May 14th, 2019

Dear Media: Can you stop using the word “accident”?

I think I need a “Leaving Accident” sign.

It’s a funny place to find a story on personal injury law — inside the pages of Outside Magazine. But when a good point is made, it makes no difference where that point is found.

Outside gets involved because the article is called: How We Talk About Drivers Hitting Cyclists. It seems that bicycle riders aren’t too keen on getting hit by vehicles that are much bigger than they are, and getting squashed or worse. And so, an outdoors magazine hits a junction with personal injury law.

Their story starts with a triathlete out for a spin getting bounced off the grill of a Ford F-150 and soaring through the air to an unhappy landing that was, thankfully, survived, albeit with significant injuries.

But the story isn’t really about that one rider, or the many other bicycle riders that have been hit and injured or killed by cars and trucks.

The story is about how the media writes about those crashes, with the subtle (mis)use of language leading to a shifting of blame, or a minimizing of the significance on how the crash took place:

News stories often play a key role in shaping public understanding of traffic safety. And when news stories victim-blame or fail to convey the larger context in which these crashes take place, they do deep injustice to the victims and the conversation about road safety in general.

In the past, I’ve noted that the word “accident” is a poor language choice to describe a motor vehicle collision or other mishap, as that word is the same one used for a deer that bolts into the road. Why use the same word for an unavoidable crash as you would for one that is avoidable with reasonable care?

Even the NYC Police Department noted this problem in 2013 when it changed its Accident Investigation Squad to the Collision Investigation Squad.

Sometimes, of course, this misuse of language is intentional. Such was the case when Senator Rand Paul decided to excuse the negligence of BP during the Deep Water Horizon blowout in 2010 that polluted the Gulf of Mexico:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,”

Well, yeah. It wasn’t Mother Nature at fault there. It was humans. And the question was who to hold accountable for the disaster. That assumes, of course, that Senator Paul actually cared about accountability.

OK, I digressed. Let’s return to the unintentional biases of language that gets used to whitewash responsibility.

Outside writer Joe Lindsey breaks it down further that I simplistically had on prior occasions, with these points that come from two studies on the use of language in media:

Two new studies on inaccuracy and subtle bias in mainstream-media reporting about driver-cyclist crashes highlight the extent of these issues. What they show make clear just how deeply rooted the problem is—and how difficult it will be to fix.

Those studies fixed on three issues related to language: First, words that indicated whether the cyclist or the driver was assigned blame for the crash; Second, the use of passive, clinical language that reduced the human role; and Third, whether the stories framed the crash as a one-off episode or put in a larger context of road safety.

In reviewing 200 serious crashes, researchers found that in 80% of them, news writers described the main actor in the crash as a vehicle —- not as a person:

“Sometimes the story would say that the person was hit by a car, which is passive,” says Tara Goddard, an assistant professor of urban planning at Texas A&M, who was involved in the study. This language distances the driver’s actions from the crash. 

Cars, of course, don’t generally get up out of the driveway on their own to run someone down. A driver needs to be involved.

And then there’s the use of the word “Accident.” The other of the two studies found that in 189 news reports of cyclist fatalities in crashes in a Florida county over a ten-year period, that “accident” appeared in 48 of them; another 12 used the word “incident.” In 55 of the stories, no mention was made of a human driver.

Of course, except for those cases where nature has intervened (the deer bolting into the road example) virtually every crash involves human error of some kind. But the stories, oft times, simply don’t reflect that.

And third, there was the victim blaming. While this may be an age-old staple of both criminal and civil defense trial lawyers, the objective media writer doesn’t stand in the shoes of an advocate.

Why, for example, would a news writer mention that a cyclist who was hit by a truck moving 60 mph note that the rider wasn’t wearing a helmet? It wouldn’t matter, so why skew the reader toward a narrative that is utterly irrelevant?

Presenting factoids, the Outside piece argues, takes the light off of significant safety factors (for example, road design) to make the crash seem like a one-off instead of part of a larger community safety problem.

This factoid presentation is then compounded, sometimes, by bias, or simple sloppiness of an investigator who provides initial thoughts to the press — thoughts that are often wrong, as the Gothamist has pointed out.

The desperate need for speed in reporting these days, with news cycles that have evaporated, means that initial information (often from anonymous police sources) is often both wrong and repeated.

