A federal Magistrate Judge sitting in New York has ruled that potential jurors cannot be excluded from a jury based on nationality. The rule against discrimination stems from Batson v. Kentucky, where race had been used by attorneys for peremptory challenges. The Batson rule also been extended to other minorities and to gender based discrimination, and extends also into civil cases.

From today's New York Times (sub. req.):

The judge, in a ruling last week, opened a door to lawyers defending a West Indian man who argued that he had been denied justice because all five potential jurors who were West Indian were improperly excluded by the prosecution. The Bronx jury that convicted the man, Mark Watson, of rape, sodomy and burglary included blacks, but all of them were American born.

...

The judge, James C. Francis IV, ordered a hearing to determine "whether the state can offer a nondiscriminatory explanation for its peremptory challenges and whether Mr. Watson can carry his burden of establishing discriminatory intent." If a separate hearing determines that jury selection was discriminatory, Mr. Watson, who was born in Jamaica and is serving 37 1/2 to 75 years in prison, could receive a new trial.
...

"Mr. Watson established that the prosecutor had struck every one of the five West Indian prospective jurors, a showing that was plainly sufficient to support an inference of intentional discrimination," Judge Francis wrote.

"If striking five out of five West Indian jurors is insufficient to raise an inference of discrimination, it is difficult to imagine what sort of pattern of strikes might do so," he said.

Personally, when I pick juries I always have a reason when exercising a challenge, and I think trial lawyers make a mistake when they bounce potential jurors based solely on discriminatory factors. While on the one hand a lawyer wants the jury to look like his own client, on the other hand, those from the same racial/ethnic/national/gender group may also be the harshest critic of their own. Picking a jury takes a lot more subtlety than simply looking at the superficial features of your fellow man.

Labels: Inside The Jury Room, Interesting Cases in the News, Trial Practice

Give the New York Post the credit for that headline, as the fourth Brooklyn trial starts regarding Democratic boss Clarence Norman. Multiple judges are expected to testify in the scandal, as I indicated recently in "New York Judiciary Set For More Bad News" a short while back. Here is the Post lede:

When Civil Court Judge Karen Yellen sat down, hat in hand, with Brooklyn Democratic boss Clarence Norman, Jr., to ask for his support in the 2002 primary, it wasn't her record he was interested in.

Nor the awards the judge, who was seeking re-election, had received. Nor even the high-profile endorsements she promised.

It was a $12,000 check to a Norman crony for an all-but-useless mailing and a $9,000 payment directly into the pocket of a shady political consultant, prosecutors alleged yesterday, as they opened their fourth case against the former assemblyman.

The defense?

Norman's lawyer, Anthony Ricco, meanwhile, compared Norman to Martin Luther King Jr., likening him to a politician fighting for the rights of his constituents...."These individuals were not extorted by Clarence Norman," said Ricco. "He tried to inspire them beyond their own ignorance. Ignorance of themselves and ignorance of . . . the Brooklyn community."

The larceny and coercion charges at stake are part of DA Charles Hynes long-time efforts to root out corruption in the purchase of judicial robes.

Given the possibility of additional indictments from ongoing investigations, and a new scandal that came to light last week from the ex-wife of former Supreme Court Justice Reynold Mason (who alleges payments were made for Democratic party backing), the problems (and press) will continue to be bad for one of my favorite venues...

Stay tuned...

Labels: Judiciary

This isn't about New York personal injury law, but it is about trial practice, and is simply too good to pass up...a trial observer (then-Time magazine correspondent John Dickerson) that suddenly finds the testimony is about him...it comes from Slate at this link...this is the lede and the end, but the middle is well worth reading...

Dispatches From the Scooter Libby Trial

I wanted to raise my hand and ask, "Your Honor, may I approach the bench?"

I was at the Scooter Libby trial to cover it, and all of a sudden, I found myself in the middle of the case. In his testimony today, former White House press secretary Ari Fleischer told the courtroom -- which included me -- that when I was a White House correspondent for Time magazine, he had told me that Joe Wilson's wife worked at the CIA.

He did?

Everyone had heard about Robert Novak, Matt Cooper, and Judith Miller, the reporters who had received the Valerie Plame leak. But now Ari was saying I was in that club, too.
...

Only moments before Ari's surprise disclosure, I had been trying to figure out what my lede would be for today. I enjoyed seeing Ari have to answer questions under oath, which he never had to do in the White House briefing room. As a reporter, I'd always tried to put him in the witness box, and he always climbed out. Now he may have put me in there.

