January 23rd, 2017

Sean Spicer and the Ill-Fitting Suit

Did Sean Spicer deliberately wear an ill-fitting suit?

Lawyers need to know a smidgen about fashion if we don’t want to look like fools before clients, courts and juries, which is why I’m bringing my limited sartorial skills to today’s post.

Many people across the country looked at Sean Spicer in his debut appearance as presidential spokesman, and the lies he was forced to spew about the size of the crowds for the inaugural Friday and the massive protests on Saturday, and then proceeded to…mock his ill-fitting suit.

He can see a picture of the slob. Many folks on the interwebs had fun with it. There is already a Go Fund Me page to Buy Sean Spicer A Suit That Fits that has been shared, currently, more than 6,000 times on Facebook. A couple of SeanSpicerSuit Twitter accounts have also appeared.

Daniel Politi at Slate snarked, for example:

“Some members of the media were engaged in deliberately false reporting,” Spicer said as he was gradually swallowed by his suit.

And my buddy Scott Greenfield, a lawyer fashionista, writes at Simple Justice:

According to respectable journalists, President Trump’s press secretary, Sean Spicer, beclowned himself already. Not by the ill-fitting suit he wore, but by declaring that the inauguration drew the “”largest audience to ever witness an inauguration, period.”

But perhaps we should rethink this?

Would somebody, in one of the most high-profile jobs on the planet — appearing for the first time before the international media in his new role in the White House — deliberately dress down?

And then I thought of some mocking Trump for taking the oath of office without the decency of buttoning his jacket. Except that he is hardly ever seen with a buttoned jacket (see for example, this photo of Republican nominees).

Are these slips of sartorial splendor connected?

This brought my mind back to an incident many years ago when I was trying a case in the Bronx. Opposing counsel came in each day with the points of his shirt collar haphazardly upturned. I finally pointed this out to him. Oh, he said, he knows. It was purposeful.

He didn’t want to look like The Insurance Company Lawyer in front of a Bronx jury, few of whom wear suits for anything other than a funeral.

Many in the media have commented on the fashion style of Michelle Obama, as well as that of Hillary Clinton and her pants suits, so I’m going to take first crack (I think) at the fashion style of the new administration (because how you present yourself, be it in law or politics, matters).

Here’s my Trump Administration fashion theory: You don’t wear Brooks Brothers to storm the castle. The mob behind the screaming populist with the billowing jowls, carrying pitchforks and torches, do not wear fine suits. The mob wants to destroy. The mob laughs at those who mock an ill-fitting suit.

To test my theory, I looked up images of Sean Spicer. And, unsurprisingly, I found photo after photo of him showing fine fashion sense in well-tailored clothes. Ask  yourself if this looks like a man who would inadvertently wear an overly large slob suit on his first day as presidential press secretary:

I think the ill-fitting suit that looked like it came from the wrong rack of a second-hand store was no accident. There’s an image-maker someplace advising on how to deliberately downgrade appearances, and I  think we’ll see much more of it.

As for me, when I speak in front of a jury, I would never wear french cuffs. Or a bow tie. Or braces. Or a pocket square. Or funky socks. I try to be boring.  But that’s just me, as I dress for the point I am trying to make — my point being that I don’t want my clothes to distract my jurors.

And when my clients appear before a jury, I don’t tell them to wear a suit if the only suit they own is the one they wear for special occasions, meaning funerals. I advise them to wear their church clothes, so they are comfortable and that neck tie doesn’t cause them to squirm.

I don’t think the Spicer/Trump clothing issues are an accident as they appeal to the mob, and we’ll see in the coming months whether my theory holds.

For now, though, be wary of quickly jumping all over the suit(s) that Spicer elects to wear. It’s quite possible that it’s all a very deliberate appeal to his base. And that we are being trolled.

Addendum, 1/23/17:

Fact: Sean Spicer’s Suit is Bad (GQ Magazine)

Sean Spicer Must Be Taking His Suit Advice from Donald Trump (Racked)

 

 

January 19th, 2017

But For Video (Pedestrian Rundown Version)

The moment before this woman was run down while in the cross walk

The video is graphic. Too graphic. A woman clearly in the cross walk gets hit by a mini school bus.

The story from this Brooklyn accident at Nostrand Ave. and Ave. M, comes courtesy of the Daily News.

Why write about it? Two reasons.

First, because the initial police report claimed the woman was out of the cross walk. Buried deep in the article:

The initial police report said the victim was “not in an intersection” but the video shows her clearly walking in the crosswalk. Police could not immediately account for the discrepancy.

How and why could that “error” happen?

