Yesterday's post dealt with the dueling orthopedists. Today we resume with the defense case:

Saturday, June 21st. I'm making pancakes for my kids, some with the Turkewitz Family Secret Ingredient.* But I'm thinking about the defendants' two experts on Monday. The brain refuses to shut down. My 8 year-old daughter comes up to me to make fart noises on my calf. I try hard not to think of summation comments I'll make regarding yesterday's witness.

Sunday, June 22nd -- In the home office at night, I'm making revisions to my cross examination outlines and doing more research on precluding surprise testimony from a party. But my printer runs out of ink. Crap. OK, Abe Lincoln didn't have a printer at home nor did my dad, nor did any trial attorney that came between them. I'll make do and go longhand.

Monday, June 23rd-- To hell with longhand. Early morning run to Staples for ink cartridge. I'm not my dad, and I'm certainly not Lincoln.

I pull my two trial bags on the wheelie thing up the hill to the courthouse. The trial bags were my father's. He gave them to me when he retired and I use them for good luck. The one pictured here is at least 50 years old, and still has T & T stenciled in gold on it from the time of Turkewitz & Tessel, a firm he started with the kid he sat next to at Brooklyn Law. If trial bags could talk they would rivet you with the stories they held. Dad calls me every night to find out what happened in court. I suggest, for the umpteenth time, that he come out of retirement and make a court appearance for me here and there. I offer to put him on my letterhead -- Turkewitz & Father -- and for the umpteenth time he declines.

Defendants' first witness is another orthopedist, who did a defense medical exam on my client two years ago and says she was only mildly disabled. He claims she was doing well and could go back to work, and his exam is at odds not only with her treating orthopedist, but with subsequent defense medical exams two years later that call her "moderately" and "markedly" disabled. He has never seen the records or x-rays of her treating physician. Either he has deliberately diminished her disabilities for this suit or my client's condition has worsened. That makes this witness a win-win for me.

Defendants' second expert is a rehabilitation expert who testifies that the plaintiff can go back to work doing sedentary work. She can do this, he says, despite the fact that she sleeps poorly due to pain, and thus has problems during the day, that she has pain on sitting, may need a hip replacement in the future, needs to be retrained, moves slowly due to her arthritic hip, and is in her mid-60s. I'm sure there are plenty of companies out there itching to hire such a person, but this expert doesn't name any in his report. The expert does, however, appear in a wheelchair. Which might account for why he was brought in from Pennsylvania for the trial instead of using a local rehabilitation expert. Assuming one could be found.

At the end of the day the defendants ask the court that, if they chose not to produce their neurology expert -- the one that said the client was "markedly disabled" -- that they not get a very damaging missing witness charge. Under that charge, the jury is permitted to draw an inference that the testimony wouldn't be helpful to the side that was supposed to call him. I oppose it for obvious reasons, given that he is under their control, would be expected to produce him, and that his opinion differs from the defense orthopedist. The judge rules in favor of the defense. Nuts.

Next up -- Summation and charge tomorrow. And...?
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* You're reading the footnote to a law blog about a pancake recipe? Please don't let the boss catch you.
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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

Is waterboarding torture, or is it now art?

And why, exactly, are 50 lawyers wanted for this exhibit?

"We felt like lawyers would yield an interesting result as they are most qualified to impartially describe the experience"

According to the press release at the web site linked below, the waterboarding will take place for all of 5 seconds. Somehow, I don't think 5 seconds is what the CIA has in mind when they do it.

The details are here in New York Magazine blog.

Labels: Odds and Ends

With my first four witnesses now off the stand, we turn to the main orthopedic witnesses:

Thursday, June 19th. Arrive at court for 11:30 charge conference. Bad news. Yanks are playing a day game. I park in my usual lot 50 yards from the ball yard. I have no doubt the game will end when court does. My two trial bags on the wheelie are now accompanied by two exhibit bags slung over my shoulder for a medical illustration and a model of the spine, pelvis and hips.