There's nothing quite like the heart-pumping drama and surprise of a good trial.

Labels: Inside The Well, Interesting Cases in the News, Trial Practice

You can't swing a dead cat these days without hitting a Supreme Court Justice in the media spotlight:

A-List legal blogs are red hot on a new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,. In addition, interviews have come from Chief Justice John Roberts and Justice John Paul Stevens (ABC News) Justice Antonin "Get Over It" Scalia (Iona College), Justices Ginsburg (CBS 60 Minutes), Justice Alito, (Palm Beach Bar Association) and Justice Breyer (Fox News Sunday). Whew.

There is also a PBS special coming up next week.

According to Orin Kerr at The Volokh Conspiracy, "These days it feels like news when Supreme Court Justices aren't giving on-the-record interviews to reporters."

All of which leads to constitutional debate since many judges prefer to talk of judicial philosophy instead of individual cases: Some feel the constitution should be interpreted based on the current times and circumstances while others assert that it must be strictly interpreted as written.

This debate being played out now in various media brings up an ancient quote:

Rigorous law is often rigorous injustice.

--Terence (185 B.C - 159 B.C.)
Roman playwright and poet

Labels: Quotes: Law and Lawyers, U.S. Supreme Court

Is changing a lightbulb a repair or maintenance under New York's Labor Law? Well, if you are doing work on the wiring it is clearly a "repair" and thus comes under the tough Labor Law rules that protect workers when the safety apparatus fails as they work at an elevation:

From New York's Appellate Division, First Department (Rios v. WF-Paramount)

Plaintiff building engineer was in the process of repairing and replacing electrical wiring in the ceiling of the 12th floor, in order to restore lighting to the entire floor, at the time the ladder he was standing on collapsed. The work he was engaged in was more than simply changing a lightbulb, and constituted "repair[s]" within the meaning of Labor Law 240(1) ...

Labels: Labor Law, Personal Injury

New York's Chief Judge Judith Kaye is again speaking out on the appalling situation where our judges must go "hat in hand" to the legislature to get paid a decent wage. This comes fresh on the heels of Simpson Thacher's decision to give rookie associates $160,000 plus a $30,000 bonus, a decision followed by other firms.

In a front page article in the New York Law Journal, Judge Kaye calls for,

"an end to the inequity and injustice of our so-called system of compensation that requires New York state judges every five, or six or seven or eight or, now, nine years to come, hat in hand, on bended knee to beg and plead with our partners in government even for a cost of living increase."

New York's Supreme Court judges (our trial court) now start at $136,700. I don't know how we can possibly recruit the best and the brightest based on that. Hopefully, the combination of Eliot Spitzer's push for reform with the constant efforts of Chief Judge Kaye will help to get things done.

When I go to Albany to lobby in a few months with the New York State Trial Lawyers Association, as I do each year on issues related to personal injury law, this will once again be on the agenda. As it is every year. It is in every one's best interest.

Labels: Judiciary

Howard Bashman (How Appealing) comments today in a nice article at Law.com (Decorum on Appeal: When Judges Are Under Attack) on the recent Utah Supreme Court decision to sanction a law professor $17,000 for the disrespect he showed to the appellate court below. I wrote about this on Friday, with a link back to the ABA article on the subject.

Bashman's treatment of the subject is good reading for anyone that intends to litigate anything.

What was also interesting about the decision is that the court didn't decide the merits of the appeal. I suppose, theoretically, there is a legal malpractice case there as a result of the client losing his case like that. But in order to prevail, the plaintiff must ultimately end out back in the Utah Supreme Court and get a reversal of the lower appellate court ruling.

That sounds like a long, miserable experience, and judicial economy doesn't seem to be served here without a decision on the merits when it first appeared before the court.

Labels: Attorney Ethics, Interesting Cases in the News, Judiciary

In an article slated for this Monday's edition of the New York Law Journal, Eugene F. Pigott Jr., now a judge of the New York Court of Appeals, discussed how practitioners for the first time had input in formulating the new disciplinary rules regarding advertising and solicitation. Approximately 100 attorneys and virtually all of the major bar groups expressed concerns, which are reflected in the final product.

But while the article provides a nice summary of the judiciary-bar collaboration, I found Judge Pigott's constitutional comments of most interest:

Pigott said he had no constitutional concerns with the original, more restrictive proposal even though it promptly sparked threats of litigation.