The victim, Ayse Ayaz, suffered four broken ribs, a broken collarbone, a broken leg, and a swollen bloody eye. Ayaz woke up in the emergency room. The information about being out of the cross walk, in other words, was unlikely to come from her.

Rather, the false information most likely came from the driver of the bus. The video was found later by a local business.

I’ve covered bus accidents in the past on this blog, on the subject of trying to alter the “facts” in favor of the bus company and against the victim. Most notably, I wrote up in 2012 how NYC Transit Authority bus drivers weren’t permitted to call the police after collisions, as required by law, but rather, had to radio in to a supervisor who would come “investigate.”

The questions for this bus collision would follow the same path: Who was the first person the driver called? Was it 911 or some dispatcher? If 911, was the story told at first different from the one told to the police later? If it was to the dispatcher first, why?

This is the nature of litigation. People will lie to protect themselves, which appears to be what happened here. Except now there is something very rare — hard proof of what actually happened.

Over the years readers have seen me approach many litigation issues here with a cynical eye, not quite trusting the statements that may be made in support of what position or another. There’s a reason.

It’s not in the least bit uncommon for a driver to tell a wholly different story than the victim, or the eyewitness standing on the corner, if that person actually sticks around and the police actually write that person’s name down in a report.

I know, you think the cops always write down the names of witnesses. It ain’t so. And the failure to take a couple of minutes to do so can cause years of litigation.

In fact, this same scenario happened to me, when I witnessed a pedestrian hit by a car. I gave my name to both the driver and to the cops. And you know what? I was told by one of the attorneys at my deposition that the cops never wrote my name/number down in the report. If the driver didn’t have my name and number also, this piece of evidence (my eyewitness account) would have been lost to the actual participants.

If not for this video in this bus-pedestrian collision, the bus driver would no doubt have an insurance company attorney accusing the pedestrian of being a liar when she claimed she was in the cross walk. She would, in effect, have been victimized twice.

I said there were two reasons to write, and now comes the second: This is all something to think about when you hear people talk about a “litigation explosion” and tort “reform,” as if problems were caused by the victims themselves.

It’s worth nothing that if the injuries of the victim are bad, it wouldn’t be a private insurance company paying for the losses. Not only could the victim be deprived of full compensation, but also, some of those costs of caring for the injured could be shifted to you and I, the taxpayers.

And so it is that I started this piece with a bus-pedestrian collision. But end it at a public policy discussion, which is important due to the shift in the political winds.

 

January 18th, 2017

Zervos v. Trump (An Apprentice Sues Trump for Defamation — A Look at the Issues)

Summer Zervos

Donald Trump, who’s becoming a regular on these pages, was sued yesterday for defamation by a former Apprentice contestant, and it is clear he will have his hands full with this one. This post will look at a dozen issues in the Complaint, both as to how plaintiff’s counsel screwed some things up with lousy lawyering, and what may give Trump trouble.

First:  Suit was brought by Summer Zervos. She claimed (along with many other women) during the election campaign that Trump sexually assaulted her back in 2007, and he called her a liar for having said so. So, the statute of limitations having expired for assault, she sued for defamation on his recent denials.

The same tactic was used against Bill Cosby, using the denial of old assault claims as a means to bring a defamation action. Cosby’s claim of “self-defense” in denying the accusations failed (in federal court in Massachusetts).

Second:  She is represented by “celebrity attorney” Gloria Allred, who last appeared on my blog in 2009, and not in a good way. Calling her a publicity hound would be an insult to hounds everywhere. When publicity drives a suit, instead of good lawyering, opportunities are lost (for the client).

Third:   Today’s Exhibit A is the complaint Allred apparently drafted with her local counsel, Mariann Meier Wang, and I say apparently because if you read the first few pages, it doesn’t look anything like a legal pleading and I can’t imagine any competent lawyer drafting anything like this. (Zervos v. Trump)

It is a scream for publicity. A howl for attention. Perhaps, in some bizarre way, she is perfect for Trump — two people who will stop at nothing until they get the cameras turned on them. It has been used for an improper purpose, to deliberately put inflammatory material before the court for the purposes of garnering press.

For the non-lawyers checking in, a complaint is supposed to have “plain and concise statements” in consecutive paragraphs. They are supposed to have, as much as practicable, a single allegation in each paragraph.

Lawyers are kinda orderly like that. Because it makes it easy to admit or deny allegations and the court can then figure out what actual facts or issues are in dispute. And that can be really, really important because…

Fourth: The complaint, as it exists now, is a lost opportunity. A smart lawyer would put in those simple statements, then see if Trump denies them, and then cross-examine him on those denials. If done right, this can be very effective. Because if a defendant denies something he should admit, he has now done it with his counsel by his side. Not only is the defendant tarnished, but so is the lawyer. Both the witness and his lawyer would look like a fool in front of a jury if Trump denies a fact that is easily provable.

But as written now, it is impossible for Trump to admit or deny almost every single paragraph due to the drafting. And that is a big bonus for Trump.

Fifth: The plaintiff failed to verify the complaint. Oops.  This is real basic lawyering, and it’s a simple couple paragraphs at the end of the complaint where the signer states that the above is true. It is not required for the complaint, but if the complaint is verified by either the plaintiff or the lawyer, then the answer must  be verified too. And since Trump lives in Manhattan, where the suit was brought, he could be forced to personally sign that answer, with its admissions and denials.

An interesting side note on this is that the lawyer can verify the answer if lawyer and client are in different counties. But it seems doubtful that Trump will change his residency (based on current comments) and odds are  his lawyer will be in Manhattan. So if the plaintiff had been smart enough to verify, and had used simple statements, Trump could have been forced to sign on the dotted line. Now he doesn’t.

This was a blown opportunity.

Sixth: While those golden opportunities are lost, there is other material in there that will be fought over tooth and nail in the early going that will give Trump a headache. Such as proving the falsity of comments related to other women. Like this Trump tweet:

“Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”

This can be a real problem for Trump, as he potentially brought other women into the suit as witnesses with his over-the-top tweets. This is not a place he wants to be, for while he may be able to attack this particular plaintiff as a fabricator (‘Look, she kept coming back to me, over and over again!’) that is more difficult with more witnesses.

Seventh: In New York, parts of pleadings can be struck for unnecessarily putting “scandalous or prejudicial matter” in them (CPLR 3024). While it is highly unlikely that a court would kill the whole suit, of course, given that we have liberal pleading requirements that focuses on putting the defendant on notice of the facts, this could be an early issue. It wouldn’t be a winning argument, but would be one used to stall and delay the suit with motion practice.

Eighth: Another early defense argument may be that the conduct of putting immaterial comments and opinions in the complaint was done for an inherently improper reason, and that could theoretically be sanctionable under our court rules.  (While it would be a rare court that grants sanctions in New York, I expect a Trump lawyer to go on the offense. More motion practice, more delays.)

The response would no doubt be that it is impossible to harm Trump with the allegations, even if some of the material is irrelevant or that the complaint suffers from prolixity. In other words, no harm, no foul. While it’s a crappy complaint from a lawyer’s perspective, this would be the better of the two arguments.

Ninth: But the reason to go after the manner of filing the complaint is that this doesn’t appear to be a case likely to be dismissed outright by the court, but rather, one that will go through discovery. There appear to be sufficient allegations in there that x happened and then Trump lied about it, thereby defaming the plaintiff. And that means, ultimately, the deposition of Donald Trump on his conduct and comments. And because the complaint references other women as well, the discovery would be quite wide-ranging.

If Trump can somehow force the complaint to be modified, he could conceivably try to limit discovery when it comes to his conduct toward women other than the plaintiff.

Tenth: The plaintiff lives in California and the defendant in New York. Federal court was, therefore, an option. In favor of bringing the action in federal court, instead of state court which counsel chose, is that federal court is far less likely to put up with nonsense and you are far more likely to get far-reaching discovery. While it depends on the particular judge you draw, state judges tend to be more restrictive here.

In addition, federal actions tend to move much faster. So if the plaintiff actually had a political motive — such as getting a deposition of Trump done before the 2018 mid-term elections — federal court would have been the way to go.

Eleventh: On the other hand, federal court has a one-day limit on depositions. New York state court does not. That means Trump can’t filibuster his way through the day with word salad answers and hope that it’s done.

Twelfth: I said months ago that Donald Trump was a one-man-bar-exam. Everything he does ends litigiously. It doesn’t appear that this will stop anytime soon.

 

January 17th, 2017

Thanks Obama

I confess I will greatly miss the presidency of Barack Obama. He has the qualities that I most value in a president:

  1. I want  a policy wonk. Fundamental to any leader is an ability to understand that the choices aren’t between good and bad, but between bad and awful. And you want a president with the deep understanding of policy to figure out which is which.
  2. I want someone to appoint qualified people. The vast, vast majority of America has no idea who the head of the EPA, FEMA, Department of Energy, or HUD are. You know why? Because they didn’t become part of any grand screw-up. There’s something to be said for not knowing who they are, as it means they are most likely doing their jobs without conflict.
  3. I want someone that doesn’t make rash decisions.  And that’s because policy is full of nuance. Slow and deliberate is the way to go, so that a president can absorb as much information and as many opinions as possible.
  4. I want someone who can keep his cool under pressure. Every president will face pressure, be it from foreign conflicts, hostage/kidnapping/terrorism or domestic political problems. Being able to take the long view, instead of instantly ranting and raging, is a quality to be admired.
  5. I want a scandal-free administration.  When was the last time a president walked out of the oval office after 8 years without major scandal?
  6. I do not want drama. If there is some sort of drama regarding the White House, it is never, ever good.
  7. I want someone who doesn’t blanch at the prospect of admitting error and reversing course. Every president will make mistakes, and ego often gets in the way of admitting error. But it’s far better than making the situation worse by continuing on, in the desperate hope the bad decision will magically turn good.
  8. A fundamental appreciation for the fact that ignorance and arrogance are both awful in a president, and together they can be deadly.

I put up these qualities, instead of issues, because there are thousands of issues that will cross a president’s desk.  Cherry-picking what I liked (or didn’t like) would miss the point about the human qualities that someone should have to be an effective president. Ignorance and arrogance are both awful in a president, and together they can be deadly.

Historians will remember Obama well.

I wish we’d had an election between Joe Biden and John Kasich. It would have been between two fundamentally decent people, regardless of what you thought of their politics, and no doubt focused on policy issues. It would likely have been boring. When it comes to politics, I usually like boring. (And the press would have hated it which is why so much free press is given to the most outrageous candidates.)

The nation is worse off as a result.

 

December 6th, 2016

Opting Out of Uber’s Forced Arbitration (The Clock is Ticking)

Uber logo. Used without its permission.

Uber logo. Used without its permission.

You have until December 21st. That’s it. But you can opt out.

Here’s the deal: Uber changed its terms of service to force people into arbitrations, taking away consumers’ rights to sue the ride sharing company if something goes wrong. Like plow into another car because the driver was looking at his phone to see where his next right might come from.

That kind of thing.

And compulsory arbitration is very bad for the little guy, as I’ve discussed earlier, as arbitrators would love to have the repeat business of the companies that are always involved in disputes. There is a hidden financial motivation to arbitrators to be gentle to Uber and other large businesses so that they continue to hire said arbitrators.

That is why, for example, Wells Fargo is trying hard to force claims against it for creating sham accounts into arbitration, instead of facing the wrath of juries.

So while Big Business of all stripes can pull it’s business from arbitrators who might not be as nice as they’d like, the one-and-done consumer has no leverage. None. Nada. Zip.

Advantage: Big Biz.

So, courtesy of Marea L. Wachsman, comes this easy-peasy method of preserving your rights against Uber.

Take it away Marea:
————————-

mareawachsman_492128262

Marea Wachsman, of Schreier & Wachsman, LLP

If a passenger is injured in an Uber vehicle due to its negligence, passengers were required to arbitrate their claims for personal injuries before the American Arbitration Association.  They were required to arbitrate pursuant to the terms and conditions of the Uber contract the passenger “accepts” when using Uber.

On July 29, 2016, however, Judge Rakoff from the Southern District ruled that the Uber arbitration terms were not conspicuous enough or did not evince the users “unambiguous manifestation of ascent” to the arbitration provision and therefore the court ruled that the arbitration provision was not enforceable.

With its forced arbitration clause tossed into the dumper, Uber tried again.

On November 14, 2016 Uber sent an email to its users to undermine Judge Rakoff’s decision, announcing it was updating its Terms effective November 21, 2016 —  while everyone was scampering somewhere, or doing something, in anticipation of  Thanksgiving.

In that same email, Uber instructed its users to read the new Terms and expressly stated it had “revised our arbitration agreement.”  The revision is with an eye to ensuring that negligence claims by passengers must have their claims for personal injuries arbitrated, and not litigated, thereby waiving the passengers’ rights to a jury trial.

Fortunately, you can reject the November 21, 2016 Uber Terms, by providing Uber with written notice by mail, by hand delivery or by email within 30 days of November 21, 2016.

If the rejection is by email, the email must come from the email associated with the individuals account and addressed to change-dr@Uber.com. The notice to reject the Terms must include the individuals full name and state your explicit intent to reject the changes to the Terms.

By rejecting the November 21, 2016 Terms, the individual continues to be bound by the Terms the individual first agreed to when the individual signed up with Uber.  Thus, presumably, the individual would still have the protection Judge Rakoff provided in having the claims for personal injury for an Uber passenger against Uber heard in a courtroom and not in an arbitration hall.

You can find the information buried on Uber’s legal page, in paragraph 5, reprinted in full below:

Uber may amend the Terms from time to time. Amendments will be effective upon Uber’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Uber changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Uber written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Uber USA, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: change-dr@uber.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).