But the limitations and problems of the need to file stories quickly are, by now, well appreciated by the press. And it means that they need to be doubly careful in that choice of words: Careful that crashes are not downgraded to mere accidents; that drivers/riders are held to blame instead of vehicles; that collisions are seen within the broader context of community safety; and that victims are not chastised as blameworthy based solely on irrelevant factoids.


April 30th, 2019

Covering Up the “Accident”: Cops and Pols Edition

Mayor de Blasio emerges from a car. Source: Daily News

I knew I’d seen this act before. A routine car collision gets covered up. Why? Because a politician was in the car.

When I first wrote about it 10 years ago it was Jeanine Pirro in the back seat with her then-husband Al Pirro. Their vehicle, owned by Al, sideswiped a motorcycle and the rider was injured.

After seeing who was in the car, the original accident report (more properly called a collision report) was deep-sixed and the Pirro vehicle magically disappeared from the second accident report. The cops called the Harley rider a fraud and listed it as a one-vehicle accident.

Except that someone already had a copy of that first report, and the cops were caught covering up the crash.

Fast forward to this week, and it is Mayor de Blasio in the car with his wife that is involved in a collision, and the story hits the Daily News — four years after it happened.

Apparently, a car veered into his lane and hit the mayoral SUV. I say apparently because that was the lede in the story:

On a Saturday morning in August 2015, Mayor de Blasio was in the back seat of a black NYPD Chevy Tahoe bound for an event in Harlem when a driver changing lanes slammed into his ride.No one was hurt. No big deal, right?

Except that the police decided to cover it up. Instinct perhaps?

Back to the story:

No one was hurt, but the commanding officer of the mayor’s executive protection unit, Howard Redmond, was furious. Text messages obtained by the Daily News show he immediately ordered the incident be covered up to protect de Blasio’s image.

“As per CO [the commanding officer] no one is to know about this,” Sgt. Jerry Ioveno texted members of the unit, referring to Redmond. “Not even the other teams.”

“No one is to know,” he repeated.

Why this would reflect badly on the Mayor is beyond me, even if the Mayor’s driver was at fault. He, after all, was a passenger.

But the NYPD was worried about optics. If there are bad optics, then yeah, maybe it does reflect badly. On the NYPD. And its driver. If the NYPD driver was actually the one at fault.

But the story just gets weirder:

Redmond allegedly ordered that the cop behind the wheel, Detective Edgar Robles, be officially listed as the driver of a backup SUV, text messages show. That way, the unit could more plausibly claim the mayor wasn’t in the vehicle involved in the collision, a source close to the executive protection unit said.

Then, buried down further in the article, it hits: It was the NYPD at fault. Not the other driver:

NYPD spokesman Phil Walzak told The News that the NYPD investigated the accident involving de Blasio’s SUV “and determined the NYPD was at fault. Far from a coverup, this in fact shows the exact opposite – the NYPD took this incident seriously.”

The text messages are almost comical in their ham-handed way of covering up the crash — successfully for years. Some of the texts:

“Is Eagle p—-d?” Ioveno asked in a text message, using de Blasio’s code name.
“Not really,” a detective wrote.

“Redmond hell-bent that this doesn’t get out to anyone, we need to kill the story,” executive protection unit cop Jorge Bravo wrote.

“He went off on OPTICS of this detail – the little things (double-parking and crosswalk s–t),” Bravo added…

“No one is to know; also, Eagle was not in the limo … are we clear guys please?” Ioveno said, using the code word limo for the NYPD Chevy Tahoe.

And then came a second crash, this one involving city First Lady Chirlane McCray, multiple vehicles and disappearing witnesses. And in this crash, someone was hurt.

The NYPD went all in, it seems, on trying to cover this one up also. As per one of the attorneys involved:

“The way the police report is written, you can kind of tell they’re covering something up,” Grossman said. “If you see the diagram — it doesn’t make sense. … They seemed to whisk everybody away without anybody saying anything.”

And so it goes. Negligence happens and those who are supposed to document what happens decide to come up with “alternative facts” and hide the witnesses so that innocent victims are frustrated in their ability to find out what actually happened.

The more the world changes, the more it stays the same. Except that sometimes emails and texts help with the Big Reveal.


