After our spirits were crushed when our little Ben & Jerry's birthday video was banned, I decided to follow up with an email for the reason. So here is the reason they gave us:

They claim their lawyers wouldn't approve it. I kid you not. Here is the direct quote from the email I received from their marketing department:

While we appreciated it internally (and we did), there is no way our legal team would have allowed that one to go through.

Now that would be totally nuts. Except that Totally Nuts is already in the Graveyard of dearly departed flavors, so it must be something else.

I also note that it doesn't appear to violate any actual contest rule. (Ben-Jerrys-VideoRules.pdf) So I followed up, wanting to know, did the lawyers really look at our video?

And the answer was, apparently not. It wasn't a lawyer that sent us into the freezer, but concerns that a lawyer might do so in the future. From email number two:

It would have had to pass by Legal in order to be considered a top ten finalist. I've worked here for ten years and I know it would not have passed.

Again, no rule violation. Just a concern that maybe there would be a lawyer without a sense of humor, because in a third email I was told it might have "inappropriate content."

Now Ben Cohen and Jerry Greenfield sold out in 2000 to Unilever, a massive conglomerate. We don't begrudge them the money they made from building the company and pursuing the Americone Dream. But it appears that what's good for the goose doesn't work for the gander, as our own dreams of fame and glory have been obliterated before our eyes.

If we were shot down by lawyers we could understand that. Sometimes it's the lawyers' job to be wet blankets. But the marketing department? What in the name of Cherry Garcia is going on here?

Marketing people are supposed to be the kind of folk who push the limits. Creative souls. Not fearful little bunnies, afraid of their own shadows. Let the lawyers be Vanilla. The marketing people should be Wavy Gravy mixed with Wild Maine Blueberry, willing to go the Full VerMonty served with Nutty Waffle Cone.

It's now clear that this contest is little more than a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham. If you're as upset at our family is you can whine, belly-ache and complain to benjerrybirthday@ugenmedia.com.

And does anyone know a good ice cream lawyer?

Labels: Odds and Ends

You have to see it to believe it. One of New York's Finest, while monitoring a monthly demonstration that favors bikes over cars, simply walks over to a cyclist and clobbers him. If I didn't see it on video, I wouldn't believe it. Worse yet, the cop then arrests the bicyclist for attempted assault, disorderly conduct and resisting arrest.

First, the video (with a hat tip to Simple Justice and Concurring Opinions):



Perhaps even more incredible than the flat out assault on the rider is that apologists have started to come out of the woodwork because, you know, for some people cops can never do wrong. Here is the New York Post's pathetic attempt to defend the indefensible:

It looks like one thing led to another Friday, and the unidentified officer seemingly pushed a Critical Mass rider to the ground as the group snaked through Times Square.

Nobody was hurt.

And, since the rider got a traffic ticket and was cited for resisting arrest, there may be more to the story than what's on one online video.

Seemingly pushed? That reminds me of Groucho Marx: "Who you gonna believe, me or your own eyes?"

And "Nobody was hurt" is now a justification for assault by the police? The rider, now identified as Christopher Long, could have broken his neck with that fall. Why do I think that if the spouse of the unnamed editorial writer was the victim, s/he might be singing a slightly different tune?

And "there may be more to the story?" Good grief. If there was more to the story -- if Long was a trouble-maker that the cops were looking for -- you wouldn't see the other cop in the video just standing there. The two would have cornered and held Long.

The Post goes on to sum up: "It's hard to root against the cops." Well the masses are not rooting against the cops. That is a miserable straw man argument. This cop (Patrick Pogan, a 22 year-old rookie) should be terminated. This cop should go on trial for assault. This cop should pay the piper. For our safety.

And if the video isn't enough to convince the Post, maybe they should look at the flat-out lies Pogan made about the incident in the supporting deposition that he gave about the Long arrest, where he claimed that Long deliberately rode into him (click the image below to enlarge):

Obviously, the video shows Long doing exactly the opposite, trying to steer away from Pogan as Pogan started walking into a path that would intercept Long.

And here's the really interesting part: The cop did this in full view of a big NYC crowd. And yet still believed he could get away with it. And without video, there is a good chance he would. Because what jurors -- unless they happen to be defense lawyers in which case they would get booted from the jury panel -- would believe a cop would act that way?

With a little bit of luck, the cop will not only be arrested, but a civil suit will be brought. And perhaps, and I know this is fanciful thinking, other cops will actually start to get rid of bad apples as they tarnish the names of the good ones.

Elsewhere:

• Video shows NYPD cop assaulting cyclist (NY Daily News)
• Update on Bull Cop Who Shoved Man Off Bike (Gawker)
• NYPD Bruise (Smoking Gun)

And regarding a new police beating video that has surfaced:

• NYPD Police Brutality (Reluctant Habits)
• NYC Cop David London Placed on Desk Duty After Clubbing Handcuffed Army Vet Walter Harvin (Black Political Thought)
  

Updated: Scott Greenfield has a piece on how this case would have likely wound its way throught the criminal courts if there were no videotape: Follow-Up on the "Big Shove"

Labels: Personal Injury

The Journal News today publishes my op-ed on tort "reform." This is a regional paper owned by Gannett that serves the commuter counties north of New York City.