The plaintiff's treating orthopedist takes the stand. He's seen her about 20 times. He's my last witness. Out come the spine and the medical illustration that I commissioned from Anatomical Justice, shown here, displaying the before and after of plaintiff's hip surgery. The doctor comes down off the witness stand for an anatomy lesson and tells the jury what happened to his patient's body. I disappear into a place behind the jury and ask him to explain what the heck all those bones are, what happened in this accident, how the woman was put back together, and what her future holds. Nothing resembling legalese crosses my lips.

In a proper direct exam, the lawyer should barely be noticed. The entire focus must be on the witness. My cross exam style is, of course, quite different. A proper cross has the lawyer "testifying" and the witness simply agreeing, or disagreeing. Unless, of course, one decides to break those rules. Which I might do tomorrow for defendant's orthopedist.

Defense tries in cross-exam to claim that her back injuries are pre-existing by using records from several years back. Their problem is that their own experts don't agree in their reports that any of her complaints were pre-existing. They can't. Those records were never given to them.

My case is now in. I relax a bit. Maybe I'll even eat. Maybe.

I head back down the hill to the parking lot. The streets are filled with blue Yankee shirts. The strains of Sinatra singing New York, New York waft out of the stadium, filling the Bronx air. The game has just ended. The 20-minute drive home will take an hour.

Friday, June 20th. We have only one witness again today, a defense orthopedist. His report discusses only the medical records from 2005 and his examination in March of 2008. He has not seen any pre-accident records. He has not seen any films from 2006 or 2007 regarding the plaintiff's post traumatic arthritis of the hip. He has not seen the records of her current treating orthopedist for the past two years. Testimony should be quick. I do not anticipate the need to impeach him (too much), since he hasn't seen the important records.

But it won't be easy. Because there he is, standing in the courtroom by one of the big picture windows looking at films he has never seen before. Or rendered an opinion on before.

The jury comes in and he takes the stand and he starts to talk about all the records and x-rays that were not included in his report. I object. The judge lets him go anyway saying he can discuss things that are in evidence. It is now trial by ambush. There is no report to work from. There is no deposition of him (not permitted of experts in New York). And no way to know what will come out of his mouth. The jury can see my evident displeasure.

The defense has been created during trial. I will comment on this in summation. (The reader would do well to note here, however, that neither of the defense trial attorneys were responsible for the day-to-day work-up of the case. These postings are intended to give the day-to-day flavor of what a trial is about and the types of decisions that need to be made, not criticize opposing counsel, who were both quite experienced and able.)

The doctor testifies, contrary to her treating physician, that based on the films he saw by the big picture window that very morning that there is no post-traumatic arthritis. He says that, contrary to her treating physician, that a hip replacement will not be needed in the future. I need to modify my cross-exam.

I start by using him as my own expert. I'll get some good stuff first before I impeach him. I pick up the skeletal model and, while I stand directly in front of him and the jury, walk him through the shattering of the acetabulum -- that's the socket part of the hip's ball-and-socket joint -- in the accident when the femur was rammed through it. With my hands on the model I pull the femur out of the socket and push it back to the place it was dislocated and ask him if he agrees on the mechanism of injury, and the risks ahead due to this trauma. I walk him through the two reductions of the dislocation and the repair of the fracture and the risks of post-traumatic arthritis. He asks for the spine I am holding and I assent to let him use it, contrary to common cross-examination principles. I'm breaking a rule because I am, at this point, using him as my own expert to describe the uncontested initial trauma.

I stop lobbing softballs to the witness about the nature of her initial trauma and surgery when it comes time to discuss her current condition. I cross him on the fact that the opinion of "moderate disability" that he gave in his report -- that he now claimed in court was based in part on pre-existing issues -- couldn't possibly have been the basis of his opinion since he hadn't seen those records when he wrote his report. He is forced to modify his opinion and claim that he was only talking in the abstract and not about this patient. I don't think the jury is fooled, but I won't know until the verdict.

I force him to concede she has current disability due to the hip fracture, that she can't do her job because of it, and force him to concede she is limited in her ability to do household chores.

