom.

Most people when they hear about “junk science” assume that plaintiffs’ attorneys are trying to fabricate some pseudo-science to make out a case, usually in the context of a novel class action theory.

But those of us in the trenches know otherwise, that this isn’t the main problem. Junk science, on a day-to-day basis, is far more likely to spill from the mouths of defense experts in routine cases. I showed this a few years ago in a multi-part series dedicated to quickie medical exams by doctors hired by the defense. A three minute exam and presto!  — a finding that the plaintiff either isn’t injured, or that any injuries s/he has were pre-existing.

Some doctors are doing 1,000+ exams per year like this in the service of the insurance defense industry, which is quite the living if you don’t mind sacrificing your conscience.

Today I turn my sights on the biomechanical engineer. This is the person that will generally look at the vehicles in a crash (not an accident), and deconstruct it in such a way to determine that the victim wasn’t really injured by it. Four years ago Justice Arlene Bluth deconstructed that collision deconstruction for one such engineer, essentially showing the bogusosity of it all. (Is bogusosity a word? It should be.)

Last week the Appellate Division (Second Department) weighed in on that subject. And they were no more kind to the defense “expert” than Justice Bluth was.

Dovberg v Laubach was a hit-in-the-rear collision on the Long Island Expressway that pushed the plaintiff’s car into a tow truck in front of her:

The accident occurred when [the defendants’ vehicle] struck a vehicle operated by Scott Ramunni in the rear, propelling it into the rear of the plaintiff’s vehicle. The plaintiff’s vehicle was then propelled into a tow truck in front of her.

The key part of the story was how the plaintiff said that the injuries to her knees occurred — by striking the steering wheel or dashboard.

Dr. Alfred P. Bowles, II

So far, nothing out of the ordinary, right? But then the defendants said they would produce Dr. Alfred Bowles as an expert, he being a biomechanical engineer and board-certified surgeon. And he would testify “that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic activities.”

And how would Dr. Bowles do that? By looking at the medical records and the depositions.

Really. According to the decision of the appellate court, that was what he would rely upon. Not even an analysis of the damage to the vehicles themselves? Or the position of the body? This is science?

Oh, and some books. As per the decision, Dr. Bowles would also rely upon:

scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth. [emphasis added]

The trial court permitted this dubious testimony to go forward, allowing him to testify “with a reasonable degree of engineering certainty, [that] the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.”

A defense verdict resulted on the issue of causation.

But on appeal the Second Department was, shall we say, less than impressed with this testimony. And this was likely the reason:

Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision.

So no one asked the plaintiff how far forward the seat was — which is to say the actual position of the injured driver  — and then the expert testified that it didn’t matter? Distance to the dashboard didn’t matter? One inch and twelve inches are the same? Can you say bogusosity?

After a brief discussion of the long-recognized rule of Frye v United States — in that expert testimony must be based on scientific principles or procedures and is admissible only after a principle or procedure has gained general acceptance in its specified field — the court swiftly deconstructed Dr. Bowles’ testimony.

The court noted that the

“expert disclosure notice simply stated that Bowles analyzed the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard.

The court didn’t use the phrase “junk science,” or bogusosity, but I will. Because that’s the way I read this opinion.  Your mileage may vary but, frankly, I don’t see how.

So the next time you hear about junk science, you should understand and appreciate that, on a day to day basis, this is not some plaintiffs’-side invention.

The essential business model of insurance companies is to collect as much as possible in premiums and pay out as little as possible (while investing the money in the interim). Many insurance companies, and adjusters, and their syncofantic witnesses who profit from this form of testimony, don’t seem to particularly care how that preservation of premiums is accomplished. Or who gets screwed by their process.

 

October 20th, 2017

Lawyers (and other advocates) Need A Hobby

The Paine to Pain race logo

All too often in life, those who are professional advocates get so wrapped up in their little piece of the world that they fail to see the bigger picture. This happens with lawyers, of course, but likewise with any political advocacy group you find.

Go to Twitter, for example, and you’ll see no shortage of people obsessed about one thing, and one thing only (and that one thing is, all too often, politics).

But if you want to be effective, you have to actually leave that advocacy behind and engage your heart and mind in a completely unrelated hobby. Only then can you step outside of your work and even attempt to view it objectively.

