Jeff Zarzynski of Milwaukee, who created an appalling ad denigrating the profession.

As of 2008, there were about 760,000 lawyers in the country that held jobs. Most are highly ethical, regardless of the clients they represent, and try their best to conduct themselves professionally. But it only takes a small minority to give the rest a bad name. It’s the outliers that always cause problems, for those are the ones that make news and stay in the minds of the public.

Today, we look at three of them:

1.   Milwaukee attorney Jeff Zarzynski created a video showing him as a bully who learned to shake down other kids in school. And now, he says, he shakes down others as a personal injury attorney. He thinks he’s being funny, but the ad looks like it was created by corporate America looking to persuade legislators to slam the courthouse doors on people.

Note to Zarzynski: A shake down is “extortion of money, as by blackmail.” I think I’ve got a fair sense of humor, but your attempt at comedy fails spectacularly. You tell people that you demand things you are not entitled to. Jurors will not be amused. Nor for that matter, will the vast majority of ethical and hard working professionals you manage to tarnish by association. (Hat tip, Bob Ambrogi)

2.   Ben Stein is suing Kyocera. Stein is an actor, conservative speechwriter and economist, and game show host. And he is also a lawyer. He claims he almost came to terms with Kyocera for a 300K advertising contract, then the company pulled out. Stein claims that this contract that was never signed was breached. And that Kyocera owes him 300K as a result.

The more newsworthy party, however, is that Stein claims as part of the suit that there was a “wrongful discharge in violation of fundamental public policy,” in which he claims that Kyocera’s withdrawal of their offer discriminates against him for his religious beliefs. What are those religious beliefs? That he doesn’t believe in global warming. He should know better than to bring such a stupid claim, especially given his conservative world view. Complaint is here, see page 9, third cause of action. As per scathing commentary at Gawker:

Also, according to Stein, he has a right to the $300,000 under the Constitution, which guarantees him freedom of religion. See, Stein believes that global warming isn’t real because “God, and not man, control[s] the weather.” When Kyocera declined to pay Stein $300,000 to represent the corporation in part because it doesn’t want to be associated with that belief, it violated Stein’s constitutional right to $300,000. He also accuses Kyocera of violating his “freedom of speech” and “political freedom.” Stein has no political freedom, because Kyocera robbed him of the freedom when it refused to pay him $300,000.

3.   Miami maritime Attorney Brett Rivkind gets a nod here for sending out a “press release,”* which is little more than his solicitation of vicitms of the Costa Concordia shipwreck. The headline reads:

Maritime Attorney Brett Rivkind Expresses Shock Over Costa Concordia Deadly Crash.

Gee, thanks. And the opening of this awful thing is — surprise! — about him, not the accident or the victims. I’m not sure what the anti-solicitation rules are in Florida with respect to targeted advertising after a disaster, but even if this thing passes muster it stinks to high heaven. It was conduct almost identical to this —  the crash of the Staten Island Ferry that took 11 lives and resulted in a slew of immediate lawyer ads —  that led to New York’s 30-day anti-solicitation rule. (Hat tip, George Wallace, via Twitter. Main site: A Fool in the Forest)

Regardless of whether the conduct of  these individuals violates an ethics rule of their particular jurisdictions, the conduct of each is an embarrassment to the profession, and lawyers should howl in protest when we see it. It feeds into all of the worst beliefs that many have of lawyers and our justice system (much of it fostered by big business looking to cut back on consumer rights) and helps to perpetuate it.

And that helps to create an overly cynical population, and an overly cynical jury pool, such that even those with the most meritorious of cases are left fighting uphill battles before an opening statement ever takes place. The legal playing field should be a level one, and lawyers should not be helping to create negative perceptions that will hurt those who turn to the courts seeking their ounce of justice. A pox on each of their houses for helping to create such negative perceptions which run directly contrary to the way most attorneys conduct themselves.

————

Addendum: Scott Greenfield weighs in with Another Bottom: Jeff Zarzynski, the Bully

*The link was coded “No Follow” so as not to inadvertently give Google juice to the “press release.”

After Barack Hussein Obama was elected President, I wrote President-Elect Obama — Change Has Finally Arrived.

And that post from three years ago is my post for today.

Photo credit: Julie Turkewitz

photo credit: FrogMiller, close up of US Constitution from National Archives

Have I seen this play before? A young guy, believing he is anonymous, spews on the web. When we last saw the show, it was starring  a doctor known as Flea writing about his malpractice trial. He ended out on the front page of the Boston Globe.