A courtroom observer, impartial, tells me that cross went well. Unfortunately, she isn't on my jury.

I go to sleep with a notepad by my bed for the bazillion thoughts that are running though my mind about the trial.

Query: Do hourly lawyers get to bill for the time that they obsess and think and strategize about a trial when they are home with the family?

Next Up: Two additional defense witnesses. Stay tuned.


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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

I've been scanning some of the 2,000 posts that accumulated in my RSS feed reader while on trial and these jumped out of interest:

So that's how tort "reform" gets done (Justinian Lane @ TortDeform): regarding the very wide disparity in money spent by big business and consumer groups for lobbying efforts. Coverage of a NYT article on the subject at TortBurger;

New York Chief Justice Judith Kaye to be leaving? (Scott Greenfield @ Simple Justice);

Clifford Shoemaker gets sanctioned (Seidel@ Neurodiversity). He is the attorney that issued an extraordinarily abusive subpoena to Kathleen Seidel, and she fought back and won. The court wasn't kind to him. (Previously here: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena; and Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned);

George Carlin is dead. He didn't pass away (Randazza @ The Legal Satyricon);

The first ever thong lawsuit? (Day @ Day on Torts);

New York's medical disciplinary system makes the news (Scheurman @ TortsProf);

In voir dire, does a bumper sticker tell you anything? (Reed @ Deliberations);

So that's what happened in the world of personal injury law while I was on trial (Schuelke, Personal Injury Law Round-Up, #67)

So that's what happened in the world of law while I was on trial (Blawg Review #165 at French-law.net)

What impact do medical malpractice caps have? (Miller @ Maryland Injury Law);

And that is one hell of a hailstorm (Coffield @ Health Care Law Blog)

Labels: Random Notes

We finished jury selection Friday, and today we open...

Tuesday June 17th. The action against the host vehicle, the one the plaintiff was in, settles for the small policy limits. This is now a damages only trial against the car that hit my client from behind.

The judge gives an opening charge to the jury along with a small historical lesson the Bronx. We open, and I tell her story, starting from the middle. Because the accident is not where her life started, but where it changed. I start with the change. Then weave back and forth between past and present.

The first witness is the driver of the car my client was in, who testifies about the plaintiff's night before the accident, the totaling of his car on the highway and the extrication of my client from the car with the jaws of life.

The plaintiff's daughter testifies about returning to New York to help her mother, the physical pain and emotional damage to her that she observed, and her rehabilitation.

Plaintiff testifies about her life before the accident, the accident and the problems she has faced.

The judge rules that a videotape we made that demonstrates the difficulties she had five months after the accident -- some refer to these as Day-In-The-Life videos -- will not be allowed into evidence. He says it is too prone to manipulation and that outweighs its probative value. I argue that these have been used for decades, and that he can't exercise his discretion on this particular tape without actually looking at it. I lose the argument. Trying to see the glass as half-full, another lawyer tells me that the judge may simply be looking to cut down any appealable issues for the defendants. That is small consolation to me.

Leaving court, the Yankee fans are starting to arrive for tonight's game, two blocks away.

So this is the basic summary of trial: Spend day in court. Prepare for next day at night. Obsess in free time.

The headline news is of gay marriages in California. I assume the legal blogosphere is generating a gazillion pixels on the subject. I haven't checked my RSS feed reader in many days.

Wednesday, June 18th. My vocational economist takes the stand to discuss the loss to the plaintiff due to her difficulty/inability in doing household chores such as cleaning, shopping and cooking. He places a value on her time for these items. That which she can still do takes much longer. Her time is compensable, as is the value of finding someone to do these tasks. Defense crosses him on the fact that friends and neighbors help out. I sit there and wonder: And therefore the defendants are not responsible? She must go begging for help for the rest of her days? I drop some notes into my trial book for summation.

Since it's a short day I drop into the courtroom next door and spend 20 minutes watching a friend trying a case with a brain injury. Much time is spent on establishing the issue of a car's title. Not particularly exciting.