The link is here: Want to cure high malpractice rates? Target bad doctors

A copy in pdf format is here: Turkewitz-Tort-Reform.pdf
----------------------------------
Re "Tort reform needed in New York state," a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the "trial-bar friendly state Legislature" for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:

The DeRussy letter repeated a common myth in an argument for tort "reform," claiming that one of the primary reasons for increased medical malpractice insurance was "unusually high judgments." DeRussy couldn't be more wrong. Last year doctors in the state were hit with a 14 percent increase in medical malpractice rates. The instinct among those who want to change the tort laws by granting some level of immunity or protection to the wrongdoers was to blame the lawyers or juries. A little protectionism called tort "reform" in the way of artificial caps on awards would surely cure this problem. Right? Except that medical malpractice verdicts had nothing to do with the increase in rates. Rather than make simple conclusory statements, let's look at some actual facts:

New York Superintendent of Insurance Eric R. DiNallo, who sets the amount of rate increases, said last year that the 14 percent jump comes "after years of artificially low rate increases" and that "the rate increase comes after years of setting rates below what was needed." The rates were raised in order to avert a possible "irreversible crisis." Did doctors previously complain that their rates were too low?

New York had previously "appropriated" $691 million of medical malpractice insurance reserves from the Medical Malpractice Insurance Association to balance the state budget. This association had been established by the state to satisfy any deficiencies attributable to the premium levels for malpractice policies, and for reinsurance. That surplus would have been used (if not taken during the Pataki administration to balance the state budget) for maintaining the solvency of New York's medical malpractice insurance carriers.

OK, so the problem was caused by lousy state policy under the Pataki administration by setting artificially low rates, while also swiping the doctors' rainy day fund. Surely, the problem was also caused in part by increasing medical malpractice cases and payouts, right? Well, no. In fact a study has shown that the number of medical malpractice cases in New York has remained static, and the amount of payouts has kept pace with other health-care costs. When premiums go up, but the payouts are flat, you know you have a problem. But that is not problem that was created by those who were injured by negligence, nor by their counsel.

And have high medical malpractice insurance rates in downstate counties chased away physicians, as the fear-mongers suggest? Not even close. It seems that the number of doctors in New York jumped by 16 percent from 1995-'03, an increase greater than our growth in population. And The New York Times reported just last year that while there was a 6 percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors, the way they are spread throughout the state is wildly uneven.

Perhaps the problem is an onslaught of frivolous litigation? Nope, not that either. A report in the New England Journal of Medicine disproves the myth of frivolous malpractice litigation. Here's a suggestion for tort "reformers" like DeRussy, who wish to create artificial one-size-fits-all caps for the victims of negligence: Government clearly created this insurance problem, as DiNallo admits. We, therefore, need insurance reform. Trying to fix a government-created problem on the backs of the most badly injured New Yorkers is not only cruel, and not only lousy policy, but it also won't work. For it wasn't the victims who created the problem. (It's worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice.*)

Now here is a reform that the doctors may want to entertain: With up to 98,000 people per year dying from medical errors according to the Institute of Medicine, and with 4 percent of the state's doctors contributing to half of the malpractice suits and payments (according to a Public Citizen report) maybe, just maybe, a little more policing of the medical profession might be in order to weed out the bad apples?

A good way to start real reform would be to take the rainy day fund money back from the general fund where it had disappeared. That means, however, a responsible state government engaging in sound budgetary policy instead of shell games. Better policing of the few doctors who do most of the damage is the second avenue that the state must embark upon, and not just for the sake of insurance premiums but for the sake of future patients who may come under their care.

The writer, who lives in New Rochelle, is a Manhattan attorney and the author of the New York Personal Injury Law Blog.
--------------------------------------------------------
*Updated: As I sat in court this morning I read through the op-ed and saw that they made edits due to length. One in particular is noteworthy, since it may lead the reader to a wrong impression with respect to New York's caps on personal injury cases:

As it appears in the paper:
(It's worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice.)

As it was written and submitted:
It's worth noting, by the way, that New York already has caps on personal injury awards, including medical malpractice. But they are not one-size-fits-all. First there are members of the community that sit as a jury. Then if the award is too high (or too low) the trial judge can order a new trial if s/he believes the award shocks the conscience of the court. Then there is a third level of review at the appellate level, where a verdict that is too high (or too low) can be thrown out if it deviates materially from what would be reasonable compensation. These standards are designed to fit the particulars of the case, and have proven to be ample safeguards since at least 1812. And that is how it should be.

Correction: In one portion of my piece I note that 4% of the doctors are responsible for 50% of the lawsuits. That should read 50% of the payouts. That doesn't affect any of the discussion of Insurance Department errors, of course, or the fact that a small number of doctors are responsbile for a huge percent of the problem, but it is put here for accuracy. (Via Overlawyered, see comment 4.)

Labels: tort reform

Since my picture has never before graced the pages of Wired Magazine (and likely never will again), I'll start with this link to their article on the NASA program. Gracing the top of their electronic page is my family watching Apollo 15 blast off to the moon on July 26, 1971. Two of my three brothers are on the roof of the old Vista Cruiser that we drove down from New York. I'm on the far left. (Photo credit: Dad).

