July 1st, 2017

July 4th, Medical Malpractice, and the Bill of Rights

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

A few days ago I wrote about an abomination of a bill that the House of Representatives narrowly passed, posing as tort “reform” in medical malpractice cases.

It wasn’t really “reform” (which implies improvement), but rather, a bill that seizes power from the states, grants protections and immunities to negligent people for their conduct that injures others, and foists much of the costs for those injuries out of the private sector and onto the wallets of the taxpayers.

But it did something else too, and I saved that for today. It also pissed on the Bill of Rights, specifically the Seventh Amendment.

Part of the law restricts pain and suffering awards to $250,000, and it also pushes many state actions into federal court.

The “problem” is the Seventh. It is a problem for those that want to seize federal power. Everyone else calls it a protection. Because that is what the Bill of Rights is, a list of protections.

For those that may have forgotten, the Seventh reads as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

So the Founders decided that any significant suit (with $20 being the arbitrary limit) shall have the right of trial by jury. Notice that there is no arbitrary top limit?

Yet that is what a Republican majority of the House did — it imposed an arbitrary top limit that does not exist, thereby stripping away the constitutionally protected right to a trial by jury for the most seriously injured of people if this bill should become law.

That right to a jury trial goes way, way back to the Declaration of Independence for us. It is the reason that I refer to July 2nd as Jury Independence Day, because that is the day that the Declaration of Independence was voted on and passed by the Continental Congress. It was two days later, on the 4th, that the Declaration was signed, but John Adams thought that it was the second that would be the day “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.”

I post on this subject each year, and the words that follow are an adaptation of those prior messages. And the Declaration of Independence is reproduced in full after that. I like to read it in full each year at this time.

————————-

The Declaration has, as its heart and soul, 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.

 

January 15th, 2016

30 Years Ago Today…

Studying for the bar on the front lawn of parents’ home, summer of 1985. That’s not a laptop — it’s a briefcase.

Oh gosh, I don’t even know where to begin. So I’ll just type and see what flows.

I remember standing there on January 15, 1986, in the well of the courtroom at the Appellate Division, Second Department, hearing my name read as part of the roll of freshly minted law graduates. Despite a small hiccup because my bar exam answers were lost, I was ready.

And thirty years ago today I was sworn in as an attorney. Ronald Reagan was President. Martin Luther King Day had just become a federal holiday. Chernobyl would soon melt down in the Soviet Union. And the subway was $0.90 and still used tokens.

I’d already been working for months as a “non admitted attorney” or “J.D.” or however else it was that I signed my name to letters back then, to qualify that I wasn’t actually authorized to stand on my own yet before a court.

But once admitted, I was quickly tossed into the litigation fire.  And with that, there was one Golden Rule I was given: For the first year, there was no such thing as a stupid question. My mentor understood the risks of a young attorney too afraid to ask.

The boss went around the office and asked each of the medical malpractice attorneys to self-select a few files for me. You might rightly conclude that these were not the easiest cases in their file draws, nor those in the closest counties.

Within two months I was taking depositions in a medical malpractice case concerning a one-year failure to diagnose and treat lung cancer, when a spot that appeared on a routine chest x-ray was not appreciated. When surgery was finally done to remove the diseased lung, the pulmonary artery slipped out of the clamp and the man bled to death on the operating room table.

Everyone was sued. Internist, surgeon, assistant surgeon, anethesiologist, hospital. Everyone.

And it’s amazing what you remember from your first time, and the lessons (if you had good mentors, which I did) that carry through over the decades.

My marching orders were clear: No matter how much obstruction I faced at depositions by the battery of seasoned attorneys from the five law firms on the other side:

Keep asking questions, no matter what the other lawyer says.

Lawyers will object — don’t fight back.  Just establish that the lawyer won’t allow the question to be answered.

Make a clear record of the obstruction.

Then make motions to bring back the doctors for continued depositions if they were recalcitrant in answering due to the antics of their lawyers.

Then actually bring them back for those continued depositions, even it’s for only one question and a few follow-up that need to be answered. Doctors are not happy when they have to take off half a day to answer just 10 minutes of questions. And their anger will be taken out on their own lawyer, who caused this to happen. That law firm will never do it to you and your clients again.

All the time, I was astonished that I was allowed to do this, and wondering if, at some point, one of those lawyers would point a finger at me and cry “fraud.”

I learned that it was OK to be inquisitive like a child, and to force witnesses to explain complex terminology as if I was a high school student. Because that might be all the education that some of the jurors might have, and a real trial lawyer (not a baby one like me) might one day want to read it to those jurors.

In my first two years I tried two medical malpractice cases. And I’d completed over 100 depositions of doctors/nurses.

I was 28, and recognizing I might never have this opportunity again, took a year off to travel the world, knowing (or at least believing) that by that point I’d acquired the skills to be hired by reputable firms, and that no one would look at me and cry fraud. Because I had good training.