I head home and use the home office to prepare for Thursday, a pre-charge conference with the judge and my orthopedic witness.

At dinner I pick at my food and pretend to be engaged with my children while thoughts of cross-examinations, evidentiary issues, summations, jury charges and whatnot fill my brain. My wife is not fooled, having seen this routine many times before. I try to work right after dinner but a fierce thunderstorm forces me to shut down the computer and spend more time with the kids. And that is a good thing. For all of us. Storm passes, kids get tucked into bed, and I return to the home office. A better printer and a small copy machine would be nice to have.

Next up, the orthopedists take the stand.


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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

An issue has arisen in recent years about the taxability of personal injury settlements when a confidentiality agreement is reached. Generally, such settlements are not taxable pursuant to IRS section 104(a)(2). But the issue reared its head due to a settlement involving Dennis Rodman back in Amos v. Commissioner of Internal Revenue when Rodman kicked Amos, a camerman, in the groin during a Chicago Bulls game. (Amos-v-Commissioner.pdf)

Prior to suit they reached a $200,000 settlement. But part of that settlement included a confidentiality clause. So the IRS brought an action claiming that part of the settlement was taxable. And the Tax Court agreed, ruling in 2003 that while the proceeds for the personal injury portion were not taxable, that any part of the money that was in exchange for the confidentiality agreement would be. The court wrote that "if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination." In the end, the court ruled that Amos was to be taxed on $80,000 of the settlement.

And so that opened up any personal injury settlement that includes a confidentiality clause to potential scrutiny. So what's a lawyer to do? (Question courtesy of Drug and Device Blog.)

While others have suggested placing a number, perhaps $1, in the agreement on the value of the confidentiality agreement -- part of the "express agreement stating what the amount paid pursuant to that agreement was to settle" -- I think an issue still lurks. It seems quite possible -- and I say this without much in the way of knowledge of tax law -- that the IRS would want to go to the merits and look at the actual injuries and compare that to the amount received if they believed a great disparity existed between injuries and recovery. It seems that a $5,000 injury that resulted in a $100,000 settlement, for example, would raise eyebrows regardless of what the legal papers claim.

But the problem really exists if it is simply the defendant that seeks the agreement, as has traditionally been the case. The defendant doesn't want to be seen as a mark to other potential litigants.

The internet age and issues of privacy and identity theft, however, shift that dynamic. Would a plaintiff receiving a large award really want the information public? Likely not. In fact, at my firm's web site where I discuss case resolutions I have stripped out the names of my clients for just this reason. Those recoveries are no one's business but the parties themselves.

And so the solution for an attorney to explore with the settling client -- I'm not a tax lawyer and this is not tax advice, disclaimer, disclaimer, yada, yada, yada -- is actually somewhat simple: Both sides are seeking that confidentiality agreement. The consideration for the confidentiality agreement is the mutual promise for confidentiality. Plaintiff, simply put, doesn't wish to alert potential thieves and hustlers that such funds exist. This is a real issue.

Along these same lines, an attorney should be wary of signing any agreement that says the funds are being paid to dispose of a claim was dubious, frivolous, meritless or any such other claptrap. Incredibly, I have seen releases written that way. ("But that's our standard release, everyone signs them!") Signing such a document could be seen as an admission that the amount paid was for something other than personal injury, and therefore subject the client to taxation.

And yes, I did have fun doing an image search for Dennis Rodman.

See also: More On Taxation of Confidentiality Agreements (Drug and Device)

Labels: Personal Injury

Jury Selection started yesterday, and now continues:

Friday, June 13th. Jury selection drags on the whole day. One of the defense lawyers tries hard to bond with each potential juror. He talks of movies, television shows, the Belmont Stakes, Sydney Sheldon books and anything that may be of interest to the potential jury. I contemplate stopping him with an objection, but decide that the benefits of a backlash against him for dragging this out outweigh the benefits of finishing the selection process quickly. Also, I like to use this stuff in summation, where I remind them that I am here to talk about the case, and only the case, and am not trying to suck up to them or charm them.

