April 15th, 2020

It Won’t Happen to Me

David Lat, via ABC News

When I was a puppy lawyer I learned a truth that’s come up time and again when trying cases: Jurors, for the most part, don’t think that the bad incident would have happened to them.

It doesn’t matter if it’s a car crash or medical malpractice. Somehow, someway, people want to believe they are different. The victim must have somehow been vulnerable or at fault.

And then the same issue popped up with COVID-19.

Before going on to an interview with David Lat on this subject, I want to reinforce something: I’m no different. I’m scheduled to turn 60 next week — I may cancel due to the virus, and stay 59 for another year — and figured that the virus probably wouldn’t make me ill. Despite being in the original east coast containment zone.

Why? I’ve been a distance runner for almost 30 years and run a bunch of marathons and have, I think, a pretty good set of lungs. And healthy lungs are important, we’ve been told, in fighting off the virus.

It was with this mindset that I read this op-ed in the New York Times featuring an interview with Lat, who recently spent six days intubated due to COVID and emerged to tell his story in many forums.

But this particular telling of the story, on the op-ed pages of the New York Times (The One Kind Of Distancing We Can’t Afford) grabbed me differently than others. It was about the way folks wanted to psychologically distance themselves from Lat.

They wanted to be different from him. To prove to themselves that they were not at the same risk.

The op-ed writer, Jennifer Senior, reacted the same way I did — and many of you likely are, after finding two of her doctor/nurse friends saw a 50-year-old woman die from COVID:

I, too, am a 50-year-old woman. As I listened to their stories, I had to stifle the same unlovely impulse. “But did your patients have a pre-existing condition?” I wanted to ask. “Were they fighting cancer, were they smokers, were they already floridly unwell?”

Nobody, but nobody, wants to believe they are at risk. We are all smarter than average.

Ms. Senior sets up the background regarding Lat, writing:

For Exhibit A, look no further than the Twitter account of David Lat, the 44-year-old lawyer, legal recruiter and founding editor of Above The Law, an immensely popular blog. Lat was diagnosed with Covid-19 in mid-March, and he’s tweeted about it ever since, save for the chilling stretch during which he was on a ventilator. When he returned, he posted a thread exploring the reasons some people die from Covid-19 while others suffer not at all.

This part is well known by many, as he first appeared in New York’s legal press and has since made numerous national appearances.

But the reactions of others to him is what really jumped off the page at me, for it went directly to something I’d known for decades about jurors when trying cases, yet never appreciated in myself:

He was suddenly pelted with queries about his own health. People were subtly probing to see whether there was a hidden reason he’d fallen ill.

It appears that Lat’s own friends were acting the same way as many jurors, which is to say, they were acting as humans subconsciously worried about self-preservation. They were looking for the reason that they would not have the same bad luck that Lat had. They were different. They had to be.

Lat went to say:

“Maybe I’m reading too much into things,” he replied, “but I received a number of responses that seemed to latch on excitedly to the mention of my exercise-induced asthma.”

And yet, he was exceptionally active, likely far, far more so than the average person. By orders of magnitude:

That he ran two New York City Marathons with this asthma in his 30s — and did high-intensity interval training three times a week until he fell ill — didn’t move a number of his followers. (The bluntest response: “Asthma is still asthma, waiting to knock you out, and any severe respiratory illness reveals the fundamental weakness of your lungs.”) Nor did the fact that Lat was healthy in every respect: normal blood pressure, normal weight, didn’t smoke, barely drank.

We all want to be different than that other poor fellow who was hit by the car or the victim of malpractice. We want it badly. But we aren’t.

There probably isn’t much we can do about that, as I think this is fundamental to human nature, and something I learned about others many years back.

But the least we can do is recognize it in ourselves.

 

March 24th, 2020

Will Red-Staters Be Hit Hardest by the Virus?

I hate to delve into politics outside my wheelhouse, mostly on the fear that if I start I may never stop. But New York’s civil courts have ground to a virtual halt due to COVID-19, with all conferences and legal filings halted except for emergencies.

And so I venture for a moment into a different space as I watched Trump be dismissive of the virus for at least 51 days — from a January 22nd interview (“It’s going to be just fine…We have it totally under control” until his March 13 declaration of emergency. And now prematurely discussing people going back to work against the advice of medical professionals.

With this backdrop I think that the folks most likely to be affected are going to be Trump supporters and red-staters. These are the reasons:

First, there are higher percentages of smokers in red states making them more susceptible to the consequences of viral infection;

Second, this population is more likely to believe (at the outset) that the virus is a hoax and, therefor, not take precautions;

Third, this population is less likely to take the advice of government officials, as Trump has talked incessantly about the Deep State out to get him.

Fourth, red states are generally poorer and, therefore, have fewer people with health insurance;

Fifth, red staters have generally lower education levels and are less likely to pay attention to the warnings;

Sixth, with the virus first hitting (predictably) urban areas like Seattle and New York City, many folks will be delayed in thinking that this could really affect them.

Now toss into the mix a few other factors: Coal mining country is chock full of people with lung disease. A particular problem for parts of Pennyslvnia, Ohio, West Virginian, Kentucky and Indiana (among others).

And the Bible Belt could be hit also due to the communal nature of religious congregations. The ultra orthodox Hasidic community has already seen this. The virus, of course, knows no religion. It merely spreads with opportunity.