April 8th, 2019

Well, That Wasn’t Very Persuasive

Lawyers are in the persuasion business. Whether we are trial lawyers standing before juries, appellate lawyers, commercial lawyers negotiating a deal, or pretty much anything else.

Advocating is kinda what we do. Marshal the facts and apply it to the law and say, “See? This is why you should do…” Finding the exact right facts and the exact right law — and, of course, the exact right audience — is part of the secret sauce of success.

And then there are persuasion failures. Ad hominem attacks, for example, merely expose a person as bereft of competent argument. Purely emotional arguments by the unduly passionate are, of course, a classic. So is shooting the messenger. And only fools would deliberately try to piss off the people or groups they were trying to persuade, or make the arguments in the wrong place.

These dos/don’ts are second nature for most of us, and it leaves many lawyers just shaking their heads when we hear people bringing on the stupid as they violate what we see as simple rules, be it at a cocktail conversation or on Twitter.

With that in mind, I bring to you a colossal failure in persuasive argument that I witnessed while trying to get to my office Friday in Manhattan. It was a demonstration where roughly 100 college students thought it would be a keen idea to stop all traffic on Third Avenue in Manhattan between 44th and 45th streets, stretching hand to hand both across sidewalks and street to obstruct pedestrians and cars.

For those unfamiliar with the area, this is a broad and heavily travelled avenue running uptown just after traffic empties out of the Queens-Midtown Tunnel into the heart of midtown Manhattan. So a blockage just upstream of this point will seriously back traffic up, both on the avenue and the side streets, and quickly affect many thousands of people.

Which tends to piss people off. Making matters worse was that no one in the protesting group, calling itself IfNotNow, thought to even hand out literature to folks who were walking by, or stuck in their cars, so they would know what the hell the protestors claimed to be so pissed about.

But they did wear shirts and hold signs with a stylized Star of David on them and slogans that said something about Birthright Israel.

So the only thing folks would know was that a bunch of Jews were obstructing their daily commute. That is the only thing they would know.

Now the vast majority of Jews know what Birthright Israel is — a free 10-day trip to Israel for Jews between 18-26, designed to strengthen Jewish identity. It’s a 501(c)(3) charitable organization. Over 500,000 young Jews have taken this free trip. And it’s deliberately apolitical.

But most non-Jews haven’t a clue as what this charitable foundation is. And those stuck in traffic who could see what was going on knew only that a bunch of Jewish students were stopping them from doing what they had come to Manhattan to do.

In other words, the organizers had not only violated one of the first rules of persuasion but may have added to the climate of anti-semitism by pissing all over people that just wanted to get to work. (They were damn lucky, I might add, for the benevolence of New Yorkers, for anyone in a hurry that was in the front line of cars that morning could have just let their car slowly roll toward the arms outstretched across the avenue and slowly pushed them away — a recipe for disaster since the cops hadn’t arrived.)

Pedestrians, to get to where they were going, were forced to take a long walk around by going over to Second Avenue or Lexington, or as some did, wrench apart the clasped hands of youth and physically push their way through. Which some did. Because New Yorkers.

Their argument, to the extent you can even call it that, and which I could only find out later because they didn’t bother to have any literature for those who might be interested, was that they wanted this massive private charitable organization to focus on the politics of the almost-100-year-old conflict with Palestinians. The protest location was picked because the office of Birthright Israel was located there. In addition to blocking the building entrance, they elected to also tie up the east side of midtown.

Birthright Israel, of course, doesn’t set Israeli policy. It isn’t the government, or even a political party. The protest was very much yelling and screaming at the wrong people.

The NYPD arrested 15 of the protestors for disorderly conduct after repeated warnings to leave.

Birthright Israel, in turn, put out a statement telling the protestors to go shit in a hat and pull it down over their ears:

“We do not respond to threats and demands from political activists leveraging our long-standing good reputation in order to advance their agendas.”

So, in sum, the protestors managed to do the worst thing that they could do — they pissed off non-involved people potentially making anti-semitism worse, and did so while aiming at the wrong target.

And that is how not to persuade people to your issue, whatever your issue might be.


March 28th, 2019

When Should A Lawyer Fight?

A tough case out of New York’s Second Department yesterday shines a light on a tough subject: If lawyers believe they are legally right on an issue, does that mean they should elect to die on that hill?