Anne Reed (of Deliberations fame) finds her way to the pages of Trial Magazine for a story on what to expect (and not expect) of mock juries;

The Tennessee Supreme Court upholds a $13M punitive damage award against Chrysler;

Massachusetts adopts the "loss of chance" doctrine (via Walter Olson @ Overlawyered);

Google finds one trillion unique URLs (Macworld);

And most importantly, Scott Greenfield at Simple Justice meets the expectations of the masses with a great job hosting Blawg Review #170, honoring the 14th Amendment by looking at equal protection issues wherever he finds them. Which is to say, everywhere.

Labels: Random Notes

And so it ends. The Personal Injury Law round-up now appears to be dead. Again.

I started doing the round-ups on February 28, 2007. The first one didn't have a number, since I didn't know if I would continue it. But I enjoyed the challenge of scouring the personal injury blawgosphere to see what was out there. And I learned two valuable things:

• When you do round-ups, people on the web find you since you are busy throwing about links left and right;
• Doing round-ups makes you a better blogger, since you read the posts of others with a far more critical eye. It's an excellent way to learn good blogging technique.
  

But I stopped the round-ups on November 16th on my first year blawgoversary, because the round-ups meant less time for other posts. There are, after all, only so many hours in a day. I wrote at that time,

The Personal Injury Round-Up that I have been doing is now kaput. It was fun while it lasted, but very time consuming to do on a regular basis...I hope to spend more time on individual stories and, hopefully, occasionally write stories that are not yet in the press.

But lo and behold Brooks Schuelke, stepped into the void, picked up the ball and ran with it. Until today. Brooks has also realized that, while these may be fun to do on an occasional basis, it's tough to do week in and week out. He wrote today:

...the Round-Up has taken on a life of its own. Even with the help of a law clerk, I spent most of my blogging time looking for Round-Up stories at the expense of the more in-depth posts that I previously enjoyed. So after much thought, I'm not going to return to the Round-Up. I have really enjoyed the Round-Up, but I think it's time to move on.

And so there it is. Unless, of course, someone else sees an opportunity to create value on their blog while at the same time making themselves known in this niche. Maybe, perhaps, the round-up is only on life support? Perhaps someone else will step out of the shadows to embrace the project for a few weeks time, 'til it passes to yet another? Only time will tell...

(And I never did figure out if it should be round-up, roundup or round up. I've probably been screwing that up for a year and a half.)
---------------------------------------
Updated! And just like that, new life is breathed into the almost-still body of the round-up by TortsProf Bill Childs and his merry band of professorial bloggers! Click here for the official audio annoucement.

Labels: Personal Injury Law Round-Up

I hate to do this. I like Ben & Jerry's. The whole family does. We consider the boys extra brothers to the clan. If you cut us, we bleed Chocolate Fudge Brownie. Those are my folks to the right on one of our visits to the factory on a Vermont family vacation.

So when we made a little 30 second video for their 30th Birthday Video Contest, we expected it would be received with a sense of gratification, as it clearly demonstrates what the ice cream means to us. Not shock and awe, mind you, but at least a smile.

But alas, it was rejected. Rejected! Why? Due to "inappropriate material." Apparently, we shocked.

First, it's hard to believe they would refuse to post a video on their site that has inappropriate material given that about half the videos are already inappropriate, since they have kids in them and kids aren't allowed by the rules. (Hey, Turkewitz, take off your damn lawyer's hat and get back to your video!)

Second, is this what happens when a happy-go-lucky little ice cream company gets swallowed up by a giant conglomerate? It tries to show it has a sense of humor with a send-us-your-video gig, and then falls on its face? What would Ben say? What would Jerry say? They'd be rolling over in their graves at what has become of their beloved company, were either of them dead. Brothers, can you help us out here?

We coulda been stars. We coulda been somebody. That should be plural, but now I'm on a roll. We coulda been stars of the internet, instead of being woefully off-topic on this crummy little law blog where no one will ever find us.

As I was saying, and I know by now you are wondering where the hell the video is already, there doesn't seem to be anything inappropriate about a little BJ. That's Ben and Jerry, for the acronym challenged. But you can decide for yourself the appropriateness of the 30 second video that follows, for its Karamel Sutra flavor I should note, that has been:
BANNED BY BEN & JERRY'S!



Film and editing credit goes to my screenwriting brother Dan (whose own operatic Ben & Jerry's birthday wish was accepted) and script credit goes to my co-star and roommate.

Wait! There's more!!! What would a couple of movies be without their outtakes? First from my brother's film where I try hard to knock the ice cream off the cone, and then from our own video. Here they are:




Update: Ben & Jerry's Fear of Lawyers Kills Video Submission (7/30/08)

Labels: Odds and Ends

A medical liability round-up, from the other side of the courtroom well (Walter Olson @ Overlawyered);

A study of doctor blogs shows that many of them are revealing patient information (Ed Silverman @ Pharmalot)

Psssst....Blawg Review #169 is up at Whisper, and marketing is the theme.

And next week's Blawg Review will be hosted by none other than Scott Greenfield at Simple Justice. To say the blawgosphere is expecting great things from Greenfield is a significant understatement. An extraordinarily prolific blogger (120 posts in June, none of them short), Greenfield hasn't met a challenge yet in the blawgosphere that he's backed down from. Despite the bar being set so high for him, there is little doubt he will exceed it.