"We are a monopoly," Pigott said. "We have a right to practice law, and no one else can. In return for that monopoly, we give up certain rights."

While the courts may be able to regulate speech in some regard due to the monopoly, that doesn't cure the problem of rules that are vague or over broad. I discussed this several days ago with respecting the fact that any prominently displayed photograph of an attorney may be violative of the rules, because it is "exhibiting characteristics clearly unrelated to legal competence." It is certainly not the only place where ambiguity lies, as others have discussed (see links at that prior post).

Defining speech isn't easy when the First Amendment comes in to play. Perhaps the courts will try to rely on Justice Potter Stewart's famous 1964 definition of pornography:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Jacobellis v. Ohio (concurring opinion)

We are unlikely to have heard the last on the subject:

Pigott made clear that he would have imposed stronger restrictions on attorney advertising and cautioned that the latest changes do not necessarily represent the last word. He urged attorneys to keep in contact with their presiding justice and to build on the cooperation that developed during the evolution of the advertising rules.

Labels: Attorney Ethics, First Amendment, Judiciary

Sometimes emotions get in the way of legal argument. Which apparently happened here. From the ABA Journal comes this cautionary tale of a law professor that became "terribly angry" when he lost in the Court of Appeals because of factual errors and appealed to the Utah Supreme Court.

Anger may cost a Utah law professor some $17,000 in attorney fees, and he believes the punishment is just.

Yet Boyd Kimball Dyer of Salt Lake City also thinks the Utah Court of Appeals was wrong and his case should be reheard.

A unanimous Utah Supreme Court says it won’t consider Dyer's arguments because his briefs included "a substantial amount of material that is offensive, inappropriate and disrespectful" of the appeals court. In a Jan. 12 decision, the supreme court struck Dyer's briefs, affirmed the appellate ruling against his client and assessed attorney fees. Peters v. Pine Meadow Ranch Home Association, No. 20050806.

...

In briefs filed with the Utah Supreme Court, the University of Utah S.J. Quinney College of Law professor wrote that "good judges never fabricate evidence," and that the appellate court opinion was "no innocent mistake."

"So, if a court fabricates evidence, whether intentionally, negligently or through innocent mistake, it destroys the moral premise of the legal system," Dyer wrote. "A judge who fabricates evidence, even from a sincere motive to do justice in a particular case, has no moral standing whatsoever."

The Utah Supreme Court cited those statements when it denied Dyer's petition in the consolidated appeal -- on the basis of his behavior rather than on the merits.

There's more at the link, including the Utah Supreme Court's comments.

Labels: Attorney Ethics, Interesting Cases in the News, Judiciary

In handling a Bush v. Gore question from the audience at Iona College the other day, Justice Scalia said:

"It's water over the deck -- get over it"

But the suspension of democracy in Florida in 2000 is not something to "get over" any more than other poorly decided Supreme Court decisions such as:

• Plessy v. Ferguson's holding that "separate but equal" race discrimination was OK, or the
  
• Dred Scot decision holding that slaves could not sue in federal court since no slave or descendant of a slave could be a U.S. citizen, or
• Korematsu v. United States, holding that U.S. citizens of Japanese ancestry citizens could be summarily relocated to detention camps during WW II based solely on their race.

In fact, Bush v. Gore was worse than all three. For each decision above could be overturned by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have been counted.

Bad judicial decisions are not something to "get over," but are mistakes to be learned from.

Labels: Judiciary, Odds and Ends, U.S. Supreme Court

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice "crisis" I wasn't going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

And to protect good doctors from junk lawsuits, by passing medical liability reform.

Good doctors, however, don't seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

• The number of malpractice payments declined 15.4 percent between 1991 and 2005.
• Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
• Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
• Over 64 percent of payments in 2005 involved death, or major or significant injuries.
• Payments for "insignificant injury" were less than one-third of 1 percent of payments in 2005.
  

The Public Citizen study follows a report last year in the New England Journal of Medicine entitled "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation." This was based on a study by the Harvard School of Public Health and the Harvard Risk Management Foundation.

Is our society litigation crazy? Apparently not. It appears from the Public Citizen report that only 5-10% of those killed by medical errors had any recovery from a malpractice suit. From the report:

"One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient. Yet, as a 1999 landmark study by the Institute of Medicine showed, an estimated 44,000 to 98,000 patient deaths occur each year as a result of preventable medical errors in hospitals."