Today we may be seeing the reincarnation of Flea, in the Twitter persona of Article III Clerk,* an arrogant, pompous judicial clerk writing about his boss and the litigants that come before the court. And doing so in scathing terms.

But is it real? Or is s/he merely a humorist of some type?

He wouldn’t be the first person to use an Article III pseudonym, of course, as Article III Groupie preceded him by many years, with a delicious wit at Underneath their Robes. She described herself as “a federal judicial starf**ker.” She had style. And A3G wasn’t anything close to arrogant as she ran her stories on judicial “divas and hotties.” When A3G finally revealed herself six years ago this week, she was actually David Lat. He quickly resigned his post as Assistant United States Attorney and went on to blogging greatness at Above the Law.

(For the non-lawyers, Article III refers to the third article of the Constitution, which establishes the judiciary. Rick Santorum thinks it’s the least important part of government. Why? Because it comes third:

“Article I is Congress, Article II is the president and Article III is the courts. If it was the most important, they wouldn’t have put it third.”

OK, I digressed, but you gotta admit that was worth it, right?)

Back to Article III Clerk. His Twitter feeds describes him thusly:

Current law clerk for a Senior U.S. District Judge on the East Coast. He’s really fucking old, so I roll the dice of justice on my own.

So right out of the box, before knowing nothing else about him, we know something is afoot. Is it humor, or a twenty-something speaking the truth and playing with matches under the cover of anonymity? When we peek inside his feed that just started on January 11th, we see some stuff that could constitute decent criticism and wit:

NOTE TO PLAINTIFF’S LAWYERS: If you ignore Twombly and Iqbal in the Opp to a MTD, you should be disbarred. They happened. Deal with it.

…

If you put “Esquire” after your name at the end of your motion, I will rule against you. Every. Time.

…

The opposition you filed was goddamn unreadable. You think I want 10 more typo-ridden pages about what light I should view evidence in?

Not bad. Could be worth repeating if you like that stuff.

But….and you knew there was going to be a “but” didn’t you? Let’s check out a few other tweets (or twits) that seem to dance up to the line —  if not over that line if the feed is not a parody or satire, and could place the author’s license at risk:

Judge called from home today to “check in.” I got it under control you senile fuck. Go back to napping underneath 20 blankets.

…

Thing is, if I don’t grant this MSJ, this thing might actually go to trial. Which means I have to interact with Judge in person. Paaassssss.

…

Clerk of court is either on smack or she is retarded. 2 days since I gave her ruling. Release my brilliance to the people. Let them weep.

…

@lawschoollawlz I’m a de facto Art. III judge at age 27 & haven’t talked to “boss” in 3 days. What in the living fuck are you talking about?

…

I really, really hope the Judge doesn’t die while I’m clerking.

Not sure what to think. Would this person really want his identify disclosed? Remember the Golden Rule of the digital age: Don’t type anything you’re afraid to see on the front page of the paper. What are the ramifications, if he speaks the truth? If truthful, he’s revealed that he works for a senior federal judge on the east coast who may not be well, that he is 27, and the court clerk is female. That’s a lot of biographical data to narrow down the possibilities. Also, that he’s incredibly arrogant for a young pup that may never have stood in the well himself.

Hopefully, it’s just an attempt at humor.

*Update 1/15/12 - The Twitter feed of @ArticleIIIClerk has gone dead. Which leads me to guess it might have been real, and not a parody. Also, that the clerk woke up and realized he was making a big mistake. Just my guess. Anyone with real info, feel free to let me know in the comments or via email.

This is an update on the Joseph Rakofsky defamation case in which I was sued along with many, many others, and for which I am now local counsel for 35 of the defendants (with Marc Randazza as pro hac vice defense).

Two bits of information today. First is an order from the court regarding a proposed  Order to Show Cause for some type of relief. This was apparently brought by Mr. Rakofsky. This was not our submission, nor that of any other defendant that I know of. I have not seen the underlying papers, as such proposed orders are brought to the court without notice to adversaries. Copy here:  Rakfosky Order-1.3.12 – OTSC. The order reads:

Decline to sign

Papers are incomprehensible

In the other bit of news, criminal defense lawyer Lori Palmieri of Florida has apparently settled with the plaintiff for undisclosed terms last July. Copy is here: Rakofsky-Palmieri-Settlement.  Her original post on Mr. Rakofsky, for which she was sued, is gone, and her apology to Mr. Rakofsky is here.