A juror tells us he was sued as the owner of a car, when his wife was in an accident. The claimant, he tells us, trumped up the damages. He even saw the guy remove a cervical collar after visiting their home. Since it happened 20 years ago, and he says he says he is still bitter about it, I ask that he be removed for cause. The judge disagrees, and I exercise a peremptory challenge.

I exercise another challenge on a woman who never smiles. While she certainly answered all the questions "correctly," I make a gut call based on body language.

Another juror has a husband that sells insurance. That is usually a reason to challenge a person for cause. But she works for a child protective services agency, and seems to have a warm and pleasant disposition. She's the type of person you would feel comfortable talking to, which is important for my client when she needs to open up on the stand. I keep her.

Another juror works for a cancer hospital and helps the dying. Since my client works with the elderly, principally those with Alzheimer's and dementia, this is a great fit. But she takes herself off the jury saying she can't be fair. I ask her anyway to expound on why she enjoys her work, since my client enjoys hers and her inability to do her work is a significant part of my case. Since there are many people who don't enjoy their work, and some may be on the jury and not necessarily believe that there are people that actually enjoy what they do, I'm eager to have someone similar to my client discuss how and why she loves hers so much.

A couple of people indicate that they will give the plaintiff whatever she asks for, since they know she has already won the liability case. These folks get tossed for cause.

Jury selection ends after two days. That was way too long. We are told to come back Tuesday for opening charge, opening statements and witnesses. My plan is to put the two drivers on the stand first and then my client.

Next up: We open and start taking evidence


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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

Continued from yesterday, when I was assigned to a trial judge:


Wednesday, June 11th: Since my home is more convenient to the courthouse than my office, I've hauled back a few trial bags full of stuff, and have my skeletal model and medical illustrations strewn about the home. My five year old sees the trial bags and tells my wife, "Daddy's got a LOT of homework."

I prepare for trial by thumb wrestling with the kid. He beats me. But he cheated by using two hands. I hope it's not an omen.

Thursday, June 12th. Jury selection starts. The leasing company has a new lawyer, since the other one had a jury picked elsewhere. We have a panel of 25 and will use a courtroom for selection. Clients do not attend, though permitted. It is the local custom due, in large part to the fact that we usually use cramped jury rooms to pick.

Some folks say cases are won and lost at this stage, so you hate to mess up. Some of the jurors that we see:

1. A juror says to one of the other attorneys, "The insurance company should just give her what she asks for" (since liability is already decided). I don't know if he is trying to talk himself off the jury or mis-speaking. He speaks English well, but it is clearly a second language to Spanish. I follow by asking, if Ms. Plaintiff asks you for all the gold in Fort Knox, does that mean you would give it to her?" He says of course not, indicates he had mis-spoken, and that any award must be fair and reasonable. Defendants want to knock him off for cause, and I say no. We get a judicial ruling. I lose. He's gone for cause.

2. A juror says he doesn't feel right holding the leasing company (owner of the car) liable just because the driver was negligent. I don't think he's trying to talk himself off, but it doesn't really matter. He's a goner. Defendants love this guy and desperately try to rehabilitate him but he sticks to his guns. Gone on consent.

3. A juror claims not to speak English well. I've seen this routine many times before. I never believe it because, if they couldn't speak well, they wouldn't have made it past the jury clerk. In order to avoid a mass exodus from the courtroom, I use my canned speech about the importance of jury duty, it's place in the Bill of Rights, and the desires of our nation's Founders to keep power in the hands of the people, not all-powerful judges.

4. A juror has a son about to do his third tour in Iraq. He would otherwise be OK, but as serious as my client's injuries are, I don't want him doing a comparison to what his son and friends are going through. I exercise my first peremptory challenge.

Lunch break across the street at the Court Deli. The crowd is a stew of lawyers and litigants, witnesses being prepped, cops and court officers, judges and clerks. Perhaps some folks who are building the new Yankee Stadium two blocks away are also in the crowd. Soccer is on the big screen TV. You watch what you say and you use your best table manners in this diner because you don't know which members of the jury pool may be close at hand.