For many, many people the reality of the virus won’t truly hit home until someone they know has been affected. (In an odd way, this is similar to the advance of gay rights — most people were opposed until they realized that people close to them were gay.)

I would, it should go without saying, hope to be very wrong and that the virus vanishes with people social distancing themselves from each other. This is one of those situations where there is no us/them divide, as anyone can infect anyone else. But humans are social animals, and we gather for dinners, a beer, a religious observance or a ball game among a thousand other scenarios.

Putting together a group that both take the situation the lightest (generally red-staters), and those most at risk or health reasons (again, generally red-staters) may prove to be a very deadly combination. For all of us.

And on the political front — and this is my only political comment — betrayal is a hell of a thing.

 

July 12th, 2019

Will New York Settle?

I started this blog in 2006 and there’s one subject I’ve never broached in over 1,500 postings: Settlements.

There’s a good reason for it, that being that a personal injury lawyer doesn’t really want to be known as the one that settles, but the one that takes a verdict.

If you prepare your case for settlement you are stuck — you aren’t ready for verdict. But if you are ready for verdict can you be ready to settle if the opponent asks that this door be opened. The defense lawyers and insurance companies need to know you are ready for verdict.

I have subject headings on this blog for Bork, beer, baseball and the Boston Marathon, but until this moment, no subject heading for settlements.

The last Legislative session changes that, however, due to a crucial change in the law related to settlements that passed both the Senate and the Assembly. If Governor Cuomo signs it. He should.

The settlement issue comes up in the personal injury context when you have joint tortfeasors. Assume that Defendant A wants to pony up some money but Defendant B does not. Presently, if you accept the offer from A, then B gets a choice after verdict regarding a set-off. B can either deduct the percentage of liability of A (the equitable share), or the gross amount of the settlement that came from the settling defendant.

This choice is a windfall for B. But worse than simply being a windfall, it actively discourages settlements. Few plaintiff’s want to see themselves stuck after a verdict with Defendant B getting the bonus of this choice. The devilish law is Section 15-108 of the General Obligations Law.

But it’s the public policy of New York, and I suppose every other state, to encourage settlements. It lowers the burdens on the courts, eliminates appeals, and a compromise brings finality.

What does the amendment do? It forces the non-settling defendant to make its choice of the manner of set-off before trial.

The justification of the amendment is:

The key feature of the statute, and the feature most criticized by the statute’s detractors, is that it rewards defendants who do not settle and can penalize plaintiffs and defendants who do. [This leaves] the non-settlor with the choice of an “amount paid” reduction or an “equitable share” reduction. 
 
This benefits the non-settlor in two ways. First, in those instances in which the settling tortfeasor’s payment turns out to exceed what the trier of fact later determines to be the settlor’s equitable share of the damages, the non-settlor benefits by the difference between those two sums. The second benefit accorded to the non-settlor is that the risk of settlor’s solvency, formerly borne by the non-settlor, is now eliminated. The non-settlor is able to deduct settlor’s equitable share whether or not settlor actually could have paid such sum. By virtue of these features, the non-settlor often obtains windfall reductions of liability, usually albeit not always at the plaintiffs expense… 

This bill would allow the non-settlor the same alternatives as currently exist, but require that the choice be made before, rather than after, trial. The non-settlor still would get to choose whether it will reduce its liability to plaintiff by the amount of the settlor’s payment to plaintiff or by the amount of the settlor’s equitable share of the damages. The difference is that because the non-settlor would have to make the choice before the verdict was rendered, there would be an added incentive to a defendant to settle, rather than to sit back and choose the “best of both worlds.”

Governor Cuomo should sign this common sense legislation. Or build more courthouses and hire more judges.

 

February 25th, 2019

Words You Should Never Use

Over the weekend, W. Virginia Chief Justice Beth Walker tweeted out a list of words that are banned from her opinions. It’s a good list, and one that all lawyers should note, as these words don’t belong in briefs either.

I’ve written before about crappy legal writing, from both the bar and the bench. It’s not that concise writing will necessarily win your client’s case but that at least your arguments can be appreciated. Far worse than writing a losing argument is writing an argument that isn’t even read because it makes the eyes glaze over.

Lawyers are (in)famous for cluttering our letters and briefs with pretentious, and wholly unnecessary, language, thereby distracting from the point.

A good quote to keep in mind is this gem that legal guru Bryan Garner tweeted out many years ago:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

A simple and favorite example from Garner of cluttering language is the humble transmittal letter that says, “Enclosed please find…” as if the recipient must go hunting for something.

My personal favorite are the openings to attorney affirmations that declare the writer is “duly admitted” to practice law. Is there any other kind of admission to practice other than duly?

Without further ado, these are the words that CJ Walker has banned, and with a follow-up of a few additional suggestions that came in response via Twitter. Rather than seeing that list buried in the billions of other Twitter messages, I preserve them here for easy access.

And now some others from her commentariat:

  • duly
  • utilize
  • at bar
  • impacted
  • heretofore
  • the undersigned

Since the function of an advocate it to tell a story to engage the reader and persuade, and the use of the stilted legalese distracts from that goal, the conclusion should be obvious. But, for some reason, it continues on.

 

February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.