January 19th, 2017

But For Video (Pedestrian Rundown Version)

The moment before this woman was run down while in the cross walk

The video is graphic. Too graphic. A woman clearly in the cross walk gets hit by a mini school bus.

The story from this Brooklyn accident at Nostrand Ave. and Ave. M, comes courtesy of the Daily News.

Why write about it? Two reasons.

First, because the initial police report claimed the woman was out of the cross walk. Buried deep in the article:

The initial police report said the victim was “not in an intersection” but the video shows her clearly walking in the crosswalk. Police could not immediately account for the discrepancy.

How and why could that “error” happen?

The victim, Ayse Ayaz, suffered four broken ribs, a broken collarbone, a broken leg, and a swollen bloody eye. Ayaz woke up in the emergency room. The information about being out of the cross walk, in other words, was unlikely to come from her.

Rather, the false information most likely came from the driver of the bus. The video was found later by a local business.

I’ve covered bus accidents in the past on this blog, on the subject of trying to alter the “facts” in favor of the bus company and against the victim. Most notably, I wrote up in 2012 how NYC Transit Authority bus drivers weren’t permitted to call the police after collisions, as required by law, but rather, had to radio in to a supervisor who would come “investigate.”

The questions for this bus collision would follow the same path: Who was the first person the driver called? Was it 911 or some dispatcher? If 911, was the story told at first different from the one told to the police later? If it was to the dispatcher first, why?

This is the nature of litigation. People will lie to protect themselves, which appears to be what happened here. Except now there is something very rare — hard proof of what actually happened.

Over the years readers have seen me approach many litigation issues here with a cynical eye, not quite trusting the statements that may be made in support of what position or another. There’s a reason.

It’s not in the least bit uncommon for a driver to tell a wholly different story than the victim, or the eyewitness standing on the corner, if that person actually sticks around and the police actually write that person’s name down in a report.

I know, you think the cops always write down the names of witnesses. It ain’t so. And the failure to take a couple of minutes to do so can cause years of litigation.

In fact, this same scenario happened to me, when I witnessed a pedestrian hit by a car. I gave my name to both the driver and to the cops. And you know what? I was told by one of the attorneys at my deposition that the cops never wrote my name/number down in the report. If the driver didn’t have my name and number also, this piece of evidence (my eyewitness account) would have been lost to the actual participants.

If not for this video in this bus-pedestrian collision, the bus driver would no doubt have an insurance company attorney accusing the pedestrian of being a liar when she claimed she was in the cross walk. She would, in effect, have been victimized twice.

I said there were two reasons to write, and now comes the second: This is all something to think about when you hear people talk about a “litigation explosion” and tort “reform,” as if problems were caused by the victims themselves.

It’s worth nothing that if the injuries of the victim are bad, it wouldn’t be a private insurance company paying for the losses. Not only could the victim be deprived of full compensation, but also, some of those costs of caring for the injured could be shifted to you and I, the taxpayers.

And so it is that I started this piece with a bus-pedestrian collision. But end it at a public policy discussion, which is important due to the shift in the political winds.

 

January 6th, 2015

On Suing and Being Sued

LA4857-001

A new graphic, for lawyers that bring idiotic defamation cases: The dunce cap.

So I bring lawsuits for a living. And I’ve repeatedly railed against the tort “reformers” that seek to limit suits.

But now I’ve been sued twice in idiotic defamation suits for my writings on this blog,  both of which were thrown out in the pleadings stage. The first was Rakofsky v. Internet and the second was by Dr. Michael J. Katz.

It’s reasonable to ask (as Daniel Fisher did yesterday in Forbes) since I’ve now been on the other side of the “v” twice: Have my thoughts changed on the subject?

And the answer is no.

True, these were both a pain in the ass and a diversion of both time and resources for me.

But the answer to such suits is not to close the courthouse doors by offering protections and immunities against suits — for the real damage and danger there is closing the doors to legitimate issues.