If you are advocating, then you need that objectivity, because the people you’re trying to convince are not those that already drank your flavor of Kool Aide. The advocacy is geared toward are those that don’t have an opinion, or are open to being persuaded because they are not all-consumed with confirmation bias.

For me, as regular readers know, that  hobby is putting on the Paine to Pain half marathon trail race each year that now attracts about 700 athletes from 15 states. We get about 200 volunteers to help. This is not a small undertaking on my part.

But, believe it or not, I think this makes me a better lawyer. While it is time spent away from writing briefs and “being productive” in the office, it helps to give me perspective.

Having raced over these trails, and seen so many others do it including some with disabilities, I’m more rounded as a person. Not because it’s running, but because it is something other than lawyering.

It also makes me a better project manager, which is a large part of being a trial lawyer if you are the one with the burden of proof. If you don’t line all your ducks up in a row and prepare, prepare, prepare, then you won’t succeed, regardless of whether the “event” is a trial or a conference you are directing.

It doesn’t really matter what your passion is outside of your area of advocacy. It could be sports, music or your local church/synagogue/mosque.  If it happened to also be a community based hobby, as mine is, you will also get the incidental benefit of becoming more well known in your community, which might bring with it unexpected opportunities.

If your advocacy consumes you and you can’t look at the rest of the world objectively, you aren’t going to be a very good advocate. Engaging those outside hobbies are critical to perspective and effective advocacy. And might have additional professional benefits.

 

September 6th, 2017

New York Attempts Real Tort Reform

When I use this blog to write about tort reform, it’s often with scare quotes around the reform. Because reform means to improve something, not destroy it. When that phrase is commonly used, however, it’s used in conjunction with finding ways to close the courthouse doors to those who’ve been injured or wronged.

But that doesn’t mean that real tort reform isn’t taking place. Just this past year we saw three bills pass the New York Legislature by wide bipartisan margins, all currently awaiting the signature of Gov. Andrew Cuomo:

  1.  A subtle change in mandatory supplemental insurance if you are hit by an uninsured or underinsured vehicle that is likely to have a very dramatic positive effect for most drivers that carry more than the minimum insurance;
  2. A “date of discovery” rule for medical malpractice cases, so that the statute of limitations starts to run in cancer cases from the date the malpractice could reasonably have been discovered, not from the actual date of the malpractice; and
  3. A change regarding venue, so that cases can now be brought where a collision actually took place, even if none of the parties live in that county.

But there are more bills in the hopper, and by hopper I mean pending at various points in the vast legislative maze that needs to be navigated before any bill becomes law. Sam Senders, one of my readers who does structured settlements for Arcadia Settlements Group, put together a short list that he shared on LinkedIn, that you see below.

Perhaps if people started using the phrase tort reform properly it would shine a big, bold light on those that actually try to deform the civil justice system by slamming the courthouse doors closed on consumers.

Sam’s list of bills, with my editorial comments, that constitutes real tort reform:
—————–

1:  Admissibility of an Opposing Party’s Statement:  This bill modestly changes a hearsay rule by making admissible statements made by a company’s agent or employee. This change is supported by the State Courts of Superior Jurisdiction Committee and Tort Litigation Committee.

2: Apportionment of liability:  This bill comes into effect in tort cases where one defendant has settled, so that the remaining defendants must elect prior to trial whether to reduce liability by the amount of the settlement or by the amount of the equitable share of damages delegated to the settler in the verdict. Currently, the law is that a non-settling defendant gets a setoff from a settling defendant equal to the greater of the actual amount paid or the percentage of liability, with the determination made after verdict. This current practice actually acts to dissuade settlements, and that runs counter to the public policy of the state which is to encourage them.

3:  Expansion of economic and non-economic damages:  This long overdue bill adds to the types of damages that may be awarded to people for whose benefit a wrongful death action is brought, to include grief. Currently, New York is one of the few states in the nation that, by law, refuses to recognize grief as an element of damages in wrongful death cases.

4: Expansion of judgment creditor’s rights: This bill would add a new Section 1405 to the Civil Practice Law and Rules to expressly permit a plaintiff, as judgment creditor against a defendant, to recover and collect an unsatisfied judgment or portion of a judgment directly against a third-party defendant found liable for contribution or indemnification.