—–

Update, 1/12/12 – The papers that Justice Goodman deemed “incomprehensible” have now been procured, requesting a smorgasbord of relief: RakofskyOrderToShowCause.  On a fast read, the following appears to be new:

The following have settled: Martha Sperry and Martha Sperry Daily, Advantage Advocates, Heslep & Associates.

Mr. Rakofsky seeks to add new defendants. One of them is Google, which he wants to add as a defendant because  ”because it has refused to preserve certain information in the absence of a formal Court order…” (pp. 8-9). Previously he had sought to add Yahoo! and Techdirt, among others, and they are in this request also. The prior attempt was rejected because a stay was in place.

Update #2, 1/13/12 - Mr. Rakofsky has moved in the Appellate Division for a partial lifting of the stay: Rakofsky AppDiv Motion

Update #3, 1/27/12 – Our response to Mr. Rakofsky’s request for a partial lifting of the stay:Memo Of Law and Turkewitz Affidavit

Photo credit: Catholic Moxie

I do not come to praise Rick Santorum, nor condemn him. But I’m here to defend him.

What? You don’t believe me?

This is the brief backstory on recent criticism of Santorum: His wife Karen — a non-practicing attorney, nurse and mother of three at the time —  brought a medical malpractice case  concerning a violent chiropractic manipulation in 1996. (Santorum Malpractice Complaint). It resulted in a herniated disk in her lower back that required surgery. She sued for $500,000, and a  jury awarded her $350,000 in 2000. The judge subsequently reduced it to $175,000.

Given Rick Santorum’s prior advocacy of a $250,000 cap on malpractice cases, folks have screamed hypocrisy ever since.

With Santorum almost winning the Iowa caucus, and set, perhaps, to do well in South Carolina shortly, more attention is being paid to him as a potential Republican nominee, and this tort “reform” issue has reared its head again. (See, ABC News from 1/6/12,Rick Santorum in 2005: Double Talk on Tort Reform?)

On Friday, my friend Jordan Rushie sent this tweet my way:

It’s time for me to defend Rick Santorum against charges of hypocrisy for his wife’s suit. Because I don’t think he earned it.

First  up, spouses are entitled to have differing opinions.

Exhibit A –> High profile Democratic consultant James Carville is married to high profile Republican consultant Mary Matlin.

Exhibit B –> George Bush was anti abortion and gay rights. But Laura Bush supports both.

Now look at your own family and ask yourself if everyone agrees with everyone else. Do I really need to say more? Rick was not a party to Karen’s suit, so you can’t honestly call him a hypocrite  for it (unlike, for example, Judge Robert Bork and his slip and fall suit). And it’s foolish to suggest that the chiropractor gets immunity from negligent conduct simply because the patient’s spouse has a different political belief on this issue.

Second up: Rick testified at his wife’s trial, doesn’t that make him a hypocrite? Answer, no. He was a fact witness. Fact witnesses offer up their observations. He testified, according to the post-trial memo, about how the pain restricted her ability to care for their children, restricted her activities, and was a factor in significant and demoralizing weight gain. He could, technically, have been subpoened to testify if he refused to voluntarily come to court. I doubt that happened, of course, as he probably doesn’t want to sleep on the couch.  While it would be easy to simply quip “happy wife is happy life,” the legal reality is that he had no choice but to testify if that’s what one of the parties to the suit wanted. If Santorum witnessed your auto accident, you could force him to testify no matter how much you like/dislike him.

Third up: He probably gets to enjoy her money, doesn’t that make him a hypocrite? The answer again, is no. This issue of  money comes up often in the personal injury field, of course, as people want to know what will happen if a claimant prevails. But the money isn’t a prize, nor a lottery, nor a windfall of any kind. (And it isn’t “winnings” as Shpoonkle thinks.) It’s compensation. Someone suffered a loss and the money is designed to make that person whole.

Does it matter if Karen shares the money with Rick? Of course not.  I would never tell people what they should do with money they’ve received as compensation in a lawsuit. If Karen wanted to donate it to a charity, she could. If she wanted to spend it on her kids or her husband, she could. If she wanted to squander it on fast cars and loose woman, more power to her and let’s sell a few tickets. But it isn’t for us to say what she should do with her money that was awarded simply to make her whole.