Selection goes slowly with four lawyers. The crawling pace and a revised trial schedule from the judge shreds my witness schedule. I have to start over. Scheduling witnesses, which always includes doctors, is the bane of trial practice.

Tomorrow we will only work until 3. I hope to finish selection and open. Monday is off. Opening Friday afternoon and then continuing Tuesday is not an ideal situation.

I arrive home exhausted and a bit agitated at the delays. The new puppy promptly pees on the rug.

As I type this up at night I see that the exploding story of Ninth Circuit Chief Judge Alex Kozinski and his collection of comically lurid photographs is all over the legal blogosphere. While the story is certainly fascinating, and has plenty of sizzle, I can safely predict that not one single juror in the room knows who the judge is. Or cares. The lawyers probably don't know him either. It bears no relation to real life. Unless, of course, you are the guy in the middle of the storm.

Next up: Jury Selection Continues

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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

This blog was silent while I was on trial. But I kept real-time notes. They now follow, with Part 1 today:

Tuesday, June 10th: Arrive Bronx County Supreme Court for 9:30 calendar call in "STP," the Special Trial Part. Justice Howard Silver acts as traffic cop up on the 7th floor of the massive courthouse, sending some cases to pick, adjourning others and hopefully settling a few. On previous appearances here my case had been marked, after several adjournments, "final." Then it was marked “final, final." And finally it was marked "absolutely final," as he has made clear he would not accept additional applications for more time.

One of my three adversaries strolls in at 11:00, and asks for another day or two, because he has a jury picked in Brooklyn. That case will either settle, he says, or he will find another attorney to try this one. Silver says no way, no how. Go pick.

At 12:30 we are assigned to a judge (instead of being sent to the jury clerk), and told to report back at 2:00. The assigned judge takes a shot at settlement.

The case details: July 2005 rear-end collision on a local highway. My client is a back-seat passenger in the lead car. She suffers a fractured hip, among other injuries, has a plate and screws put in, and stays in the hospital and rehab for 16 weeks. Her orthopedist says she has traumatic arthritis now and will need a hip replacement in the future. She is in her 60s and worked as a nurse's aide. Summary judgment was granted 20 months ago against the driver and owner of the car that hit her from behind. Interest at 9% will run from that point. There is also an open issue, albeit a small one, as to whether the driver of her car shares in any liability.

For reasons that escape me, the leasing company that owns the car that plowed into her from behind never calls me and tries to dispose of the case. This is odd since loss exposure can reach seven figures, with big interest piling up. They have litigated to the end of the line. As a result of the running interest, and a deterioration of my client's condition over the two years, I have raised my demand. Four times. That's what happens when you use real numbers for demands instead of pie-in-the-sky stupid numbers.

The three defense lawyers represent the driver of the host vehicle, the driver of the trailing vehicle and the leasing company for the trailing vehicle. Under New York's vicarious liability law, owners were liable for the negligence of their drivers until Congress passed the Graves Amendment, also in July 2005. I filed this suit after the House and Senate agreed to the amendment, but since it was before President Bush signed the legislation, my client can proceed against the leasing company. (Not so for the also-injured driver of the host vehicle, who filed suit well afterwards.)

Settlement talks don't work. We are told to return Thursday to pick the jury and to be prepared to open Friday.

Next up in Part 2: Jury Selection Starts

-----------------------------------------------------------

Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)
  
  

Synopsis of the case at my firm's website.

Labels: Trial Practice

Personal Injury Law Round-Up #66 has been put up by Brooks Schuelke.

Blawg Review #163 is up at More Partner Income.

My regular blogging will resume when my trial is over.

When I went up to Albany on May 19-20 to lobby the legislature on civil justice issues, I also sat down with Assemblywoman Amy Paulin for 15 minutes on Assembly TV. The purpose was to discuss her legislation on counterfeit drugs.