5:  Prohibits ex-parte interviews on personal injury and medical malpractice cases: Currently, defendants are permitted to interview a plaintiff’s treating physicians. Without a stenographer. Without the plaintiff or counsel being present or even notice being given to the plaintiff that the interview will occur. These interventions may, of course, impact treatment (many doctors want nothing do with lawyers and lawsuits) and they may also deeply affect privacy as defense lawyers may start asking questions about ailments wholly unrelated to the issues of a lawsuit. (Such as STDs, abortions, drug/alcohol issues, psychiatric treatment, etc.) This bill prohibits defense counsel from conducting such ex-parte interviews.

6:  Increases trial lawyer contingency fees on medical malpractice claims: Yeah, I know, supporting this looks very self-serving. But you know what? Ever since the Legislature dramatically cut attorney fees in medical malpractice cases in the ’80s, making them some of the lowest in the nation, many injured people can’t find lawyers. Many cases are simply too expensive and too time-consuming to warrant the risk given the crappy fees, effectively giving the medical community immunity for many acts of malpractice. This bill repeals the sliding scale fee for attorneys in medical, malpractice and brings the fees in line with other personal injury and wrongful death actions (one-third of the recovery).

There it is. Six bills. Covering real tort reform.

 

August 11th, 2017

About Eric Bolling’s $50 Million Defamation Suit – And the Ad Damnum Clause Loophole

Eric Bolling

News junkies know that yet another Fox News anchor has been shit-canned over allegations of sexual harassment, this time it being anchor Eric Bolling. Fox has “suspended” him for allegedly sending lewd texts and photos to colleagues.

But I’m not here to deal in the actual details, but rather, the $50 million suit he has filed against his accusers in New York state court, and the procedural quirk that allows him to make that claim despite New York’s apparent prohibition on doing it.

You see, Bolling’s attorney didn’t file a Summons with a Complaint, but rather, a Summons with Notice. To us New York lawyers, this is a very significant procedural issue. The brief document is here: EricBollingSummonsWithNotice

A Complaint has details in a defamation case, setting forth actual words that were written or uttered that are claimed to be false and injurious. This Summons with Notice crap, does not. It’s substance merely states:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed.

While it is legal to start a suit this way, it is most certainly not the way lawyers practice.  He now has just 20 days to file the Complaint or risk dismissal.

But time wasn’t a barrier for any of this — he could have waited to draft a Complaint if it had merit — so why start suit in such a crappy fashion?

My theory:

There will be no real lawsuit to follow. This was rushed out the door to intimidate others from stepping forward and grab press. Put a big whopper of a number in the filing — in this case $50M — and people who may claim to have been harassed may simply say I don’t need this crap.

There isn’t any other reason I can think of. If it is brought to the attention of a judge, s/he is likely to simply strike it. But the damage has already been done.

But wait!  What about that mammoth $50M number? Regular readers know that I have railed against those who put ad damnum clauses into their pleadings. New York (thankfully) outlawed this practice for personal injury cases back in 2003 (and defamation constitutes personal injury). It used to apply only to medical malpractice cases, but in 2003 was changed to all personal injury cases. CPLR 3017(c) states:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

New York’s Grand Poobah of Procedure, the late Prof. David Siegel, thought a monetary sanction should  be levied. In his authoritative 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 3017.”

But Bolling’s lawyer may have discovered a loophole to grab that press.  Because CPLR 3017(c) doesn’t list Summons with Notice as one of the documents that prohibits the ad damnum clause. Here it is again with emphasis added:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And yet, the Summons with Notice (CPLR 305) requires a prayer for relief (“shall contain”) except in medical malpractice cases:

(b) Summons and notice.  If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

So it appears that when CPLR 3017(c) was amended in 2003 to forbid the placing of a specific demand for relief in a Complaint, the Legislature forgot that CPLR 305 requires it in a Summons with Notice.

We lawyer types have a word for that discrepancy: Loophole. I don’t know if Bolling’s lawyers knew it existed when they drafted this document, but there it is anyway. But when I sat down to write about the odd way this suit started, I certainly didn’t realize it. While I came to critique the way this suit was started that’s what I found instead.

A loophole.

And one that the Legislature should fix in the next legislative session by amending both CPLR 305(b) to add all personal injury suits to the actions that prohibit the demands for relief, and adding Summons with Notice to the list of documents that prohibit it in 3017(c).