Are there times when a jury gives an outlier verdict that’s way too high or way too low? Sure. And that’s why, in Pennsylvania, the judge was empowered to order a new trial if Karen Santorum didn’t accept a lower award. That’s the way the system is supposed to work. There’s no need for a one-size fits all cap when there is already a three-tiered system to protect litigants: 1) jury; 2) trial judge; and 3) appellate court. And that is the way New York also works (See: How New York Caps Personal Injury Damages). Ironically, the very outcome of the case, with the judge knocking down the award, is stark evidence that Rick Santorum’s own ideas of artificial one-size-fits-all caps are utterly unnecessary, and would only further victimize those who’ve been most badly injured in the first place. (See: Does Tort “Reform” Kill Patients?)

In sum, there is no colorable argument on why the courthouse door should have been slammed shut on Karen Santorum. And if she can’t be faulted for bringing the suit, then her husband really can’t be called a hypocrite because of it. We should not be in the business of looking for ways to give protections and immunities to those that injure others. Our civil justice system is built on the concept of personal responsibility.

There may be, of course, plenty of reasons for people to say negative things about various candidates and their tort “reform” platforms, though it always seems to be Republicans that advocate them. Despite  all of the cadidates running on small-government platforms, most (all?) advocate big government protectionism  for those that injure others through negligence. And they advocate such federal intrusions on purely intrastate matters.

Why would  small-government candidates prostitute their principles on this issue? I have only one viable explanation: That the lure of campaign contributions from Fortune 500 companies that are most likely to benefit from an evisceration of the civil justice system is just too great. And when substantial amounts of money talk, principles fall by the wayside.

I’ve addressed this topic numerous times, and won’t bother to repeat it all here. But when so-called small-governement candidates use tort “reform” to woo Tea Partiers and other conservatives, then I think they face serious hypocrisy problems by advocating big government protections for people or companies that injure others. And for more on that, you can read this: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions). See also: Second Tea Party Leader Opposes Federal Tort Reform from Andrew Cochran at 7th Amendment Advocate.

———-

See also, the transcript of a radio interview on this subject from 2000: Santorum On Tort Reform.

Hat tips to Jordan Rushie, Christopher Sawyer, and Ben Glass (source of documents), who may not agree with my conclusions.

Junie Hoang has agreed to surrender her anonymity to sue IMDb/Amazon for invasion of privacy

Back in November, a suit made national headlines when an anonymous actress sued the Internet Movie Database (owned by Amazon) for invading her privacy. She alleged that Amazon had her credit card information to find her date of birth, and gave it to IMDb to put up on its site. This issue was important given the rampant discrimination in Hollywood against actresses who reach the age of 40. She claimed that IMDb got the date of birth from Amazon.

The lawsuit sounds in fraud and breach of contract given various privacy and consumer protection laws, as well as Amazon’s agreement to handle personal information “carefully and sensibly.”

I predicted back then that Amazon’s lawyers would attack the concept of anonymity, under the theory that the actress would drop the suit if forced to reveal her name. And I said Amazon would win that fight as federal courts have a very high bar for anonymous suits.

Amazon did exactly that, and as I predicted, they persevered and the judge dismissed the suit forcing her to either drop the matter or go public.

And actress Huang Hoang, using the stage name Junie Hoang, likely surprised the hell out of Amazon’s lawyers  by telling them, in substance, vade et caca in pilleum et ipse traheatur super aures tuo (go shit in a hat and pull it down over your ears).  She decided to refile suit under her real name. It’s nice to see that she has the courage of her convictions.

By the way, the underlying basis for why Ms. Hoang wanted to keep her age private, and was outraged at what she believes was the breach of her privacy is here:

Women over 40 make up 24.3 percent of the U.S. population, but a casting analysis by the Screen Actors Guild showed actresses over 40 get just 12.5 percent of roles for television and film. Men of that age are also about a quarter of the population, but nearly equal their ranks in casting.

In a case that should shock the conscience of all New Yorkers, five people held up a bus in Brooklyn a few day before Christmas and threatened to kill the driver with a gun. According to the Sheepshead Bites Blog, they soon jumped off, and onto another bus, and the police were able to make arrests because of  a passenger’s 911 call.

But this isn’t the shocking part — any big city will have some depraved citizens breaking the law.

No, the shocking part is that, according to the article, the driver of the bus, employed by the New York City Transit Authority, was prohibited by its own regulations from calling the police.

According to the  article a NYS Assemblyman who called Transit to inquire…and the part about prohibitions from calling the police just leaped off the page at me:

[Assemblyman Rory] Lancman’s office also noted that it’s fortunate a bystander on the bus called the police, as MTA internal directives bar MTA employees from calling the police directly. Instead, they are ordered to inform their supervisors, and MTA representatives respond to the scene themselves, and only inform the police if they feel it’s warranted. It was noted that had the bystander not called, police would not have been able to pursue the suspects after they boarded another bus.