Labels: Random Notes

Al Pirro Jr. last week quietly settled a lawsuit for $200,000 that involved Jeanine Pirro and her failed political campaign for Attorney General. Jeanine -- also a former judge, District Attorney, failed Senate candidate against Hillary Clinton and now a talk show host -- was in the backseat of her husband's SUV on October 18, 2006 when it sideswiped a motorcyclist as they approached a light. The collision knocked him down, broke his ankle and sent him skidding along the pavement. The SUV was driven by a campaign staffer just weeks before the election.

The accident out on Long Island raised eyebrows when the police were accused of giving preferential treatment to the Pirros. While the officer on the scene first reported a collision between Pirro's SUV and Scott Lieberman riding his Harley, that report was subsequently deep-sixed after the officer saw Jeanine Pirro in the back and saw that the SUV was owned by her husband. The second accident report didn't have the Pirro vehicle in the accident. According to this New York Post story at the time:

Lieberman said that after talking to Horgan, cops stopped writing a two-vehicle accident report and started one saying he skidded off the road on his own.
"Investigation reveals no other veh. involved in accident," the final report reads.

According to an interview I conducted with Lieberman's counsel, Harlan Wittenstein, a copy of the original police report indicating a collision was given to Lieberman's ex-girlfriend who had been riding ahead and saw the accident in her rear-view mirror as she pulled up to a stop light. The original report clearly has Al Pirro's name on it as the vehicle owner. The subsequent police report only claimed a motorcyclist down with no contact and no Pirro name. The two reports are here: Lieberman.pdf

After learning the Pirros were involved, the police accused Lieberman of being a fraud as he was writhing in agony. Lieberman, who was taken to the hospital and needed surgery to fix his broken ankle, didn't take kindly to the accusation.

After leaving the hospital, an angered Lieberman posted signs at the intersection where the accident occurred that were seen by a pretzel delivery man on his regular route. The pretzel man had been directly behind the accident, saw the contact between the Pirro SUV as it changed lanes, contacted Lieberman, and his deposition taken.

The combination of the pretzel man's testimony and the second copy of the accident report with the Pirro name on it, according to Wittenstein, helped to seal a settlement for a case that had originally been marked "no pay." The police officer has apparently never been disciplined.

Al Pirro -- a disbarred real estate attorney who was convicted of 66 counts of tax fraud, whose license has been suspended (and reinstated), has been embroiled in head-line grabbing extramarital affairs, and generally been a burden to his wife's ambitions -- is no doubt happy to get at least one legal problem behind him.

Photo credit: NY Magazine (story on the troubled marriage)

-------------------------
More:

• What Happens When You're Run Down by Former DA Pirro? (Greenfield @ Simple Justice)

Labels: Car Accidents

Over at Concurring Opinions, Kaimipono Wenger asks the readership about what the worst "still-current" Supreme Court decision.

And the answer, to me, is a no-brainer. As I discussed back in January 2007, when I had a readership of three, the classic bombs were Plessy v. Furgeson, Dred Scott and Korematsu.

But Bush v. Gore stands in a league of its own, well above the others. For each of the others could be reversed 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 obviously been counted, since it is the people that hold actual power in a democracy.

One simply can't compare a reversible decision with an irreversible one.

Labels: Judiciary

When defendants do it, it isn't called "forum shopping." (Justinian Lane @ TortDeform). Which, he points out, is just a tad different than judge shopping;

Things to do while waiting for a verdict, in Texas (You-won't-believe-this edition) (Scott Greenfield @ Simple Justice, and Jamie Spencer at Austin DWI Lawyer);

Hmmmm....beer-sicles (Walter Olson @ Overlawyered)

And a more serious Walter Olson on the politicization of judicial selection with elections, and how campaign dollars contribute to tort "reform" (Olson @ Point of Law) which stirs up much reaction);

New York has higher hospital infection rates that the national average, and that ain't good (Jim Reed @ Zifflaw)

Church Answers Lawsuit of Fallen Man (Kevin Underhill @ Lowering the Bar)

Is that a rat in my entree? (Dustin @ Quizlaw)

What the hell was Joe Cocker singing? (We get a little help from our friend David Giacalone @ f/k/a with this short, must-see video)

Labels: Random Notes

I just came back from the courtroom where the matter of Judith Kaye (NYS Chief Judge) against Sheldon Silver (Speaker of Assembly) is being argued. This is the judicial pay raise suit that is, perhaps, the most unique suit ever filed in the state. The Assembly leader, Senate leader and Governor were all sued by Chief Judge Kaye in her capacity as head of the judiciary. (See: New York's Chief Judge Kaye Finally Brings Suit for Judicial Pay Raises)

Supreme Court Justice Edward H. Lehner was taking the arguments on summary judgment motions, just minutes after I had argued one of my own cases. So I stuck around. I listened for over an hour before having to bail out. And it looks like it could go all day.

The Chief Judge has created a thicket of issues by suing the Assembly, Senate and Governor, with the case being heard by the judiciary. Justice Lehner noted at the outset that he stands to benefit from a raise if he were to order it.