No, the real solution is punishment with the proper use of sanctions. In both cases against me the judges refused to sanction, despite the fact that the cases were such dogs.

We have, I think, a judicial culture in New York against punishing frivolous and idiotic behavior in our courts. Compare, for example this federal judge in California lowering the boom on a frivolous suit against the National Law Journal that was also reporting on courthouse activities.

The laws are on the books (see CPLR 8303-a). They may not be strong, but the Legislature put them there. That is the place to seek redress for the boneheaded suit. Not closing courthouse doors.

Updated: See New York Needs More Robust Anti-SLAPP Legislation

 

 

July 2nd, 2014

Power to the People (A Declaration of Independence)

DeclarationIndependence-Trumbull

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.

Today is July 2nd. On this date in 1776 the Continental Congress voted to declare its independence from Great Britain and a new nation was born. John Adams thought that the 2nd of July would 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.”

The Declaration of Independence was formally adopted and signed two days later, and it is the 4th that we celebrate. (And it was on the 4th in 1826 that Adams and Thomas Jefferson both passed into the next world.)

But aside from re-publishing that extraordinary document originally crafted by Jefferson, as I do below and I do each year, I wanted to take a moment to discuss tort “reform.” Because it is very much connected to our independence.

The Declaration has, as its heart and sole, a discussion of how King George III seized too many powers. And the colonists believed — and were willing to risk their lives for the principles — that power should more justly reside with the people.

And so you will see, as but one example of “the long train of abuses and usurpations” charged against the British King that forms the Declaration’s bill of particulars, this:

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

And in the subsequent Bill of Rights, there are three separate places where rights to a jury are established: In the Seventh Amendment (for civil trials), the Sixth Amendment (for criminal trials) and the Fifth Amendment (grand juries for capital or infamous crimes).

It is clear that the Founders wanted powers related to both civil and criminal fact-finding to reside with the people, and not with any head of state that may be subject to whim, politics or the pressures of the moment.

This tug-of-war over how much power should reside with government and how much with the people exists to this day. Speaking broadly, it is the conservatives who want to see a smaller, less powerful government and liberals a bigger and stronger one.

But oddly enough those principles seem to fall by the wayside in the discussion of tort “reform.” When it comes to that, some conservatives, for reasons that have never been explained to me, want to give various governmental protections and immunities to others so that wrongdoers can’t be effectively hauled before the court for accountability.

This abandonment of principle happens in the pursuit of …what?  I can’t even finish the sentence as I still can’t fathom it, despite having written now on the subject for so many years.

To those conservatives that read this blog, I urge you to re-read our Declaration (and Bill of Rights) and ask yourselves why it is that, for this issue, principles of smaller and less powerful government have fallen by the wayside in favor of granting governmental protections and immunities.

And now, without further ado, Mr. Jefferson and his fellow congressmen:
————————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

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.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

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

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

March 24th, 2014

Judicial Hellholes (About That Motherf*ckin’ Post…)

Judicial HellholesLast Friday I put up a story about a potential juror that, upon hearing the case dealt with a slip and fall, said to the plaintiff’s attorney during jury selection, “You motherfucker.”

I had three reasons for putting up that guest blog by “M.J.” First, it was funny.

Second, it showed how a talented attorney could make lemonade from lemons, as the few jurors left in the room after the majority made a run for the door were those most likely to listen fairly and objectively.

But the third reason was the most important. All too often we hear bleating from the bleachers — those who don’t actually try cases but fashion themselves pundits on the subject — about how easy it is to manipulate juries, or how the jury system is skewed in favor of plaintiffs due to the sympathy factor.

One outfit, the American Tort Reform Foundation, annually publishes a report on “judicial hellholes.” No, it isn’t an empirical study. They simply interview attorneys for corporations and ask them which places they wouldn’t want to be sued in.

But you wouldn’t know that by the way the press annually reports on the report as if it was a real study. Let’s face it, many members of the press are lazy and simply refashion press releases into articles.