Public Citizen took their data from the National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as information about disciplinary actions against them by state medical boards or hospitals.

Just reading the table of contents of this report is enough to make anyone think twice about the propaganda spewed by advocates of tort "reform."

Key Findings
Part I: The Medical Liability System Produces Rational Outcomes

a. Annual Number of Malpractice Payments Is Down
b. Medical Malpractice Payments per Population Continue to Decline
c. Total Value of Malpractice Payments Flat Since 1991
d. Judgments Are Not Irrational
e. Million-Dollar Judgments Are Less Than 1 Percent of the Total Number of
Payments
f. Million-Dollar Judgments Were Less Than 3 Percent of Total Value of Payments
in 2005
g. Severe Injuries Account for a Majority of Payments
h. Medical Liability System Is Rational In Outcomes
i. 82 Percent of Total Value of Payments Compensate Most Severe Injuries
j. The Proportion of Surgical and Obstetrics Payments Flat Since 1991

Part II: Patient Safety and Doctor Discipline
k. Some Common, Preventable Errors Are Increasing
l. Easily Preventable Errors Show a Marked Increase Since 2003
m. Since the Beginning of the NPDB, 5.9 Percent of U.S. Doctors Were Responsible
for 57.8 Percent of the Number of Medical Malpractice Payments
n. Doctors with Repeated Malpractice Payments Experience Few Consequences
o. Many Serious Repeat Offender Doctors Are Not Disciplined

Labels: FAQ-Medical Malpractice, Medical Malpractice, tort reform

Does my family picture show "characteristics clearly unrelated to legal competence?"

Is it possible that this backyard snapshot, which appears on the bio page of my law firm's web site, subjects me to New York's new disciplinary rules?

The new rules on attorney advertising have an interesting quirk, the ramifications of which I have not yet seen discussed:

DR 2-101(22 NYCRR 1200.6) provides in part, that "An advertisement shall not:
...

(c)[5] rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of the most appropriate counsel including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence;

According to a New York Law Journal article from January 8th:

That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.

Having now stepped on to the slippery slope of restricting attorney speech on how we portray ourselves, we must ask a couple questions:

Must photographs be the boring suit-and-tie shot you see on my firm's home page? What does any picture have to do with "legal competence?" After all, a picture only identifies your race, sex, age and attractiveness. What does that have to do with competence?

At the risk of possible official reprimand, I'm keeping my family picture where it is. I'm basing it on the fact that, among other things, it does not reside on my home page but on a biography page, and is at the bottom of the page to boot. So I think, therefore, that it is not what they mean by "techniques to obtain attention." You have to search a bit to find it.

But what if the appellate judges that made these rules meant otherwise? How, exactly, are we to know which informal pictures are OK and which not? Or if any picture at all is permitted?

Other links for the New York attorney advertising issues:

• New York Lawyer Advertising Rules Roundup (Sui Generis);
  
• 2007 Changes to the New York Ethical Rules Re: Lawyer Advertising (Legal Ease);
• Lawyer Advertising Rules in NY State: Make Lots of `Close' Friends (Riverside Views).
  
  

Labels: Attorney Ethics, First Amendment, Judiciary

New York's legal marketplace is hitting a new milestone: Paying fresh-faced, 20-something, first year associates more than federal judges.

Rookie lawyers at Simpson Thacher & Bartlett will be paid a base salary of $160,000 before bonus, according to a New York Law Journal article today. Bonuses for first years start at $30,000/year:

The New York firm's move, announced internally Monday, comes less than a year after an earlier round of salary increases boosted first-year salaries in the city to $145,000 from the $125,000 that had been standard for several years prior.

By contrast, federal judges start at $162,500 (no bonus, sorry), the same as members of Congress.

New York's Supreme Court justices (our trial courts, not the top court) start at $136,700.

If judges can do so well in the private sector, then we need to increase the incentives to keep good ones from leaving the bench. It is time we brought judicial salaries more into line with the marketplace.

Labels: Judiciary, Odds and Ends

A favorite topic of tort "reformers" is to place arbitrary caps on personal injury damage awards for pain and suffering. In doing so, they simply ignore the fact that caps already exist, but without the low ball one-size-fits-all numbers they argue for. In fact, we've been capping damages now in New York for almost 200 years without using an arbitrary number.