This one deals with a quirky New York law that forces all potential litigants against a municipality to file a Notice of Claim within 90 days of an incident. In other words, the Legislature demands people run, not walk, to lawyers well before they may know the seriousness of their injuries.

The municipalities then get to take a deposition right away, though we don’t technically call it that since there’s no litigation yet afoot. It’s a 50-h hearing, so-named after General Municipal Law § 50-h, which births it into being, purportedly so that municipalities can investigate with a view toward early settlement, though that rarely happens. Basically, the munis get two bites out of the injured apple, because they get to question a claimant all over again after suit is brought and the injured are now called plaintiffs.

The problem? Few rules truly exist as to the extent of these hearings. And the claimant must go, for the penalty of not allowing oneself to be questioned is kissing your potential lawsuit goodbye.

So in Colon v. Martin, the lawyers represent two claimants, driver and passenger in a car thats rear-ended by a NYC-owned vehicle. Thus, the need for the Notice of Claim, of which the lawyers elected to file one for each client.

But come hearing time — and the hearings are scheduled to follow one after the other — the claimants’ lawyer insists that both clients are allowed in the room while the other testifies. The City, however, refuses to take the testimony unless the other claimant is sequestered outside the room. Eventually, after the lawyers put all their lawyer-talking on the record, the claimants and their counsel leave.

When suit is filed, the now-plaintiffs allege they they appeared and were available to be questioned, that the City refused to take their testimony, and that the hearings were therefore constructively waived.

On motion by the City for summary judgment, the trial court chucks the case into the trash can for failing to abide by the law for giving that 50-h testimony. And on appeal, the Second Department affirms by 3-2. While this means they may appeal this final result as of right to the Court of Appeals, there’s the obvious problem that they could lose.

But they shouldn’t. The Court of Appeals should reverse and reinstate the suit. And that’s for the simple reason that the statute that birthed these hearings gives no clear directive, one way or the other, as to whether a municipality can close the door to the hearing room.

There’s nothing in the statute that says a co-claimant can’t be there, or the press, or anyone else. While the statute gives some guidance as to who can be there, there is no exclusion rule.

The majority claimed that the bare bones statute should be interpreted to allow sequestration due to the “human nature” issue of one person tailoring testimony to that of the other.

The problem with that argument is that the Court is saying what they think the law should be, and not what it actually is.

The 50-h hearings are in derogation of the common law right to bring suit, and the law is clear that when a statute is in derogation of the common law that it must be “strictly construed.” You don’t get to add new parameters because of a poorly drafted statute. And since there’s no sequestration authorized by the statute, the claimants were lawfully correct to stand their ground. Here are the magic words of the statute, which envisions two parts, oral questions and a physical exam:

which examination shall be upon oral questions unless the parties otherwise stipulate and may include a physical examination of the claimant by a duly qualified physician. If the party to be examined desires, he or she is entitled to have such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect….

…In any examination required pursuant to the provisions of this section the claimant shall have the right to be represented by counsel. 

So the statute says who can be there, particularly for the physical exam part, but it doesn’t say who can’t be there, particularly for the oral questions part. Since the statute must be strictly construed, a court can’t simply add a non-existing sequestration part for the oral exam because, perhaps, the poorly drafted statute might imply it for the physical exam part.

Now you may have noticed that I wrote “lawfully correct” above, notwithstanding that they are on the losing side of the fight right now.

This begs the question I asked at the start: Is this a hill to die on?

While I believe the claimants are correct, that doesn’t make it wise to walk out that hearing and potentially face years of unnecessary litigation that might follow, thereby delaying justice for the clients.

While it may be strategically advantageous to have both claimants in the room for some cases, that doesn’t appear to be the case here.

In this matter, the lawyers elected to represent both driver and passenger in a motor vehicle collision. Usually, that’s one big fat no-no, due to the potential conflict of interest if the host driver was even a teensy weensy bit negligent.

Since this is a fairly well known rule of the personal injury bar, and the potential is losing representation of both clients if a court finds a conflict, I will assume for these purposes that the collision was a matter of clear liability and that they two clients were advised of this issue and agreed in writing to the joint representation. (I assume this because otherwise the lawyer has yet more problems.)