So, four questions to ponder:

1. Does this policy preventing bus drivers from calling the police really exist?
2. If it does, what are the ramifications with respect to the injured?
3. What are the ramifications for civil suits?
4. Is it legal?

Answer: Yes, it appears to be true. It puts people’s lives at risk. It prevents proper police investigation. And no, it does not appear to be legal.

I turned to one of my friends, David Roth (of Roth & Roth) to give me the goods on this, and see if he had more than Assemblyman Lancman. Roth has had his fair share of cases against Transit, and has lectured to other lawyers on the subject. And, he’s investigated this very issue.

Now here’s the scoop, according to a recent deposition that Roth took: The bus driver is not permitted to directly call the police. The driver has a radio and it only goes one place — to dispatch. So if someone has a heart attack or is bleeding to death after an accident, there is an automatic delay as the story first gets told to dispatch and then dispatch gives the story secondhand to 911. The same is true for a criminal act. The story must get told twice with the risk of facts getting muddled (or time wasted) along the way. And 911 doesn’t have direct access to bystanders on the scene to get additional medical information, such as a medical history, to assist the EMTs racing to the scene.

I’ve discussed this type of institutional negligence before: In 2007 a school was found to have a rule that prohibited the staff from calling 911 in an emergency, forcing delays as a problem winds its way through bureaucracy: How To Kill A Student: A Lesson From A Queens High School.

But that risk to life and limb isn’t the sole reason to write this piece. You see, when dispatch calls 911 after an accident, then dispatch will tell 911 to only send an ambulance, and not the police. The police are summoned for criminal actions. And Transit sends its own supervisor over to the accident to “investigate.”

Why is that important, and why did I put investigate in quotes? Because if the police are called after an accident then they take the names of witnesses and look for evidence. But if a TA supervisor is called, instead of the police, then witnesses scatter due to the delay (or perhaps because the Supervisor lets them know they can, you know, just leave) and it makes it more difficult for the injured passenger(s) to bring the TA to account if the driver was at fault.

But according to Roth, this runs afoul of the law’s requirement for the vehicle operator to contact the police right away:

All operators of motor vehicle’s are required to contact the police as soon as practicable according to VTL §600 when someone is injured in an accident. This includes buses.  Bus operators for the NYCTA and the related agencies are required to call dispatch which is located in East New York and then the supervisors at dispatch call the police.

The TA dispatchers call the ambulance when someone is injured but do not call the police. The dispatchers call the TA road dispatchers who come to the scene to do their own investigation. This has the insidious effect of allowing the TA to sanitize the accident scene and prevent an independent investigation by the police.

Is Roth right that this violates the law? It would appear so. According to VTL §600(2) (a miserably long 159-word run-on sentence):

2. Personal injury  a. Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual’s insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.

See the highlighted words? When someone is injured, the motor vehicle operator  ”shall report said incident as soon as physically able.” But the TA doesn’t appear to be doing that, instead reporting first to a dispatcher, and sending a supervisor to the scene. And that supervisor may, or may not, call the police. And that would appear to be a big fat no-no.

Naturally, this is not the face the Transit Authority wants the public to see. They insist on their web site that customer safety is their top concern. They write:

MTA New York City Transit is interested in your safety. In fact, it’s our foremost concern.

So there you have it. The Transit Authority has put in place a policy that stops or delays the police from investigating its accidents by routing everything through dispatch and supervisors,who don’t call police unless a criminal act has occurred.  Witnesses then leave, and the TA can then just shrug its shoulders if sued and say the witnesses disappeared before their names could be taken. Sorry, they can say, we don’t have any witnesses except our driver. The others didn’t stick around. Such a shame.

And that policy, in turn, appears not only to violate the law and affect the way Transit Authority cases are litigated in civil matters, but also puts passengers at grave risk when people are injured after an accident. Delay is no friend to the injured, but it is to the Transit Authority.

New York now has mandatory e-filing for some commercial cases in New York County. (That’s the Borough of New York Manhattan, not the City or State of New York, for you out-of-towners.)

E-filing is easy, right? That’s one of the reasons we do it, right? Easy-peasy. Less paper, no more running down to the courthouse.

Ahh, I pity the poor fool that thought that.

Want to know if your commercial case is subject to mandatory e-filing? This is the definition you are looking for:

202.5-bb. Electronic Filing in Supreme Court; Mandatory Program.

….