Here's how it works: On occasion a jury will give an outrageous number...sometimes way too high, and sometimes way too low. (Newspapers only cover the high ones.) While jury awards are given great deference by the courts, that deference is not absolute, and the judge has the power to modify the award. Not directly, since the court won't simply substitute its own judgment for the jury, but by tossing out the award and ordering a new trial unless the aggrieved party stipulates to the new amount chosen by the court. This happens at both the trial court level and the appellate level.

The earliest opinion I've seen where the court says it will not accept any award from a jury in New York is from 1812:

"It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries....The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess." - Chief Judge James Kent, Coleman v. Southwick, 9 Johns. 45, 1812)

Chief Judge Kent's standard of being "flagrantly outrageous and extravagant" to toss out a civil award is now read in two similar ways: The appellate court language is that the damages "deviate materially from what would be reasonable compensation"; and the trial courts say they will order a new trial when the verdict "shocks the conscience of this court."

This methodology of ordering a new trial if the party did not stipulate to reduced damages came up in a famous 1913 case, involving future Supreme Court Justice Benjamin N. Cardozo and Bat Masterson, a legendary figure of the Old West, when a jury returned a defamation verdict in favor of Masterson for $3,500. The reason? Cardozo's client had said that that Masterson had "made his reputation by shooting drunken Mexicans and Indians in the back." (Hat tip to Randy Barnett at The Volokh Conspiracy.) New York's appellate court tossed the verdict and awarded a new trial unless Masterson stipulated to a reduction of the verdict to $1,000.

And in one of my own trials, I took a $610K verdict in a Brooklyn medical malpractice case resulting from a misplaced injection that injured the sciatic nerve. The court reduced my client to $450K using the same stipulation mechanism. To see how often the New York courts continue to do that, just pop the phrase "deviate materially from what would be reasonable compensation" into the search box at the court's appellate website here.

In other words, to persevere in an action for pain and suffering, one must first win with a jury's review, then have that verdict pass muster before the judge that heard the case, and then have the verdict reviewed a third time in front of an appellate panel.

So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one's actions.

The big verdicts make big headlines. The subsequent reductions (or additions when a plaintiff is badly shortchanged) rarely appear. But simply because you don't see it in the papers doesn't mean it doesn't exist.

Addendum, 3/12/07 -- For more on the disparity of coverage between verdicts and subsequent reductions, see Media Bias at TortDeform.

Labels: FAQ-Personal Injury, Personal Injury, tort reform

From today's New York Times (reg. req.):

STAMFORD, Conn., Jan. 21 -- During the past two years, when Brian T. Valery was representing a Stamford drug company in connection with product liability lawsuits involving the painkiller OxyContin, William E. McGrath Jr., a lawyer for one of the plaintiffs, found Mr. Valery "unduly aggressive" but never questioned his abilities.

In another case, Steven Maass, who hired Mr. Valery's former law firm, Anderson Kill & Olick, after Mr. Maass's electronic trading business was destroyed in the Sept. 11 terrorist attack, thought Mr. Valery unimpressive but chalked it up to inexperience.
...
But it turned out that Mr. Valery, who billed roughly $300 an hour as he deposed insurance executives and coordinated the testimony of two expert witnesses from Harvard Law School, had never actually been admitted to the bar. Or, for that matter, attended law school, something that eluded his colleagues at Anderson Kill, one of Manhattan's white-shoe law firms, not to mention the editors of journals for which he co-wrote articles on environmental law and property insurance.

...
Mr. Valery has not explained himself publicly and has been referring questions to a criminal lawyer, Joseph R. Conway, who declined to comment about the case but was quick to reassure a reporter about his own credentials. "You can check me," he said. "I'm a real lawyer."

The first interesting thing to note is that legal credentials in New York can be checked on the web in a matter of seconds at this link to the Office of Court Administration.

And the second interesting thing is that, in New York, impersonating an attorney is only a misdemeanor. Now that's a criminal statute that could use some updating.

Labels: Interesting Cases in the News

So goes the contest over at the non-legal blog at Middle Zone Musings, which ends tomorrow. You can read many of the 6-word stories over there.

The "contest" caught my interest because lawyers often take forever to get to the point in a "brief," beat their point to death, or can't figure out what their point is. So forcing brevity makes one think.

The best writing tips I ever heard came from Bryan Garner:

• Frame your issue in 75 words or less.
• Win your point on the first page.

My own entry in the contest, with one word to spare:

What's your name?
Objection. Hearsay.