The issue had come to her attention due to media coverage of New York teen Timothy Fagan, who I had represented. Tim had been injected back in 2002 with counterfeit Epogen after an emergency liver transplant at the age of 16. Tim's drugs, it had ultimately been discovered, had been low dose 2,000 u/ml Epogen that was sold out the back door of a Florida pharmacy, "uplabeled" at a trailer park to 40,000 u/ml, a dose 20 times stronger, and sold back into the mainstream distribution system. His medication had been owned by at least 10 different companies around the country as they were traded through a vast secondary market of wholesalers before finding their way into his drugstore on Long Island and then his home. This was the source of a 60 Minutes story, among other national coverage, as well as a book. (See, Counterfeit Drugs Resource Page at my website, for background. And more on this blog at the counterfeit drugs label.)

The bill Assemblywoman Paulin now sponsors would force electronic pedigree labels on drugs from the point of manufacture through the distribution system. With the distribution system locked down, it would make it exceptionally difficult for counterfeiters to penetrate. I had first discussed this with her back in 2006 and was at her side for her first press conference on the subject.

While I hesitate to let readers see the too-serious side of me from an audio-visual perspective, the issue is, frankly, too important not to discuss. If counterfeits could make it into Tim's house, they could make it into your house, my house or the White House. So here is the clip:

Labels: Amy Paulin, counterfeit drugs, Tim Fagan's Law

This first piece comes from Medical Economics, and was written by a Nevada physician that had been active in the tort "reform" movement there. He recounts the story of clear negligence -- admitted by the pathologist that read the slides -- and the jury verdict notwithstanding the evidence in favor of the doctor. The author and tort "reformer," medical oncologist Arnold Wax, is appalled and now understands the ramifications of what he brought to his state. (h/t Kevin, M.D.) From the article:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.

...

As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages... The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

That article, which should be read in full, appeared today and just missed the Personal Injury Round-Up by Brooks Schuelke that appeared in my feed reader at the same time. As usual, Brooks brings all the news that's fit to link.

Labels: tort reform

(There is now an update at the bottom of this post. This pleading was never filed.)

Now this is a Texas-sized blunder. In an answer to a lawsuit yesterday, defense attorney David Ayers of Houston called the claimant a "dumbass" and a "fucking idiot." Oops. A copy of the filing is now at Overlawyered.

I will assume, based on the language that was used, that this filing was created as an internal joke at his firm of Werner Ayers, and that it was errantly filed instead of the real McCoy. There is really no other explanation I can think of other than, perhaps, it being intentionally done while in a drunken stupor.

But now what? This is a modestly sized firm of seven lawyers, doing corporate defense work in commercial and tort cases, and here is the type of story likely to get passed around. And around. And around. And that means they need to think in terms of three things:

1. Sanctions from the court;
2. Upset clients who aren't keen on their attorneys acting this way; and
3. Their Internet reputation.
   

On the first part, it seems that they must pick up the phone and call the judge immediately, if they haven't already done so. Explain exactly what happened, that it wasn't meant to be filed, and hope the judge has a Texas-sized sense of humor. Then beg for mercy. And cite, hopefully, a previously unblemished ethical record.

On the second part, I note from Ayers' biography that he has one client in particular that apparently gives him a lot of business:

David Ayers, partner, serves as national defense counsel, coordinating and defending a mass tort docket across the country for a Fortune 100 company

Call the big client. And all the other big ones too. And the small ones. It's better that they find out from you than to hear than to about it from others. Or from the newspapers.

The third part is trickier. Because it is the type of story to be picked up by a wide variety of blogs, both in the legal blogosphere and in traditional media, and that means that for years in the future when people Google the firm name or the lawyer's name this incident is likely to pop up on the first page. And so picking up a copy of Dan Solove's book, the Future of Reputation on the Internet, would be a wise thing. (Or read it for free.) If they don't understand the potential of such an incident, this book and the potential flurry of blogging on the subject might swiftly bring it home.

So here is what I would do: Create a blog. Why? Aside from there being many good reasons to create a blog, something Kevin O'Keefe writes on often, one that should not go unnoticed is that a well-written blog will eventually knock the screw-up off the first page. In a year it could be very deeply buried for anyone doing a quick, routine look-up of the firm. A dumb mistake just seems less important when it pops up on page five than on page one. So a blog will bring the twin benefits of demonstrating expertise in an area and deep-sixing the blunder. It will take time, but it will happen.