(2) For purposes of this section:

(i) “commercial actions” shall mean actions in which at least one claim of the types described in subparagraph (1) of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, as amended by chapter 416 of the laws of 2009 and chapter 528 of the laws of 2010, is asserted.

Nice, huh? I can just see the law clerks that drafted that humdinger sitting around a desk laughing their asses off.

Let’s file this puppy under Legal Writing, for lack of a better place, and put it right next to these decisions with 300+ word sentences.

These were my 14  favorites from the past year, with the ledes. Favorite does not mean happy, it just means that they were meaningful to me as I wrote them. This is based on purely on personal preference, not page views, and I think fairly represents a cross section of this blog, focusing on policy, legal decisions and my own brand of whimsy:

The New Congress and the Constitution (Will they really defend it?) (1/6/11):

Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no…

Bloomberg: City’s Tort Victims Should Bear Own Costs (1/27/11):

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor MikeBloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”….

The Million Dollar “Loss of Consortium Claim” (2/3/11):

A blockbuster decision, of sorts, emerged quietly from the Appellate Division (Second Department) last week. In it, the appellate court evaluated a jury verdict designed to compensate for 11 months of injuries between the time of malpractice and death. And part of that decision was $1,000,000 for loss of consortium to the husband…

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature) (3/1/11):

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds…

Does Tort “Reform” Kill Patients? (3/15/11):

Two questions today as New York ponders putting a $250K cap on medical malpractice awards among its “reform” measures:

Question 1: Has medical malpractice tort “reform” ever saved a life?

Answer: No. OK, that one was easy. So-called reforms merely strip rights from the injured, they do zippo to improve medical care.

Question 2: Does medical malpractice tort “reform” kill patients?

Answer: Yes…

April Fool’s Day Deconstruction (A 23-Blog Conspiracy) (4/2/11):

It shouldn’t be legal. To have so much fun.

OK, so today is April 2nd and that means a deconstruction of the April Fool’s Day hoax on this blog, and as it happens, the blogs of 22 others…

Joseph Rakofsky — I Have An Answer For You (5/18/11):

I’ve been sued. I’m 51 years old and this is a first for me, both personally and professionally.

And it flows from a post I wrote last month about the depths to which some attorneys will sink in their marketing, that also happened to mention that Joseph Rakofsky was incompetent as a lawyer. Also, that he had an ethical issue regarding an email he sent to an investigator asking him to “trick” a witness. He sued me for defamation…

40 Years Ago Today (Apollo 15, Road Trips, and Instant Everything) (7/26/11):

I’m going to start off topic today to reflect on my youth and the time we drove from New York  to Florida when I was 11. As one of my older brothers likes to remind me, we drove  when I-95 wasn’t complete, using US-1 as we drove down the Eastern seaboard for a family vacation. My father snapped a photo of a sign that said “Future Home of Disney World.” (Eventually I’ll find a legal point for this post, don’t worry.)

It was on that trip,  40 years ago today, that we saw Apollo 15 blast off toward the Moon.

September 11. The NYC Marathon. And Vaginas. (Yes, they are related) (9/11/11):

I know what you’re  thinking. How can September 11th, the NYC Marathon and vaginas be related? Trust me. They are. And it won’t take long to explain…

Reach the Beach Relay (And Assumption of Risk) (9/18/11):

Did you ever want to go racing along rural roads in New Hampshire at 2 a.m., guided only by a headlamp, some signs, and the blinking butt-light of others?  And several miles later you get to climb into a van full of other sweaty, smelly runners wanting to do the same thing? I thought so…

The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas) (10/14/11):

Public Citizen released a report this week on the abject failure of a $250,000 medical malpractice cap put in place by  Texas in 2003. Why is this is important? Because as I discussed  two days ago, so-called conservatives are trying to expand federal power to implement a similar scheme on the federal level.

So it’s important to note that such a scheme fails not only on the constitutional level as viewed from exercising federal power over state claims, but that it fails on a state-wide level as well in that it does not lower healthcare costs as it was intended to do. It may lower the number of malpractice suits by its grant  of protections and immunities to those that negligently injure others, but it doesn’t improve healthcare costs…

Five Years of Blogging (And Happy Thanksgiving) 11/22/11:

My five-year blogging anniversary slipped by last week without me noticing. Having now noticed, I’d like to interrupt this blog to make an important announcement…

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”) (11/22/11)

Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders…

Indiana State Fair Stage Collapse (And the Brutality of Damage Caps) (12/21/11):

Back in August a stage collapsed at the Indiana State Fair as the band Sugarland was about to take the stage. Seven were killed and dozens more injured. And now the State of Indiana is waltzing away from that tragedy having paid a mere $5M in total to 63 of the 65 victims and their families. For the families of those killed, a paltry $300K. If one of those killed or badly injured was a parent, that money will vanish quickly.