Labels: Odds and Ends

As former Brooklyn Democratic leader and Assemblyman Clarence Norman, Jr. goes on trial next week for the fourth time, New York's judiciary steels itself for a spate of bad press. Why is he going on trial? From today's New York Sun:

The trial will focus on Norman's alleged demand that two judicial candidates spend their campaign funds at consulting and printing businesses that he approved. These demands were allegedly made over a table at the Park Plaza Restaurant, a well-known diner near the courthouses in Brooklyn.

The issues this trial presents are likely to appeal to an audience wider than the usual courthouse crowd. The trial is of particular interest this year, as lawmakers in Albany are set to choose a system for selecting state trial judges.

With the state Senate expected to throw its support behind a bill requiring all state judges to go through an open primary, the upcoming trial could be used as an argument for proponents of an appointment system. It is expected to demonstrate how judicial candidates, like all political candidates, often come to depend a great deal on party organizations and donors when campaigning to win a primary.
...

The investigation by Brooklyn's district attorney, Charles Hynes, dates back to at least 2002 and began following the arrest of judge on bribery charges. While Mr. Hynes has charged several other judges with crimes, he has yet to prove that judgeships are bought and sold in Brooklyn -- the original goal he set for himself. Norman, who had the reputation as a kingmaker of Brooklyn judges, has been at the center of his inquiry.

I discussed the possibility of indictments yesterday for the sale of Brooklyn judgeships.

These problems in Brooklyn, of course, are part of the reason that Gov. Eliot Spitzer has sought judicial reform, as I have noted a few times since his inauguration.

Stay tuned for the tabloid headlines...

Labels: Judiciary

A damning article in the Village Voice, The Sales of Justice, reports that District Attorney Charles Hynes will soon indict people regarding the sale of a judgeship in New York's King County (Brooklyn).

The price? $50,000 - $70,000 for a seat with the robes.

Brooklyn has been the site of prior judicial scandals. If these allegations are meritorious, it will be the fourth Brooklyn judge that D.A. Hynes has prosecuted. As someone who tries cases in that courthouse, I can only hope this story turns up empty, but I don't think that is what will happen.

It also reminds me that just a few short weeks ago new Gov. Eliot Spitzer said this at his inaugeral about politics and judges:

I will also submit a second constitutional amendment that will take
the politics out of the selection of judges and implement a merit appointment process.

The shame of it all is that the conscientious and ethical judges will be tainted by the bad apples.

Labels: Eliot Spitzer, Judiciary

Last week bipartisan legislation was introduced, ostensibly aimed at drug safety, called the Pharmaceutical Market Access and Drug Safety Act of 2007. Does it really deal with drug safety? Nope. It is almost entirely about the importation of drugs from Canada and other countries.

The bill does nothing to plug the leaky supply chain that we have here that allows drugs to be swapped among the thousands of secondary wholesalers like pork belly futures. Indeed, the requirements of pedigrees for pharmaceuticals (a list of prior owners) has still not been fully implemented despite being authorized by Congress in 1987.

There is nothing in the bill about the most basic of safety issues, such as increased criminal penalties for counterfeiters, mandating pedigrees back to the manufacturer, and funding for the F.D.A. so that they can actually do random testing of drugs in the marketplace, recall them when needed, and do proper investigations.

Before Congress tries to deal with foreign drug supply systems, it should get a grip on our own, and enact Tim Fagan's Law, which came about as a result of domestic counterfeiting.

More on the subject can be found at:

• Jane Jarvan's Health Law Update;
• Adam Fein's Drug Channels; and
• My own Counterfeit Drug Resource Page (for background information on counterfeiting).
  

Labels: counterfeit drugs, Political Action, Tim Fagan's Law

Ripped straight from the New York Times, Editorial Advisor, on Jan. 14, 2007 (sub. req.):

They Say We Have Too Many Lawsuits? Tell It to Jack Cline

By ADAM COHEN
Birmingham, Ala.

Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama's all-Republican, wildly pro-business Supreme Court threw out his case.

In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early. Alabama law requires people exposed to dangerous chemicals to wait until a "manifest" injury develops. But when his leukemia developed years later, it was too late. Alabama's statute of limitations requires that suits be brought within two years of exposure.
.....
Corporate America -- with its large contributions to political and judicial candidates, and its top-dollar lobbyists -- has had remarkable success persuading legislatures and courts to erode the bedrock principle of civil law: when people are injured, they are entitled to sue for damages.