With about a dozen lawyers and assistants involved in the well of the courtroom or sitting in the gallery, it was at the outset hard to tell the lawyers without a scorecard. Numbers and names on the back of suits would have helped.

Peering out over his reading glasses from his dark wood paneled courtroom at 60 Centre Street -- and using the same demeanor he used to discuss whether a fall on wire on a floor was a slip or a trip, at issue on the case preceding this -- Justice Lehner delved into the legal morass of what he called "the most novel case of my court career." (Complaint)

Here is a sampling of the issues presented, just during the time I was there:

Is state Supreme Court the proper place for the case, or does it belong in the Court of Claims? (I hit this issue the day after suit was brought: Did New York's Chief Judge Sue State in the Wrong Court? ) Counsel for the legislature says this is a salary dispute that belongs in the Court of Claims while the Chief Judge argues that the money is ancillary to the constitutional issues that have been raised and that constitutional issues belong in Supreme Court.

Next up, Justice Lehner wanted to know what, exactly the co-plaintiff "New York State Unified Court System" was, as opposed to the Office of Court Administration, and whether or not a "system" was a proper plaintiff in this action. Who, he wanted to know, actually employs the judges? Is this an agency, a department, a legal entity of some kind that can bring a suit with Chief Justice Kaye? That answer came definitively from the attorney for the OCA, who asserted it was an independent institution of government established by the constitution. And while it has been a party before, both as plaintiff and defendant, no one, it seems, had yet raised the issue of whether it was proper as an entity as a party.

The third issue, and we are still a long ways from the actual merits of the case, was whether Chief Justice Kaye was suing solely in her representative capacity of the judiciary, or in an individual one also. Defendants had raised objections to her acting as a representative. Wouldn't this issue be resolved, the judge wanted to know, if we just amended the caption to make her an individual plaintiff also? That would raise the question -- and this wasn't mentioned in the oral argument -- about what happens if this thing doesn't settle and the case goes up to the Court of Appeals? Can Chief Judge Kaye hear her own case? While the instinct is to say "of course not," the fact is that every judge that touches this case will be impacted the same way. Even though she is plaintiff, this is really a class-action type of case in which the entire judiciary is affected.

Next in the dock, Justice Lehner wanted to know the ramifications of the Governor threatening a veto of pay raise legislation if the legislature didn't also vote for campaign finance reform. He was looking for a moral response devoid of legalisms, but alas, lawyers being lawyers, defense counsel couldn't say, "Of course that's wrong! But the remedy is at the ballot box," which any sane person would have said because it's pretty obvious.

Finally, now 45 minutes into argument, the real issues started to get touched upon, as Justice Lehner asked, "Why are we here?" The fundamental problem is that the legislature and executive branches are linking the judicial pay raise to other issues, principally a legislative pay raise. But Judge Lehner, in another case (Larabee v. Governor), had already rules that unconstitutional. Defense counsel wanted him to reverse himself, which the judge obviously couldn't do since that other case was not before the court at the moment. But it didn't stop them from trying.

It's at this point, when they start to get to the merits that Chief Judge Kaye's counsel, Bernard Nussbaum of Wachtell Lipton, starts to get particularly impassioned and animated, his arms flailing this way and that while he speaks, to the point I thought he was going to inadvertently smack one of the other lawyers. (Since his legal credits include representing Bill Clinton, I don't think my characterization will hurt him any.) Watching what lawyers do with their hands and arms while in the middle of a high-pressure argument can be fun. One lawyer kept his nervously twitching hands locked behind him while he spoke (and spoke well, I might add) while another kept them folded calmly over his belly. OK, I'm digressing, back to the action...

Nussbaum goes on to argue about discrimination of the judiciary, which is the heart and soul of his case. Judge Lehner suggests that if he wins on just one of his issues, that will be enough, but Nussbaum wisely asserts he wants all issues decided in case the Appellate Division or Court of Appeals (chief Judge Kaye, presiding) should toss out the one he wins on.

Then it was on into politics and Albany's legendary "three men in a room" that basically decide everything that happens in our dysfunctional capital. One of those three men, the judge notes, is changing as we argue (Joe Bruno, Senate Majority Leader, will resign his office tomorrow.) Everyone, Nussbaum argues, is up to their ears in the linkage issue. And on they go to discuss bills that get authored with no intent of passage, and the linkage of judicial salaries to legislative one, and the judiciary being held hostage and not being independent.

From there the court goes on to arguments of the speech and debate clause of the constitution, and whether that immunizes the comments about linkage that were made. The defendants say these comments can't be the basis of a lawsuit. Plaintiffs assert that this is a constitutional issue of protecting the weakest branch of government.

Folks, that was just the first hour and 15 minutes. Nussbaum showed up with a few large bags of giant charts and an easel for display (Our easels aren't good enough, Justice Lehner wanted to know?)

One last thought as I left the courtroom. A spectacular amount of legal work is going into the suit by Wachtell Lipton on behalf of the Chief Judge in her representative capacity. That work is being done for free. It seems to me that this represents a very substantial gift to the judiciary (See: Wachtell and Judicial Ethical Violations in New York's Judicial Pay Raise Suit?) While I support the judicial pay raises -- they are badly needed -- the idea that a private firm would make such a huge gift leaves me scratching my head in wonder both that the gift was made and that the gift was accepted. The value of the services must easily exceed a million dollars at Wachtell's billing rate. Every judge in the state is represented by Wachtell. How, I wonder, can any judge sit fairly on a Wachtell case if this firm is also representing the judge?