On return, I wasn’t certain what I would do, so I printed up some business cards, taped one to a blank piece of paper and xeroxed that onto good paper. I had letterhead, and I was in business for myself doing per diem work for other lawyers. Court appearances, depositions, and eventually trials.

I typed up reports on the Smith Corona I had used in law school. I filed papers myself. I made countless phone calls from courthouse pay phones, always carrying with me a roll of emergency quarters.

That was 1989. And the business I have today is, except for the technology, the same one — small firm practice doing personal injury (but needing the per diem appearances and trials that consumed my first few years).

In this capacity I have represented people in big cases and small, famous (a client on 60 Minutes) and not (the vast majority). I’ve taken verdicts in every county in the area, and tried cases in both state court and federal. From the most mundane of tasks, to arguing in the Second Circuit. At the end of May, I am scheduled to be sworn in at the Supreme Court.

Along the journey I rented offices, hired (and fired) staff, and started this little blog (nine years ago). Many times I wasn’t really sure what I was doing, but sitting still wasn’t going to be part of it.

Today, I’m older than I ever was, but know that I am younger than I’ll ever be. So I keep moving, and if I get a chance, will continue to run marathons. It may be that one day I look back at these as the good old days.

The lessons along the way have filled this blog — on deposition and trial tactics, ethics, marketing, law office management, cases in the news, recent personal injury decisions, tort “reform” and much, much more. I rarely write about myself in this space — I’m not big into navel-gazing and if this blog was about self-promotion I’d have an audience of one — but I make an exception today.

It’s my anniversary. Or barversary. Or something. There must be a  wonderful portmanteau to invent for such an occasion, but I just haven’t thought of it yet.

Happy anniversary to me.  I think I’ll go have a beer tonight.

 

November 17th, 2015

Give Me Your Tired, Your Poor, Your #SyrianRefugees

Statue of LibertyI hate to go so wildly off-topic to venture into the world of politics, but when something happens that is so fundamentally at odds with our nation’s founding principles, it’s hard to silence my keyboard.

I woke today to find that, in the wake of the attack in Paris, a number of Governors are trying to keep Syrian refugees out of their states, apparently out of fear that a terrorist or two might slip through the tens of thousands of desperate souls seeking freedom:

After the terror attacks in Paris that killed at least 129 people, the placement of refugees fleeing Syria has come under scrutiny as at least 18 governors — mostly Republicans — have said they do not want the refugees in their state.

So this is a good time for them to re-read The New Colossus, that being the extraordinary Emma Lazarus poem that they learned about in grade school that sits affixed to the Statue of Liberty in New York Harbor — a statue that was a gift from France.

And it is a reminder to those governors that this is a city of a thousand cities, and this is a nation of a thousand nations, and that the vast diversity of our citizenry is what makes us stronger, not weaker.

If ever there was a group of “wretched refuse,” homeless and tempest-tost, it is the refugees of a war that has already claimed over 200,000 lives:

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”

 

May 21st, 2015

Jury Selection, Brooklyn Style

Brooklyn’s county courthouse, 2008. Photo credit: me.

Two recent articles in Reason by its Editor in Chief, Matt Welch, raised issues about New York’s jury selection process and are very much worth discussing. Welch, as you’ll see, didn’t find the experience as amusing as my screenwriter-brother, or get any of the hoped-for excitement that my niece Ellen wanted, and certainly didn’t appreciate it the way I did when I sat jury duty many moons ago (and was selected).

So on to the main event: Welch. When I first read the first of his two articles in his libertarian oriented magazine, I was ready to mock, parody and lampoon his never-ending stream of whines, complaints, grumbles and gripes. That was my gut reaction, and it was going to be fun.

But there was one big point he made and one big point that he botched, and both are deserving of attention.

First, his take on the selection process: He bitched, whined, moaned and complained about the Brooklyn courthouse architecture, the dirty plaza in front, the security, and the ever-so-slow orientation and waiting to be placed in a voir dire pool to be questioned by lawyers. (How Jury Duty Almost Turned Me into an Anarchist)

When he finally gets there, he sounds like Arlo Guthrie showing up to his draft board after a long night of drinking — prepared to be injected, inspected, detected, infected, neglected and selected. In meeting the lawyers for the case, what type of mind set do you think he started with?

Is this stuff important, or just superficial belly-aching by someone looking for material to write about, as he did in his book about similar issues?

Answer: It’s important!! You don’t shoot the messenger because you don’t like the message.  He made a valid point that some jurors may be poisoned by the process itself, even before actual selection started. Anyone who practices law in Brooklyn knows we need vastly more room and judges.

And court administrators should take note, to the extent that they have the capacity to actually do anything about it within the tight financial constraints that the Legislature imposes.