......
Mr. Cline's lawyer, Mr. Palmer, argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries.

Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. He also saw it as a good sign when it scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. The arguments went well. "Questions asked by several justices indicated they were troubled by the legal Catch-22," The Birmingham News reported.

The court ruled this month. It affirmed the dismissal of Mr. Cline's case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature -- a body every bit as pro-business as the Alabama Supreme Court.

Mr. Palmer intends to take the case to the United States Supreme Court. In the meantime, Mr. Cline can take some small comfort in the close vote. Four Alabama justices, at least, would not accept a legal system that told people like him that "no matter when" they "file the action, it is either too soon or too late."

Labels: tort reform

While New York personal injury law is what I want my tiny corner of cyberspace to be about, and not bloggers and the blogosphere, I step back today to reflect on the two months since I started on November 17, 2006.

First, I want to thank those who assisted in private emails and with links placed at their sites, particularly those legal blogs in New York. That certainly helped me get started.

I'm pleased that links were provided not just as part of a long blogroll, but to the content. Nicole Black, the queen of New York legal bloggers residing over at Sui Generis, has now linked to several of my entries, and has provided wonderful reading on all things New York.

Cyrus Dugger over at Tort Deform and Corp Reform has cross-posted my comments on issues of national importance concerning the attack on our civil justice system by large corporate interests that seek various levels of immunity for negligent conduct. This includes my comments on Gov. Eliot Spitzer's attempt to reform New York courts, the ruling that an Oklahoma court "reform" law was unconstitutional, and other matters. Author Stephanie Mencimer over at The Tortellini writes on a similar subject and has also passed a nod or two my way.

The Blawg Review, perhaps the most widely read of all legal blog compilations on the web, has now included me in two issues, the first of which was #89 regarding my note on a federal judge preventing the use of a pseudonym in a sex assault case. In issue #91, two different posts on emotional injuries were noted: The first on the tax exempt status of emotional injury compensation, and the one on zone of danger emotional injuries.

The Health Wonk Review picked up a bit I wrote regarding counterfeit drugs, as did the Health Business Blog by David Williams. I'm particularly grateful for these, as I assume many in health care have more than a bit of skepticism about personal injury attorneys. Also in the health field, Juvan's Health Law Update has been a great source of information to me on the continuing issue of the Prescription Drug Marketing Act and recent legal maneuvers that have stalled its implementation. (And the recent redesign of the site is simply superb.)

Finally, the Health Business Blog hosted the Cavalcade of Risk blog carnival this week, and noted the post I put up on Geico's idiotic idea to put up "safety" billboards at the George Washington toll booth plaza. Even a caveman would know it isn't safe to distract drivers in such a location with needless billboards.

I'm delighted (and flattered) that different communities of bloggers (New York-centric, tort "reform" and health care policy) have included my comments in their postings.

I'm now getting at least two dozen different feeds from various blogs (including all those in my blogroll), am constantly adding new sites, and am quickly finding it to be an outstanding source of information.

Now if only I had picked a wittier name for my blog...

Labels: Blogging, Odds and Ends

It's odd to see an appeals court vacate its own decision, without anyone having asked, but that is what happened here. It's all about the power of the government to tax personal injury awards.

Congress has the power to tax income, but not recoveries for personal injury. Its power comes from the Sixteenth Amendment, which gives it the "power to lay and collect taxes on incomes, from whatever source derived..."

Since a personal injury award, either by settlement or verdict/judgment, is compensation for that which was lost, it is not income. The injured person is simply made whole.

But what of psychological injury or loss to reputation? It was just a few days ago I posted on emotional injuries for witnessing the death of a sibling while in the "zone of danger." In Murphy v. IRS, a three judge panel of the U.S. Court of Appeals for the District of Columbia held last year that compensation for emotional injuries was not income, and therefore not taxable. Therefore the provision of the Internal Revenue Code that tried to tax the money was held to be unconstitutional as it contravened the Sixteenth Amendment. Much was written on the subject, which I will not repeat, some of which can be found at this link to the TaxProf Blog.

The news? The Court of Appeals reversed itself a few weeks back by tossing out the decision, and asked for new briefs and oral argument. We can thus expect a new decision where the same three judges reverses their prior holding, or perhaps strengthens that prior opinion with the knowledge that, one way or another, this may well be headed for the U.S. Supreme Court. Interestingly, the court's request for a re-hearing was done on its own motion. The losing side, the government, had not asked for that, but rather, an en banc hearing (with all the judges for the circuit court).