But if there was clear liability, then the issues/concerns about having your other client in the room to hear what was said are pretty much moot. Assuming the clients told the lawyer the same thing – Wammo, hit from behind — there shouldn’t really be an issue.

The lawyers were legally right, in my opinion, to take their position, but strategically wrong. Their best case scenario now is that it cost their clients years of litigation and lots of time and money on the appeals. Their worst case is for the clients to walk away empty-handed and, potentially, sue the lawyers for malpractice if the Court of Appeals upholds the Second Department.

In the meantime, the Legislature would do well to clear up the ambiguity that surround these 50-h hearings, and make clear that questioning may not extend beyond that which would occur in an actual deposition. The ambiguity that exists leaves potential litigants at the mercy of unscrupulous examinees who may feel entitled to ask any old questions they want, no matter how much of a fishing expedition they may be, with the claimants being without easy recourse.

Since the time to file suit is just a year and 90 days from the date of the collision, the window of time within which a legal argument can take place in court over the extent of questioning is exceptionally narrow making judicial relief, at times, impossible or impracticable to obtain.


March 19th, 2019

Appellate Court: Notes of “IME” “Watchdog” are Privileged

The fact that I used quotes on two different words/acronyms is, to be fair, a lousy way to start. But this New York appellate decision yesterday is important in any personal injury litigation because it goes to this essential question for plaintiffs’ lawyers: Would you allow your client to have an unrecorded deposition and physical exam with an agent of the defendant?

Regular readers know I’ve written often about medical-legal exams — those exams that defendants are entitled to when claimants place their medical condition at issue in a lawsuit. The courts errantly refer to these as Independent Medical Exams (IME), though they are far from independent. (See: Is the “Independent” Medical Exam Dead?, and Dear Judge Smith — You gotta be kidding me.)

There are a number of frequent flyer doctors that will do 1,000 or more of these per year for insurance companies, with predictable results. They were the source of a series I did in 2013, with many exams lasting little more than a few minutes at best. (See: Premature Evaluations – The Evidence on Quickie Medical-Legal Exams)

And because these exams are anything but independent, and the doctors so heavily dependent on insurance company money, it’s the custom of plaintiffs’ lawyers to send along an observer, a chaperone, a watchdog, of some kind.

The problem of skewed exams became so great that a cottage industry was born with a company, IME Watchdog, being born for the express purpose of sending along an observer to take notes.

As a puppy lawyer I used to attend these with some frequency since I was not going to try the case. If the doctor lied about something obvious — claiming the exam lasted longer than it did, for example, or falsely claiming that the client made some comment about his condition or how a collision occurred — the observer would be able to take the stand in rebuttal and dispute what the doctor claimed happened in that exam room. The person being examined is, after all, quite preoccupied by being probed and tested and can’t sit there and take notes.

With that way-too-long introduction, we turn to the decision of the First Department yesterday in a matter of first impression: Can defense counsel use discovery to gain access to the notes take by the observers’ and take their depositions. Lower courts had mixed answers to that discoverability issue.

But that issue was laid to rest yesterday in a unanimous appellate decision in Markel v. Pure Power Boot Camp. And that answer is emphatically no.

The court first observed that “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination.”

While the “information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges” there is still the qualified or conditional privilege of material prepared for litigation under CPLR 3101(d)(2).

The observer is there as an agent of plaintiff’s counsel in order to assist in the preparation of the case for trial, and that includes cross-examination of the hired guns that insurance companies routinely use.

The only way of circumventing this is by showing a “substantial need” for the discovery and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means.

Except that defendants can’t show that because they have doctors in the rooms taking their own notes.

A final note: The court stressed that, “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.”

The representative, of course, is not hired to be there for the affirmative case, but to be available for rebuttal in case the doctor makes up some cock-and-bull story about what happened or what the doctor claimed that the plaintiff.

This is all the more important since the courts barred people from actually recording the exam, which would have done a helluva lot more for keeping the doctors honest that allowing observers.

And to those judges that may be reading this, please stop using the phrase Independent Medical Exam. You’ve got a legitimate choice between Defense Medical Exam or simply medical-legal exam. And former Chief justice Jonathan Lippmann agrees with me. In Bazakos v. Lewis he wrote in a dissent:

“[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee.