October 21st, 2015

The Kool-Aid Drinking Lawyer

Helene Blank

Helene Blank

Even though Helene Blank has tried cases for both defendants and plaintiffs, and has been doing so since 1979 in roughly 130+ trials, and lectures widely, she is still stunned by what she sees.

She last appeared here in a good rant about bad faith and insurance companies.

She guest blogs today on lawyers that have surrendered their objectivity, and with it their ability to actually assist their clients…


Kool-Aid drinkers to a plaintiff’s lawyer are defendants’ lawyers who, no matter how stark the evidence that the plaintiff is seriously injured, refuses to believe it and does everything they can to make sure your client isn’t properly compensated for their injuries. The insurance company must be protected from really hurt people at all costs.

I always thought the true Kool-Aid drinker was really a mythological beast not any more real than Bigfoot, Yeti or a werewolf. That was until last week.

I ran into a defense lawyer I hadn’t seen since we tried a damages only case of a client of mine who was irreparably and horribly injured from the accident caused by her client. This poor, sad soul developed what is known as RSD or CRPS – which stands for Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome — the people who have the true misfortune of getting this call it CRAPS — ’cause that’s what your life becomes, crap.

This syndrome happens to an unlucky person after an injury, their brain just goes haywire – and the affected limb is in constant unending pain. You become hypersensitive. You can’t be touched, you can barely wear clothes, you can’t use the limb, and it atrophies or wastes away.

This poor soul had even worse misfortune when the CRPS jumped from his left arm to his right leg — a not unknown phenomenon for these poor people.

His life as he knew it was ruined. He couldn’t sleep in a bed, be touched by another human, not his wife, not his children. He had a pain pump inserted into his spine in the hopes of gaining some relief.

He routinely begged his doctor to cut off his arm. If only it were that simple and such a barbaric act would cure him. Too bad, but it wouldn’t.

He was unable to really walk and he couldn’t use the affect arm to do much of anything.

The defense had him examined twice by a wonderfully credentialed doctor from one of the best hospitals in the world – the Hospital for Special Surgery. After each exam, this doctor reported that it was his opinion that my client did indeed suffer from RSD/CRPS.

But they never produced that doctor for the trial.

Instead, they hired for trial what plaintiffs’ lawyers in gentle circles call “a witness for hire” to testify that my client did not suffer from this. A witness who spends her career traveling the country testifying against injured victims who suffer from this. This doctor never once examined my client and completely discounted the defense’s medical exams. But okay –I know that’s what defense lawyers do. It’s their job to try and get the best possible settlement for their client.

I understand that, really I do. I was once one of them. But my encounter with this adversary last week so saddened me that it’s hard to get out of my mind.

After we exchanged niceties, she actually said to me:  your client, he’s out somewhere partying with all that money he got and he has finally taken that bandage off his arm. A “bandage” that he wore constantly to protect himself from human touch which he found excruciating.

I was shocked. Truly, absolutely shocked. This seemingly intelligent woman, who had all the truth in front of her during the trial, really drank the Kool-Aid. She just simply refused to believe that this poor man was so badly hurt.

I answered that she must be kidding. Did she really truly believe he was a fraud?

She actually said yes, and said she regretted not doing surveillance on my client. I told her that so did I, if for no other reason than I could have used the footage against her client because all she would have seen was what she saw in court. A beaten, hurt human being whose life was destroyed.

Her bizarre response to that was this made her feel better. It all made me feel so sad for this lawyer whose humanity was somehow lost along her way. It made me realize why I stopped being a defense lawyer a long time ago. I never was going to lose my humanity for any insurance company.


March 21st, 2014

When a Juror Calls You a Motherf*cker

Sadly, “M.J.”  didn’t want to attach his name to this story in public.  But I assure you it comes from a prominent top notch NY trial attorney, and is very much a first person account of jury selection.


I picked in Nassau a couple of years ago on a trip and fall.  I stood up and asked the panel whether there was anyone who took issue with the case from the outset simply by virtue of the fact that I represented someone in a trip and fall accident where they were claiming injuries.

A pleasant looking 40-ish year old woman raised her hand and said “You motherfucker.”

I started laughing and said “I’m sorry, what?”  “You motherfucker.  I’m so sick and tired of you lawyers suing everyone for x,y,z…”

This went on for about 3-4 minutes and then I asked her to come outside and we saw the clerk.  I told the clerk “This nice lady feels I’m a motherfucker and can’t judge my case fairly.”

The clerk sent her to a murder trial panel.

I went back into the room and asked the panel “Who else here thinks I’m a motherfucker?”  All but five hands went up and I let them all go.

My adversary turned to me and said “Why don’t we let these five jurors go and start fresh?”  I said “no, these five people don’t think I’m a motherfucker – I’m keeping them,” to which my adversary responded “You motherfucker.”

Update: There were multiple reasons I put up this war-story post, and here they are.


February 13th, 2014

Let it snow, let it snow, oh crap…

Michael JaffeEveryone gets excited for the first snow storm of the year. After a few of them, however….

Mike Jaffe — a past president of the New York State Trial Lawyers Association — appears to have had enough. Today he guest blogs on the call he received this morning from his kids’ school:


5:30 a.m. – house phone, cell phone, other cell phone – please be advised today, Thursday, February 13th, all Syosset schools will be closed. Please be further advised we’ve decided not to reopen until winter is over – what’s the point? When your phone next rings at 5:30 a.m. you can assume schools have reopened and you can wake your children.

For now, one of you should stay home with the kids while the other shovels while snow continues to come down so you can get your car out onto the unplowed road in front of your house and hope for the best getting to work in whatever tortured way you’re going – this includes a two mile per hour drive in bumper to bumper traffic or a slog through the LIRR parking lot to a nasty salt stained train car packed with miserable people who would rather be anywhere but here as long as anywhere but here is outside the polar vortex you recently learned about.

For today’s cruel joke it will snow while you travel and then turn to rain that travels sideways so your umbrella will be pointless (if you have goggles you might consider wearing them – they go well with a suit and tie and overcoat), that rain will then freeze on the ground so there will be a nice layer of impossible-to-clear ice on which half a foot of snow will fall later this evening for your commute home in either bumper to bumper traffic or among the beaten down, miserable, sloggers on the railroad who will by then all have the look of prisoners released from prison only to learn it was a mistake and they must come back.

We do note that it is supposed to warm up early next week – while you might think that would allow us to open schools, unfortunately our buses all have flats due to the Grand Canyon-like potholes which have opened up on every surface where tires would normally drive so we are unable to pick your children up and bring them home.

We would ask you to drop off and pick up but our drivers have noticed many of your cars on cinder blocks in your driveways – apparently having encountered the same canyons our drivers have encountered. On third thought, screw all of this, tell your children to walk to school like we did when we were kids. Who do they think they are? Little coddled brats. School’s open.


February 3rd, 2014

Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!)


An old baseball of mine, that I had stitched back together to keep the leather on.

I found an old baseball of mine a few years ago. The white stitches that replaced the red originals were still in it from my childhood repair work. Throwing grounders in the street tended to chew things up.

We didn’t have megastores 40 years ago where you could buy them cheaply by the dozen. A baseball was precious. This one now sits on my desk in one of those plexiglass cases usually reserved for famously autographed balls.

While the calendar claims it’s winter, and Super Bowl conversation buzzing about, appellate lawyer Jay Breakstone sees spring. Pitchers and catchers are reporting to spring training next week, and the SCOTUS fantasy baseball league is getting ready to draft. He guest-blogged baseball a few years ago, and now returns.

Who says lawyers can’t write like poets?


Everyone in my neighborhood knows that I am the lunatic who walks down his driveway every morning in his bathrobe to get the newspaper.  It matters not whether there’s snow on the ground or it’s raining cats and dogs.  Going out like that in the morning is my way of thumbing my nose at the seasons.

It says that I am alive and have not succumbed to winter’s cold.  It shows that I believe that the sun will come up tomorrow, that there’s a bright golden haze on the meadow somewhere and that baseball will soon be here.

It’s not so much that baseball starts in the spring that makes it so life-affirming, but that baseball starts before spring that is.  Baseball assumes, when pitchers and catchers report in mid-February, that the snow on the ground or the chill in the air is just a temporary affliction that time will heal.

The fact that I walk down the driveway every winter morning in my bathrobe to pick up my newspaper, encased in a plastic bag to protect it from the snow and the ice, means nothing to baseball.  Baseball knows that somewhere, spring awaits.  It knows it before the crocuses stick their necks out of my flower beds and it knows it before that first morning that I can go down my driveway barefoot without freezing my toes off.

Baseball is eternal; a child’s game played by men as if they were boys.  There is no time clock in baseball; it is only played in one season – Baseball Season – and games end whenever they end, or when someone’s mother calls them home for dinner.

There is no death in baseball; fathers are fathers and sons are sons and they remain that way forever.  There is nothing outside of baseball; it has it’s own rules and traditions, none of which makes sense in the real world, because baseball doesn’t live there.

Finally, there are no green vegetables in baseball, only Cracker Jacks and peanuts in the shell that you get to throw on the floor and no one yells at you.


Jay Breakstone, lawyer and wordsmith.

No matter what happens – – no matter what Congress does or doesn’t do, no matter if global warming has us frying or the polar vortex has us freezing, no matter which Kardashian suffers a urinary tract infection or if Jimmy Fallon succeeds or fails – – no matter what, on March 31st the Mets will open their season against the Washington Nationals.  A day game.  A place for men to play hookie, once more, and for the world to be re-born, once again.

The magic words?  Batter up!

(Jay Breakstone  is the author of MondayMonday, his weekly ruminations on NY appellate practice and life.)


December 18th, 2013

The Guest Blogging Dodge

Anyone that’s blogged for more than 10 minutes has seen the flood of so-callled writers begging for the opportunity to create “content” for your blog. If, please, please, please, you would only be so grateful as to give them some valuable link juice. As you might guess, it’s a scam. There is never anything in the email that even suggests knowledge about the blogs being pitched.

I hate them. Greenfield hates them. Bennett hates them. Popehat hates them. They are hated by mommy bloggers,  tech writers, and media folkEven the British have a hard time keeping a stiff upper lip about this crap.

But then. I do read the pitches, or at least the first line or two to see if, just maybe, the writer didn’t send me spam but actually had some knowledge about my blog and had a point of  view to share.

And so it was with Max Herman who guest blogged here yesterday. The request to write came out of the blue, but it actually dealt with a current case before our top court, about an issue that reflects upon personal injury law, was an issue that he was closely following, and he had notes on oral argument that had already taken place.

When Max contacted me, he already had a two page explanation of what he wanted to write, along with briefs of the case he wanted to write about.

Max didn’t want to write about any old thing, he wanted to write about this thing that he had been following and that he found interesting. Also, he could actually write in an engaging manner. And he never asked for a link. I had to ask him for his bio link when I published.

And so, while it’s tempting to my fellow bloggers to simply delete the emails when they come in, the truth is that there are people out there who actually have something to say and are looking for the right forum to say it.  Writers gotta write, and once written, would like to publish.

On first blush it might seem that it is’t even worth it trying to separate the wheat from the chafe, but the chafe is so easy to see it makes it easier for the Max’s of the world/

But to the aspiring writer/pundit looking for a platform, please know this about contacting a blogger about a guest post: You had better have a good idea (and an outline) of what you want to say before  you contact us. And that idea should be one that is about a very current issue. Be a Max. No one is interested in generic pablum.

You can pitch us, but you have to pitch us well. Even those sites that don’t accept guest blogs are unlikely to be upset if the pitch is genuine. But the alternative, if it isn’t genuine, can be ugly.