Since almost all personal injury cases have an element of psychological damage (the "suffering" in "pain and suffering"), the outcome is more than a little bit important. Will the court try to distinguish the emotional damage one has with a lost limb from that of the suffering in a non-physical injury defamation case? If a person has any physical injury to go with the emotional damage, does that mean all of the emotional damages are tax exempt? Will juries now be asked to separate out the two components?

The government argument is that all compensation from a personal injury suit may be taxed, notwithstanding the Sixteenth Amendment. This next appellate argument is unlikely to be the last...stay tuned...

And a tip of the hat to John D. Darer at StructuredSettlements4Real, where I caught up with that information.

Labels: FAQ-Personal Injury, Personal Injury

I had previously written how Gov. Spitzer was pushing judiciary reforms that included restructuring and consolidating New York's court system, and creating a new screening committee to pick judges that was not partisan based.

Now, according to Capitol Confidential, he may be near a deal on reforming the way our trial court judges are selected. As per Elizabeth Benjamin, this would entail:

a so-called "down-the-middle" proposal that doesn't completely do away with the traditional convention system of selecting state Supreme Court candidates (ruled unconstitutional last January) but modifies it to be more open.

Gov. Eliot Spitzer pushed this issue to the front burner when he declared on the day of his first State of the State speech that he wouldn't support "anything that has a closed conventions structure," insisting "there must be a way to primary onto the ballot."

You can read more on the subject at the Brennan Center for Justice's blog at ReformNY, or by Jason Boog at Judicial Reports.

[Update - 2/12/07 - New York Trial Justices Oppose Role In Chief Judge's New Screening Committees]

Labels: Eliot Spitzer, Judiciary

State Farm has done it again. Some years back they made quite a bit of law in a case called State Farm v. Campbell that went up to the U.S. Supreme Court on the issue of punitive damages that they had to pay for their conduct.

Now they got smacked again by a jury, this time for $2.5M in a case they offered to settle for $20K. This time, it was people victimized once by Katrina, before State Farm got to them for a second go-round:

Jan. 11 (Bloomberg) -- State Farm Mutual Automobile Insurance Co. must pay a Mississippi couple $2.7 million for the loss of their property, a judge and jury ruled in a test case over how much Hurricane Katrina damage is covered by insurance.

The judge, deciding actual damages without the jury, awarded $223,000 for the home and belongings of Norman and Genevieve Broussard of Biloxi, Mississippi. The jury awarded punitive damages of $2.5 million for State Farm's improper conduct in processing the claim...

The Broussards argued their house had been destroyed by wind or a tornado, a type of damage covered by insurance. State Farm, which is owned by policy holders, argued at trial that the loss stemmed from flooding, which the company's policy didn't cover.
...

[U.S. District Judge L.T. ] Senter called the company's handling of the claim ``impermissible,'' saying it offered the couple no choice except to sue over their claim.

``I find the defendant did not have any legal or arguable reason for refusing to pay,'' Senter said today in federal court.
...

Senter ruled today that Bloomington, Illinois-based State Farm, the largest U.S. auto and home insurer, failed to present enough evidence for the jury to be able to find that the policy terms didn't cover the damage.
...

The Broussards' attorney Bill Walker told the jury that his clients had been needlessly wronged by State Farm.

``Did they act like a good neighbor?'' he asked, referring to the company's famous slogan. ``No, they acted like a cheat. They acted like a chiseler.''

Labels: Insurance Industry, Interesting Cases in the News, Odds and Ends, Punitive Damages, Trial Practice

Since drug counterfeiting is such an insidious crime -- with the evidence being destroyed at ingestion or injection and treatment failure usually chalked up to the underlying disease -- I am going to do something I generally don't do. Reprint a press release almost in its entirety. This came out from the National Association of Boards of Pharmacy a few hours ago, and is chock full of unsettling facts and figures. Counterfeit drugs, a subject I discuss often, affects everyone in the country, for if counterfeits slip into the pharmaceutical distribution system (and with a big profit motive, this is inevitable), they can end out in anyone's home:

2006 Unprecedented Year of Increased Fake Drug Production, Introduction
into U.S. Drug Supply

WASHINGTON, Jan. 11 /PRNewswire-USNewswire/ -- Amid increased concern
over the growing epidemic of counterfeit drugs, the National Association of
Boards of Pharma