You want a judicial hellhole? Then look at potential jurors who aren’t even interested in the facts, as they have already decided that the cause of the problem is not what caused the injury, but the lawyer that sought the justice.

The marketing folks learned a long time ago that propaganda often works. The job of the propaganda victims is to expose it and hopefully educate others. Thus, over at the PopTort, they once mockingly wrote of the report:

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out. You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers. Frankly, it gives me goose bumps. [much more at the link]

Sometimes we succeed in our education. Adam Liptak at the New York Times wrote about the judicial hellholes report that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

Since the tort “reformers” never stop, it’s worth noting that there are, in fact, judicial hellholes out there. Anyone that has ever stepped into the well of a courtroom and engaged in jury selection will have war stories to tell about it, albeit not quite as blunt and funny as the one “M.J.” shared with me last week.

 

 

April 29th, 2013

The Fallacy of Loser Pays in Tort Litigation

OverlawyeredLast week at Overlawyered I had a little back and forth with its publisher, Walter Olson, on the concept of a loser-pays system. For those not familiar with the idea, this specifies that the loser of a lawsuit pays the legal fees of the winner. This is in contrast to the “American Rule” that says, generally, each side bears its own costs.

There are exceptions, of course, such as legal fees being part of a sanction for frivolous litigation, but we deal here today with the general rule.

There are two issues regarding the rule: The first is that it effectively closes the courthouse door to much of middle America. On one side in a typical tort case is likely to be a multi-billion dollar insurance company defending an auto collision or medical malpractice case, and on the other a person who may be struggling to work, or incapacitated and trying to figure out how to pay the mortgage or rent.

One side has incentive to run the meter and stall, and can readily afford to do so. If the litigant loses a simple issue of “who had the green light” then financial devastation may follow, but there is no such threat on the other side. The parties are not equal and the scales of justice unbalanced.

But the second issue is more interesting to me here because it deals with even broader public policy issues, and that came up with Olson’s comment responding to me:

A “legal system that only the wealthy can use” is not an accurate description of the pluses and minuses of the legal systems in the great majority of advanced democracies where loser-pays is the norm, such as Canada, the U.K., Scandinavia, the Netherlands, and so forth. It does, unfortunately, accurately describe some sectors of the American legal system (such as small high-merit claims and many injunctive matters) where neither fee shifts nor contingency fees are available. Oppose loser-pays if you like, but enough of the sloganeering.

The U.S. system here is compared to other nations with reputations for significant social service programs (and high taxes to pay for them). Universal health care is the most obvious example. The U.S., by contrast, has far less government involvement with our lives and some of the lowest taxes of any industrialized nation on earth.

If we close the court house door on people by making it more difficult to proceed, then what happens to those already injured? Well, they absorb the costs themselves until they are poor enough for the minimal social service programs that we have and then the taxpayer picks up the tab. And they remain poor, having now been victimized first by the negligence of others and then again by being forced to bear the financial burden.

The American Rule, as it now stands, is consistent with the parties working things out privately in court with minimal government intervention. Sure, verdicts can get tossed out if they are true outliers, but for the most part verdicts are respected.

The interesting part about this political discussion, I think, is that last week Overlawyered became affiliated with the Cato Institute, a libertarian think tank. While I certainly wouldn’t want to speak for them, it seems to me that a loser-pays system (and other tort “reform” measures that give protections and immunities to those who are negligent) garners greater government involvement in the lives of the populace, contrary to its own political philosophy.

If we want to shift the costs of injuries caused by negligence away from the tortfeasors and onto the backs of the taxpayers, then we need those Scandanavian government economies to accommodate that shift and provide the support.

The U.S., I think it’s clear, isn’t going that way.  We are faced with a choice as to whether we let parties duke things out privately or let the government come in with support. A nation can have one or the other. But what we can’t have, is both the stripping away of private rights at the same time that we have limited government support. That is not the model used by any industrialized nation that I know of.