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 discussing about prematurely asking people to go 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:
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.
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.
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 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.
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:
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.
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 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.
My first car was a 1982 Honda Accord hatchback. Five-speed stick. Roll down windows. Manual locks. No A/C.
I learned to drive stick when my older brother needed me to drive his manual transmission car back from Philadelphia to Long Island. I got a lesson on Saturday. And drove it solo out of Center City Philly to New York on Sunday. Only stalled once.
My theory in buying that no-frills Honda was simple: The fewer automated things, the fewer things would break. And nothing ever broke. It was a great car and I used it for many a trip back and forth to Buffalo during law school.
But cars and Manhattan are not a good match and when I moved there in 1986 it was time to kiss it good bye. When I needed a car I would rent one and those rentals were far cheaper than the cost of garaging it.
(Hang with me a bit here and I’ll get to the safety and personal injury stuff.)
When I moved to the suburbs after 13 years of city living it was time to motor up again. But I had a problem, and part of that problem was a pipestem driveway. And Mrs. NYPILB (she loves that acronym!) didn’t drive stick, didn’t know from clutches, and didn’t want to learn the three-pedal two-step. In twenty years of marriage that’s the worst I can say about her so I figure I’m pretty far ahead of the game.
Having a two-car family and a pipestem driveway would mean constant car shuffling. I let the fun of driving stick slip away since my car was mostly going to the train station anyway. And that’s just the way it was.
When Dear Daughter was old enough to drive, she followed in her mother’s footsteps.
But Dear Son thinks differently. He’s a car guy. Want to know what that car in front of you is? He’ll tell you in two seconds based on the tail lights. At night. Ask him what he wants to be when he gets older and he’ll tell you a McLaren owner. But he’ll settle for a Lambo if he has to.
Until he started talking car stuff, I had no idea that tail lights could be an art. Or that there really was much difference. I was simply oblivious since I’m not a car guy.
So with the lease being up on my Subaru Impreza hatchback, I needed to go car shopping. But I confess that I love this vehicle because of its all wheel drive and the car’s many safety features, which you can’t dismiss when you’re looking at teenagers. Dollar-for-dollar you get a lot of bang for the buck.
I took Dear Son with me to look at a couple of cars, including the next gen Impreza. Guess who wants to drive stick? Yeah.
But the salesman let me know the deal: If I want the stick and clutch, I can’t get the Eye Sight Driver Assist. What’s Eye Sight? That’s the computer that not only beeps when you change lanes without signaling, but more importantly will automatically brake when a car or pedestrian is too close in front.
So if a car coming at you in the opposing lane suddenly makes the dreaded left turn in front of you, or a drunk pedestrian steps off the curb in front, the computer might well react before you. Split seconds can make a difference. Literally.
As you might assume from the bear bones ’82 Honda I started with, I’ve never been one for tech features in a car — I’m the type that never uses the cruise control. Digital doodads don’t light my fire. I want to drive a car, not be driven. And I think self driving features are dangerous because they promote inattention.
That’s one of the things about driving stick — you can’t be inattentive. Unless you are cruising on the highway you are constantly engaged. You’ll never see someone driving stick and texting, or eating a hamburger, or even drinking coffee. Not in local traffic, anyway.
But there’s no getting around the fact that the Eye Sight Driver Assist is not only good tech, but tech that remains invisible until called into play. It’s part of the wave of advanced safety features that are coming as car companies automate their vehicles.
That tech, however, is incompatible with a manual transmission. You can choose between a valuable safety feature — one that will become far more ubiquitous as the years roll by — or the fun and engagement of driving stick. But you can’t have both.
(Another tech development that will help drive a stake through the stick is an app on your phone that allows you to remotely start your car minutes before you get there. When it’s 100 degrees outside, or 10 degrees, that’s going to be a valuable and desired feature. But manual transmissions get parked in gear, not neutral, and you can’t remotely start a car that’s in gear.)
Driving a manual transmission is not only fun, but a valuable skill. It allows you to feel how the car works, and be more engaged with your surroundings, even if you’re clueless under the hood.
Manual transmissions have, of course, been declining in the United States for several decades, due to ease of use for the automatic. They used to at least have the advantage of being cheaper engines and better on gas, but even that has changed. The computers on the automatic now get better mileage than you can with the clutch.
When you add up the long term decline of stick due to ease of use of the automatic, with the breakneck speed of technological safety improvement, you get a recipe for stick-the-fork-in-its-done.
In ten years the manual transmission, beloved by a decreasing percentage of car drivers, will be little more than a specialty item that needs to be custom ordered. It pains me to say it, but the stick is dead. Ultimately killed by safety.
Subaru has announced its updated pricing and trim level changes for the 2020 Impreza. Tucked away in the press release, however, is a bit of bad news for enthusiasts: there’ll be one fewer Subaru manual transmission option available as we move into the 2020 model year.
Ouch. And the reason is, as noted above, incompatibility with the safety tech of their Eye Sight computer safety stuff:
Development costs to add a new manual transmission are high. The take rates for them now are low. They have no place in an “electric” or “electrified” future and prevent universal implementation of Subaru’s EyeSight safety technology.