More:

• Price Fight -- Live! (Jason Boog @ Judicial Reports);
• Of Silver and Judges (Elizabeth Benjamin @ NY Daily News)
• Paterson, Lawmakers Argue Against Raising Judges Pay (Daniel Wise @ New York Law Journal)
  

Labels: Judiciary

It's that time of year again. Time for the bar exam. And so it is only fair I think, as recent grads work and sweat and cram and get all anxious, to remind them of some things.

First, that's how you will probably feel when you try a case.

Second, the New York bar exam has had a couple of legendary screw-ups, and I'm here to remind you during your moments of insecurity, nausea and panic about them. I'd like to think it's part of my job, but really, I'm just having fun at your expense.

There was the 1985 exam. The one where the multi-state exam results were lost or stolen. That was for those that took the test inside one of the New York Passenger Ship Terminals on the west side of Manhattan. I know first hand about that test: Your Bar Exam Answer Sheet is Gone -- Now What? Hundreds had to re-take the exam. But not me. Click the link and see why.

Lest you think that was the only time our trusty bar examiners fouled up, fear not, they managed to do it again last year by losing some essay answers that were typed on laptops, due to a software crash.

But last year's story seemed to go on, and on. To fix the problem of missing answers, the bar examiners decided to do a grade approximation. Trust us, they said, to get it right this second time. Trusting them might not have been such a good idea though, as a question arose due to an anonymous comment on this blog as to how, exactly, they did that approximation. It included giving a grade of 3/10 for an essay that was never written because the guy ran out of time.

And then the story got weirder still, after I called up and found out that an unknown appeals process existed at the New York State Board of Law Examiners. Lawyers creating a secret appeals process? Just how weird is that? An anonymous test-taker blogged his experience here, in the rest of that entry that followed my call.

But wait, there's more! The guy who took the exam, the one who was told he had failed and then blogged his experience here, then went public under his real name, Eric Zeni. He successfully appealed, after after being told there was no appeal process. He had argued his first case and won. Zeni was sworn in as an attorney earlier this year. [Update: And is now practicing law out on Long Island with a small firm.]

Are there lessons to be learned from these stories? Probably. But I'll leave my readers to figure them out.

Labels: Bar Exam

Summer time and the weekends are long, which has left precious little time for blogging. But if I did have time, these are some of the things I would write about:

On a list of the Top Ten Worst Insurance Companies, compiled by the American Association for Justice, the winner is Allstate. And here's an extra anecdote for you: In the trial I just completed, where the plaintiff had a broken hip and pelvis that required 16 weeks of hospitalization and in-house rehab, where liability was determined by summary judgment motion 20 months before trial and interest was accumulating at 9% per annum, Allstate was the insurer for the driver. Despite only having a 100K policy, they didn't even bother to tender it until a pre-trial conference. (Since there was also a leasing company involved as owner, and therefore ample coverage, Allstate was saved from a bad faith action.)

Anne Skove at Court-o-Rama has a post on medical malpractice and a change in standards that is (theoretically) coming to hospitals to cure this little problem:

Nurses don't speak up when doctors screw up. Whether this is due to gender roles, status, tradition (or probably all of the above), one thing is certain: mistakes could be avoided if health care providers felt that they could confront doctors.

The problem will be, when the changes are put into effect, that entrenched interests may not be so interested in changing. See, for example, these posts on How Medical Malpractice Gets Covered Up and the White Coat of Silence.

Ron Miller has a piece on Medical Justice, a company that is apparently fear-mongering its way through the medical community about all those medical malpractice verdicts for frivolous cases. They don't tell the docs that they don't actually exist, of course, since they would be tossed out if they were frivolous. And they certainly don't tell doctors that they already have a defense to frivolous cases, known as the defense lawyer. But then, as Miller points out, this is a for-profit business.

Brooks Schuelke cooks up Personal Injury Law Round-Up #69 to help any vacationing blogger play catch up on recent events in our little neck of the law.

And the West Virginia Business Litigation Blog does its best to celebrate Bastille Day with Blawg Review #168, to cover all other areas of the law.

Labels: Random Notes

This little blog on personal injury law that I started in November 2006 undergoes a change today. I've become an advertising affiliate of American Lawyer Media's (ALM) Law.com Blog Network.

Yes, I see a raised hand out there in the back...

Q: What the hell?
A: Agreed.

Q: No, I mean really, what the hell? Why are you doing this?
A: Well, first because they asked. I'm a sucker for flattery you know.

Q: So if someone asked you to jump off the Brookl--
A: Jumping off bridges has nothing to do with law. ALM, on the other hand, publishes the New York Law Journal (my hometown paper of record), American Lawyer, National Law Journal and a slew of other legal products.

Q: But aren't most ALM products geared toward BigLaw stuff?
A: A healthy percentage. In fact, up until now there weren't any personal injury blogs in their affiliate network of 30 blogs.

Q: So you said yes because you could claim to be the first PI blog in the country to be in their network?
A: I told you I was a sucker for flattery. I've got an ego like everyone else. Weren't you listening?

