Archive for the ‘Evidence’ Category

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked?  What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it.  I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

InfinitesmalNow I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackle in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:

Cite?

While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing  false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:

DoesntSayThat

 

Two to 45

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’v become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness.  Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?

———

Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay WolmanLegal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)

 

 

Spoliation of Evidence, in the News

OK, which wise guy messed with the evidence?

Two cases in two different New York courts hit the same topic this past week: The evidence had been lost or destroyed. But if you thought that a couple hundred years of jurisprudence would have long resolved and standardized how these things are handled, you would be mistaken.

Case 1 takes place in federal court, where a musician used YouTube to offer up a $1M reward for his lost/stolen laptop. The artist, Ryan Leslie, claimed it had valuable intellectual property on it, that being unreleased songs, and he was desperate for its return. And he got the laptop back.

But despite getting it back, Leslie didn’t want to pay, claiming that the hard drive was damaged and the intellectual property that was on it couldn’t be accessed.

But he had an even bigger problem then wrestling with his attempt to renege on his promise. And that problem was that he gave the laptop to the manufacturer to obtain the information, and the manufacturer then wiped the hard drive clean. Oops.  Was the information actually there or not?

This is the crux of the legal argument, as quoted from the decision:

A party has an obligation to preserve evidence when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

Leslie was on notice that the information on the hard drive may be relevant to future litigation and, as a result, had an obligation to preserve that information.

So what is the standard in federal court for a sanction against the party that loses or destroys the evidence? Is it intentional destruction of evidence? Bad faith? Mere negligence? In the Second Circuit, the answer is, “it depends.” Decisions are made on a case by case basis according to the Second Circuit. And in this case, trial judge Judge Harold Baer found that because “the hard drive was destroyed when litigation was all but certain, I find that Leslie and his team were at least negligent in their handling of the hard drive.”

While the judge was asked by the plaintiff to grant summary judgment — an automatic win without a trial — he opted instead to give an adverse inference to the jury. They would be told, as a matter of law, that Leslie had possession of the hard drive and could assume litigation would follow based on the facts. The jury could, in other words, assume the worst.

And with that, the jury came back a few days ago with a $1M verdict.

Switch now to case 2, this time in state court. In Staten Island, a medical malpractice case is being waged over administration of the drug Plavix. The problem? Staten Island University Hospital has lost (or deep-sixed?) the critical “Medication Discharge Reconciliation Form” that would contain the information that was needed. As per Judge Joseph Maltese, sitting in the trial court:

[O]ut of the entire medical record concerning the plaintiff, the June 21, 2011 “Medication Discharge Reconciliation Form” is missing.

Oops, again. But while the standard may be loose in federal court as to what to do in this situation (the discretionary case-by-case basis described above) it is not in state court. Judge Maltese pointed out that the hospital knocked itself out with a single punch:

“It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.” Here, the crux of the plaintiff’s case is the defendant hospital’s failure to prescribe the proper medication upon her release on June 21, 2011. While this court is sympathetic to the defendant hospital’s contention that it has diligently searched for the record, it does not change the fact that after nearly a year of searching it has not been found. Staten Island University Hospital has been negligent in maintaining the plaintiff’s file, which it had a duty to maintain for six years from the date of discharge.

For the non-lawyers in the crowd, striking a pleading means an automatic win. It’s what the plaintiff wanted in the laptop case, but the judge declined to give opting for a lesser sanction.

Two different cases on spoliation, one state, one federal. The results are the same (plaintiff wins).  But the way each one got there is different (one case given to the jury with a negative inference and the other taken out of the jury’s hands and decided as a matter of law).

Hey, I found it interesting. Your mileage may vary.

Can a sworn medical opinion that relies on unsworn MRI reports constitute competent evidence? (Is that kosher?)

Today’s issue starts out straightforward with a malpractice case. But pay attention, because the real application of this decision is in New York’s No-Fault law and litigation over “serious injuries” in car accidents.

Plaintiff brought a malpractice case against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants move to dismiss. In response, plaintiff puts in an affidavit from a chiropractor. Since it’s an affidavit, it’s sworn. But the chiropractor relies on unsworn MRI reports. Is that OK?

Yes, says the Appellate Division (Third Department) in a decision released yesterday, Caulkins v Vicinanzo. While it is true that “uncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion, in this case the affidavit is a sworn document. And the appellate court, in holding that the affidavit could rely on unsworn documents, plucked a footnote from the Court of Appeals decision in Pommells v. Perez, which said:

“Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence.”

Now in theory, the case favors neither plaintiffs or defendants, since either can make a motion for summary judgment.

But that’s only theory. It’s real application comes not in the world of medical malpractice, where summary judgment motions are relatively rare, but in the realm of car accidents and defense allegations that the “serious injury” threshold under New York’s miserable No-Fault law was not met.

The reality is that some offices are fighting these types of summary judgment motions every day. (And the courts hate them.) And many of those cases have small insurance policies (25K) that make it essential for personal injury lawyers to litigate with great efficiency. Defense lawyers, of course, being funded by the multi-billion dollar insurance companies, don’t have that problem. If the plaintiffs need additional affidavits from radiological experts to corroborate what the initial radiologist said, it is an additional expense.

So you can bet that this case will be cited in the months and years to come for those that fight those battles. Ultimately, it’s a win for car wreck victims as it helps to streamline an already miserable part of New York’s auto accident practice.

Efficiency is a good thing when you work on contingency. And it’s good for the victims too, who often have trouble finding counsel for cases that have limited upside due to small insurance policies.