Why $5M? Because Indiana decided to limit its responsibility when it handed itself this brand of immunity and protection. A State distancing itself from its own responsibilities as people are killed on its property under its watchful eye? Sounds an awful lot like the old Soviet Union…

And the most popular post, based on page views? That goes to this quickie I did about Dominic Barbara being suspended. It garnered over 27,000 page views. Because it was brilliantly written? No. Because he was a regular on the Howard Stern show and Stern’s website linked to it. One month after it was written. Go figure.

A guest blog today, from David Waterbury, a local personal injury attorney I’ve had the pleasure of knowing for about 25 years or so, from the days I worked at my first job after law school. And Waterbury has decided to take on the latest “list” of dubious lawsuits. But are they frivlous?  Dave checks out a few of them…

===========

It’s that time of year again. The calendar says everybody and his third cousin has to make a list of the Top 10, Top 100, Top 5 or Top However-Many of the Best, Worst, Funniest, Stupidest things that they think anybody else might be interested.

So naturally, we here at the NY Personal Injury Law Blog found our interest piqued when we saw this, from The Week, on the 8 craziest lawsuits of 2011. Now this is hardly the first time that somebody has compiled a list of what they perceive to be “wacky” lawsuits.  In fact, one such list famously manages to make the viral e-mail rounds nearly every year.

The problem is, ALL of the lawsuits in that famous e-mail list are fake. Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans. The difference in The Week’s list of The 8 Craziest Lawsuits of 2011, and what makes it worth blawging about, is that at least some, and quite possibly all, of the lawsuits on the list are real.

So, after we have chuckled, chortled, whined, groused or ranted about crazy/stupid/frivolous claimants and there claims, is there anything to actually learn from this?  I think so.  One thing we can learn is to never judge the merits of something as serious as a lawsuit from a cute and clever couple of sentences in an on-line magazine.

At least a few of the eight suits listed by The Week appear to have some merit or value.  Take, for instance, suit number 7 from the list: “The Walmart customer who sued over two cents.”  The “real” truth behind this case seems to be that Walmart was being accused of systematically overcharging its customers by rounding up to the nearest dollar.  As one of my colleagues, New York plaintiff’s lawyer, Mark R. Bower, said,

[this] is, in effect, a class action claim writ small. If the claimed ’rounding error’ is true, Walmart is ripping off consumers collectively for major amounts, 2 cents at a time. The fact that the plaintiff was awarded $180 damages by an impartial judge demonstrates the validity of the claim, while at the same time, gives a modest award that is a reasonable remedy. If enough people were awarded $180 for this offense, Walmart would stop this conduct. “

Indeed they should, and perhaps, now, they will.  If not, it may be time for a ”real” class-action suit.

Another case on the list that is worth looking into a little more closely is this: “5. The employee who got fired for working overtime.” Now I don’t profess to have inside information on this claim, but I do know that wrongful termination lawsuits are on the rise, particularly in the last few years and at least one of the reasons is that many employers are looking for reasons to let people go, due, in part, to the economic down-turn.

According to The Consumerist, the manager said he was forced to work more than 40 hours a week without receiving overtime pay. He was often off-duty on break, having punched out,  but had to help someone and then tried to turn the clock back on. But he couldn’t  turn if off again for 1/2 hour. The firing was retaliation for the complaints he had made about being denied uninterrupted breaks.

If, in fact, working through his scheduled lunch break, helping out customers or co-workers, was one of the reasons used to justify this employee’s firing, well then Target deserves to get sued over it, and the manager deserves to win his job back along with back pay and damages. It’s likely that the actual facts and allegations were somewhat different than the way they were couched in The Week‘s article, whether the editorial skewing for entertainment purposes was at the expense of the store or the employee, we don’t know.

Another suit worth taking a little deeper look at is “8. The kids who sued mom for failing to spoil them.”  In coming up with a headline that would grab the reader’s attention (and prime them for hating this case before knowing anything about it) The Week’s editors really crossed the line.

The appellate judge who authored the opinion affirming the dismissal of the suit, First District Appellate Court of Illinois Justice Joseph Gordon, nonetheless termed the mother’s actions towards her as “erratic,” “spiteful,” “less than generous” and not “sensitive to the material and emotional needs of her children.” The case was dismissed, according to this HuffPo article, becasue, “The case’s dismissal was attributed in part to the legal ramifications of establishing a precedent allowing retributive actions for parenting style that doesn’t constitute abuse.”

While I think justice was certainly done here, there is something to be said for, in the appropriate circumstances, using the civil courts to test where the boundaries of bad behavior lie. Certainly the mother was not vindicated here.  In my book, as both a lawyer and a father, being erratic, spiteful, ungenerous and emotionally insensitive to one’s children and their needs is borderline child abuse. It is way at the other end of the spectrum from “failing to spoil them.” Shame on you The Week!

“4. The woman who sued after being ‘forced’ to listen to Limbaugh.” My personal feelings that being forced to listen to Rush constitutes cruel and unusual punishment in violation of the Eight Amendment to the U.S. Constitution, aside, this appears to be, at its core, a false arrest/false imprisonment case.  The part about being “forced to listen to Rush” part seems to be an expository item on the issue of her damages for being falsely arrested.  In addition, it seems likely that her complaint regarding Rush was the allegedly racist content of show during the time she was a captive audience, rather than it’s purveyor.

While at first blush, “6. The groom who demanded a restaging of his wedding” seems to be a poster-child for a crazy litigant pursuing a frivolous claim.  But wait! There’s more!  It seems that this was actually just a small claim about bad wedding pictures.  Everybody knows somebody whose wedding photographs lousy.  Not just the occasional bad proof, but every-photo-has-somebody-with-their-eyes-closed-picking-their-noselousy.  The type of lousy that we pay professional photographers $4,100 to prevent on our wedding day.

According to Above the Law and the New York Times, the part about re-staging the wedding was not a claim in the Complaint, but popped out of the plaintiff’s mouth at a deposition. Oops!  Unhappy lawyer for sure. Oh, Goodwin Proctor, the plaintiff was the son of one of the partners.  They understandably were handling the small commercial matter for him, at least until the plaintiff had his brain-fart.

And finally, there is “1. The couple who sued over a mid-air cockroach sighting.” By way of background, it is important to note that insect and other vermin infestations often provide the underpinnings to valid legal claims.  Restaurants, for instance, can be fined, and even closed down, if they fail to keep their establishments relatively free of pests, including roaches.  Roaches are dirty.  They harbor and carry diseases and other germs.  They are attracted to food consumed by humans. They are averse to light and can seemingly fit through impossibly small openings.  If one happens to get into or onto your airline food, you could become sick.  If one manages to get into your carry-on or other luggage, you will be bringing home a portable infestation.

On a more serious note, many people are pathologically frightened of insects and bugs.  My own girlfriend, for instance, would likely have a full-on anxiety or panic attack if she were confined on an airplane for several hours with cockroaches crawling out of the ventilation system.  I’m talking serious: Nausea, vomiting, uncontrollable shaking, crying, headaches, followed by at least several weeks of persistent nightmares.  In fact, according to the Huffington Post (which appears to be where The Week’s author seems to have exhausted his or her research skills) reports here:

Other passengers, they allege, became aware of the issue and some were even physically sick.

A news report has pictures of the roaches coming out of an overhead vent. While this might not be the most valuable lawsuit to come down the pike lately, it is far from “frivolous.”  I am betting the airline pays them something to settle this because it has merit.

So what can we learn from this:

1) Don’t believe everything you read (even here!) Check out the real facts before forming an opinion.

2) Almost any lawsuit can be made to sound “crazy” by careful editing. Magazines, particularly those on the internet, survive by grabbing your attention.  Too often, the real facts and issues of a lawsuit don’t have sufficient attention-grabbing interest, so the editors have to create it by playing fast and loose.

3) Just because a suit has minimal dollar value to the litigant, doesn’t make it frivolous.  In fact, much social good can be done by folks willing to take a financial hit in order to do the right thing, like keeping a multi-billion dollar chain from stealing millions of dollars from working folk, 2 cents at a time.  Most of us don’t or won’t do it, but those who do deserve to be honored, not ridiculed.

4) The justice system generally works in this country.  Sure, everybody has their own favorite story or two of when it didn’t, whether criminal or civil, but for the overwhelming majority of cases, it works just fine.  Click here to view a famous foreign observer’s homage to the American jury system

5) There is an economically and politically powerful lobby in this country, consisting largely of big business and the insurance industry, and coordinated by the U.S. Chamber of Congress and the NAM, who have a vested economic interest in closing the courthouse doors to average Americans.  Articles like that in The Week serve their interest, usually not by chance or coincidence.