Q: Listening won't help. This isn't a podcast.
A: Go get your own blog if you want to be snarky.

Q: I'm thinking of starting the Noo Yawk Personal Injury Law Blog to compete with you.
A: OK, you can stay. Just play nice.

Q: I see that ad in the side bar. And also a box with the Law.com news feed. So they get to advertise their stuff on your blog that you slaved over?
A: Well, the ad is new. But I was running their news feed here from the start, just as I do on my web site. I ran it because it's good. Same content now, just in a fancy looking box.

Q: Do they now own you?
A: No. I write what I want. They don't own any part of the blog. This is an advertising affiliation agreement. I create content in the personal injury field that they hopefully like and promote in some way. They expand their reach a tad by (hopefully) reaching my existing readership, and I expand mine by (hopefully) reaching theirs. Maybe they'll stumble on the greatest hits post and think this is worthy enough to add to their RSS feed.

Q: Why your blog?
A: Good question. One theory is that I threw money, booze and a Las Vegas junket their way. Another theory is that my little corner of the web was able to stand out a bit because many other personal injury blogs have a primary focus on self-promotion, and are quite a bit thin in the actual blogging department. If you have a third theory, I'm game to hear it.

Q:How much do you get out of this advertising deal?
A: Not sure. Maybe enough to buy an occasional six pack of Magic Hat. Mostly, I hope to get more readers. If I'm going to write, having readers is kinda nice. We're back to that ego thing.

Q: Last year, in your Better Blogging:12 Tips piece, you said that a blogger shouldn't "uglify" a blog with ads. Are you a hypocrite?
A: I see you're a long time reader.

Q: You didn't answer the question.
A: I see you're a lawyer.

Q: Are you going to answer it?
A: Yes. The vast majority of ads I've seen do, in fact, uglify a blog. And that is because most are those wretched little Google ads that sit in the middle of the blog where the actual content is supposed to be. I don't have a real problem with ads for law books, legal support services, etc., in an appropriate header or sidebar. But those won't bring in readers and, with few exceptions, the money isn't enough to push aside content or links. With ALM, however, I am hopeful that new readers will be brought in, and the ads themselves are directly on point. I figure that if it's good enough for Howard Bashman or Blawg Review, it's good enough for me. So I'm giving it a try.

Q: That's it? More readers?
A: And a bit more. On my first year anniversary I wrote that I wanted to do more original pieces, as opposed to commentary on existing stories. So in addition to more readers, being known as part of the ALM Blog Network might give me a smidgen more legitimacy as a media outlet if I'm looking for original content. It can't hurt.

Q: What next?
A: Regarding what?

Q: The blog.
A: Beats me. Hopefully a good personal injury story will drop into my lap and I'll get to write about it.

Q: You have a story in mind?
A: No, but if you do, would you please email it to: blog [at] TurkewitzLaw.com

Q: I like the way you did that.
A: Did what?

Q: Ended this rambling fake interview with a request for tips.
A: Hey, I'm in the big leagues now. I need stories. Guest blogs are welcome too.

Labels: Blogging

The contrast between these two screw-ups couldn't be more striking. In one hospital, a patient dies in an emergency room and the staff tries to cover up the depth of their negligence by doctoring her medical records. And in the other, wrong site surgery results in an apology to the patient, an email to the entire staff and a blog posting to the world.

I covered the first case last week, when a woman was videotaped in the emergency room of Kings County Hospital collapsing and dying while being ignored for an hour. Half an hour after she collapsed, and while the security camera recorded her on the ground, some genius wrote in her medical chart that she was "awake, up and about" and had just used the restroom.

And now we have the polar opposite, courtesy of Paul Levy, the President and CEO of Beth Israel Deaconess Medical Center in Boston at his blog Running A Hospital. Mr. Levy lays out the circumstances of what happened. While he leaves out the details that might identify the patient, he spares nothing in the analysis of how the hospital reacted.

The hospital sent out a detailed memo to the staff last Thursday about the incident, which was subsequently picked up by White Coat Notes, the Boston Globe's medical blog. The memo details how the surgeon was "distracted by thoughts of how best to approach the case" on a hectic day and operated on the wrong side of the body.

The original memo was blunt:

This week at BIDMC, a patient was harmed when something happened that never should happen: A procedure was performed on the wrong body part. With the support of all our Chiefs of service, we are sharing this information with the whole organization because there are lessons here for all of us.

As we all know, the cover-up is almost always worse than the initial incident. Any student of political scandals knows that. But the same holds true in the field of medical malpractice. The notes in the chart that cover-up the malpractice tend to infuriate juries. A forthcoming acknowledgement of a mistake and an apology would not be treated the same way.

So what does Mr. Levy want to do now? Check this out:

While we explore lots of ideas, one already in my mind and that of this Board member would be to make a video with the actual people -- doctors, nurses, surgical techs -- who were in the OR at the time to explain what they saw and felt and what they learned from the experience. While they might be in too much distress to do this right now, they might agree over time, and their doing so would create a powerful message at every orientation, at nurses and departmental meetings, and conferences. Of course, if the patient would agree to participate, that would lend even more power to the story.

This type of conduct is simply unheard of from my view in the medical malpractice world. I've taken testimony from hundreds of doctors. Exactly one has acknowledged that he made a mistake. Mr. Levy seems hell bent here to destroy the White Coat of Silence that exists widely through the medical community. (See also: How Medical Malpractice Gets Covered Up)

If more hospitals and doctors acknowledged mistakes and sought to learn from them -- as Beth Israel Deaconess is doing -- it would probably go a long way to putting medical malpractice attorneys out of business. And the reason is really quite simple, and human. Worse than being injured by negligence is adding insult to the injury by covering it up. It is anger that most often causes potential litigants to call medical malpractice attorneys. And that is why many medical practitioners are being encouraged to say they are sorry when such mistakes occur. (Addendum, see also, Why Patients Call Lawyers)

There are some folks that will never learn and will continue to cover up. But there are some folks, like Paul Levy, that seemed determined to make that type of conduct a thing of the past.

See also:

• Surgeon operates on patient's wrong side (Medical Quack)
• Beth Israel medical teams to take more time outs (Universal Hub)

Updated with more links (and a ton of comments at the original source):

• The Right Lessons From Wrong-Site Surgery (A Healthy Blog)
• A Lesson From Tom (Follow-up to the original post at Running a Hospital)
  

Labels: Hospital Malpractice

The vote was taken by the Continental Congress on July 2, 1776, as the British fleet approached New York. True, we celebrate on July 4th, after the Declaration had been printed and adopted, but today is the anniversary of the vote when the lives, fortunes and honors of the declarants was put at risk.

Fortunately, you can read a live-blog of the event (perhaps in part to a flux capacitor on a De Lorean inspired time machine).

John Adams writes to his wife:

"The Second Day of July 1776 will be the most memorable Epocha, in the History of America. . . . It ought to be solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more."

It's a good day to read the text of our Declaration. And to inspire you to read the rest -- though I doubt such inspiration is actually needed and I'm doing this just because I want to -- I'll quote the first part...

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. -- Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world....

It is worth noting that in the long bill of particulars of injuries and usurpations directed toward the colonists, is this:

For depriving us in many cases, of the benefit of Trial by Jury:

The story doesn't get much more appalling than this. Esmin Green -- a troubled 49 year-old woman who is waiting in the psychiatric emergency room of Kings County Hospital for a bed -- collapses onto the floor. After she had been waiting almost 24 hours. And then is ignored for an hour. And then dies.

And it's caught on video:



There is little doubt in my mind that if this incident were not caught on film that the medical records would not only detail an altogether different story, but that those records would be hard to challenge. According to this story at the Huffington Post regarding the medical records, however, the records can be challenged. And that is because of the video, which shows she collapsed at 5:32 a.m. Notwithstanding that:

One notation said that at 6 a.m., she was "awake, up and about" and had just used the restroom. Another said that at 6:20 a.m., she was sitting quietly in the waiting room, and had a normal blood pressure. During both of those times, Green was either in her death throes or already dead.

The most disturbing part of this is that it is reminiscent of the infamous Kitty Genovese murder. Genovese was a 29 year-old New York woman who was repeatedly stabbed over a prolonged period of time, and while her screams were heard by many, there were no prompt reports to the police. The murder was the inspiration for the 911 emergency telephone system.

But here, we have actual employees inside an emergency room that fail to act. The most disturbing image, to me, is the security guard that rolls up in a chair and then rolls away. He couldn't even be bothered to stand up to see what was going on.

Before this death, the hospital had already been sued after an investigation at the hospital "showed that Kings County psychiatric facilities are overcrowded and often dangerously unsanitary and that patients -- including children and the physically disabled -- are routinely ignored and abused" according to ABC News.

The fact that the attorneys here were able to get this videotape is remarkable. The incident happened, according to the story, on June 19th. That means that it was not procured through any new litigation. Because the quickest way to get pre-suit discovery in New York is through a separate action before a lawsuit is started to preserve evidence, brought on by Order to Show Cause. The judge would then order evidence preserved through a Temporary Restraining Order and then order a hearing. That takes time. Especially since there appear to be other patients in the video clip, and that brings on issues of privacy and HIPAA.

So the tape either came from prosecutors or health department investigators, or was possibly turned over as part of the prior litigation. But my guess is that it was probably leaked by a very angry employee of the hospital or security staff.

Kings County Hospital, by the way, is city-owned.

Also at:

• The Medical Quack;
• Kings County Hospital Lets Woman with Mental Illness Die (PsychCentral)
  

Labels: Hospital Malpractice

Brooks Schuelke has Personal Injury Law Round-Up #68 (in case you're wondering, I did the first 36, which is to say, Brooks will blow past me next month if he doesn't burn out);

Blawg Review #166 is up at GeekLawyer, and if you're offended by the content, you're probably in good company, since he appears to be an equal opportunity offender. Let's just say this is one time I was pleased to be ignored. According to Colin Samuels, "Those of you who are just discovering him now will . . . not be bored. Scandalized perhaps, but not bored." Ed. at Blawg Review does a supplement.

Jason Boog at Judicial Reports on the deep psychological stress some judges undergo;

It appears that the Mississippi Supreme Court is bending over backwards to favor corporations. Kia Franklin at TortDeform has the story. Interestingly, the only response so far is