In some fashion this isn't much different than the story of Flea, who was blogging his own medical malpractice trial under a pseudonym and saying things you wouldn't want a jury to hear, only to get busted on the witness stand and then outed on the front page of the Boston Globe. And so the things that I discussed a year ago in Flea and Crisis Management very much apply here also. This is the type of event that they have to be proactive about in order to limit the damage.

Updated 6/6/08): I received a call from a partner at the firm, Scott Raynes. He alerted me that this was an internal practical joke, and that this was never filed. His comment on Overlawyered (#4) is reproduced here:

This was never filed. It was a joke within our office: this fake answer was created and doctored to make it look like it had been filed. It was then forwarded to Ayers, the partner on the case. Once David recovered from the shock and realized it was in jest, he forwarded it to the plaintiff's lawyer (an old friend of his back when they were at Fulbright & Jaworski together) to share in the joke. The plaintiff's attorney called Ayers to confirm that it was, indeed, a prank. There is no such filing in the case.
Scott Raynes
Werner Ayers, L.L.P.

A big thumbs up to the firm on knowing a thing or two about damage control for a joke that went a bit out of control. They've utilized comments on the blogs that referenced it and picked up the phone to make a call to make sure it got immediate attention.

Labels: Attorney Ethics

I've little time to post regularly and have a trial coming up. But these were all interesting bits I would have loved to write on this week, or are simply worth reading:

A new book is out from Albany Law prof Timothy Lytton (Harvard Univesity Press): Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse. A snippet is here (h/t Steiger):

The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.

...the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.

For those who have emailed me about going out on your own: Solo lawyer guru and author Carolyn Elefant is running a workshop on setting up your own practice on June 30th in Washington DC;

The China Law Blog has modest hopes for Blawg Review #162, hoping merely to achieve world peace;

Do the recent crane collapses demonstrate the dangers of federal preemption? Justinian Lane at TortDeform thinks so; He also debates Ted Frank regarding an amicus brief Frank submitted in Wyeth;

A major insurance company has apparently been reading 1984, as they reportedly changed the titles of Claims Reps to Counselors (Shigley);

More on how medical apologies work at Overlawyered. If defense lawyers start telling the docs and hospitals to act like actual humans when the screw up, instead of denying, obfuscating, running away and scaring patients in the waiting roooms, I'm going to have to change careers (see also: How to Put Medical Malpractice Attorneys Out of Business);

Want to know what it's like inside a tornado? This bank surveillance video captures it -- keep your eye on the glass doors and the action outside.

And a judge orders a deposition right on the state line after the parties couldn't agree where it should take place (Lowering the Bar). Gotta love that one.

Labels: Random Notes

The US Supreme Court denied certiorari today in the fantasy baseball case of Major League Baseball Advanced Media v. CBC Distribution. That dispute had formed the basis of my April Fools Day hoax, claiming that cert had been granted but that a dispute arose when three members of the Court recused themselves due to participation in a fantasy league, and two others did not.

The suit revolved around the use of real statistics generated by players at the major league level for use in fantasy leagues, when major league baseball claimed that those that wanted to use the stats needed to pay a licensing fee, while plaintiff CBC, which runs a service for fantasy players, claimed no such fee was needed under the First Amendment. Since the Eighth Circuit Court of Appeals had sided with CBC, Major League Baseball has now definitively lost the case.

The hoax, and the underlying legal and baseball issues of recusal that inspired it, was the subject of a second post: Deconstructing a Fantasy (And Who Was Duped?) The brief order did not mention anyone recusing themselves for participating in a fantasy baseball league.

The dispute over when court members should recuse themselves, however, remains unresolved.

See also: Sam Alito Talkin' Baseball (and Antitrust): (Tony Mauro @ Blog of Legal Times)

Labels: April 1, First Amendment, Judiciary