Subway art, Borough Hall station where the courthouses are. Photo credit: Me.

Wouldn’t everyone — jurors, lawyers, judges, clerks and officers — rather be inside that great, big, new, shiny federal courthouse down the block? You betcha. It’s vastly more civilized, and jurors don’t start the trial phase, if they get there, feeling abused. The building itself, and the federal administration of it, oozes competence and justice (much to the chagrin, likely, of criminal defendants).

And feeling abused is important, for then the aggravations and irritations of the process itself may simply confirm pre-existing biases to the detriment of one side or the other.

Confirmation bias is a huge issue to deal with in jury selection (and the issue Welch botched). Because many people instinctively look for facts to “prove” the thoughts they had before hearing evidence, or reading a news story. They want to know that their opinions were “right.” This is most commonly seen in politics, where everything  on “the other side” is wrong.

Welch states that he wants to do the right thing, claiming near the outset of his piece:

Jury duty is a chance to bond with fellow citizens you might not otherwise meet, peek under the hood of our flawed judicial system, and do our small part to advance the noble democratic ideal of participatory justice.

And he also writes, in his own defense that:

…I would also say that within libertarianism there’s a broad appreciation that the civil system provides the kind of redress unavailable in places like Western Europe, for example. And at any rate, I don’t have strongly held opinions about it; my strongly held opinions are about the criminal justice system.

But when I look under the hood of his writings, in just these two pieces, I see a pre-existing proclivity, and the concern any lawyer would have for potential confirmation bias if he were to sit in judgment. Describing the case as he first hears about it in the jury selection room, he writes:

It is, to my chagrin, a civil trial, not a criminal one, involving the category of incident one might see advertised in a subway car.

Ouch. OK, he is entitled to his opinion for sure, regardless of whether I like it or not. But it’s hard to miss the underlying bias.

In his second piece, entitled How Lawyers Pre-Try Cases During Jury Selection, he tries to claim the voir dire process (and the jurors) are abused by the lawyers trying their cases in the room without a judge or evidence.

And he continues his complaints by dropping another clue as to his underlying feelings, calling plaintiff’s counsel a “Court Street Lawyer” with a link to a derisive description.

Moses with the law, at the entrance to the Brooklyn courthouse. 2008. Photo credit, me.

Now the vast majority of people will say, and likely believe, that they can sit fairly and listen to evidence, if the question is put to them directly. But this is a very superficial question, and ignores the underlying biases a juror may have. And that, in turns ignores the very legitimate concerns that such jurors will engage in confirmation bias as they listen to the evidence. This is what the trial lawyer needs to worry about, regardless of who they represent.

Welch himself knows about confirmation bias. On just the 4th page of his book The Declaration of Independents, he writes with co-author Nick Gillespie:

You may have heard of confirmation bias, whereby people tend to notice and believe whatever rumors, news stories and quasi-academic studies confirm their world view.

But seeing it in others is altogether different than seeing it in the mirror.

It was during that second piece, that he argued that the lawyers were looking to get rid of all the potential jurors with expertise. But this is not what trial lawyers do. We look to get rid of those with deep-seated biases, because we worry that such people will simply look for evidence during a trial to confirm them.

One example of what Welch thinks is an attempt to argue the case in the jury selection room and condition the jurors is the common question trial lawyers ask when talking about money and damages, “If you thought the injuries were substantial would you hesitate to bring back a substantial verdict?” But I (and so many others) ask it because I want to know about a political bias — do they have any feelings about one-size-fits-all damage caps? I would consider that information to be pretty important. So would my adversary.

And the reverse is also true when discussing the issue of damages, and is also asked: If the plaintiff shows only minimal injuries would you have any problem bringing back a minimal verdict? I’ve yet to meet a defense lawyer that is a potted plant. (The wise plaintiff’s lawyer asks both questions – asking about both the substantial and the minimal.)

Another example of bias are potential jurors who work in the medical field, sitting in a medical malpractice case. Are these people automatically excused due to their expertise?

Some would be inappropriate due to subconscious concerns about what their co-workers would say if they brought back a plaintiff’s verdict. It’s the lawyers job to ask about that bluntly and make the juror ponder it.

Yet others might acknowledge that they have seen all manner of bad things happen in a hospital. So dumping medically educated jurors or keeping them could go either way.

And more important than the medical practitioner is the parent of one. For now emotion/bias is even more likely to be a factor as the lawyers fear this juror seeing their own kid as a defendant.

Thus, Matt Welch’s two Reason articles are useful: Useful in describing the oft-times miserable experience that some jurors have, so that court administrators and legislators that hold the purse strings can address them and so that lawyers can appreciate what these potential jurors have gone through before the first questions are even asked.

But it is also useful in ways Welch might not have appreciated, as a good example of seeking out the underlying biases that potential jurors might have, and addressing head-on the concerns about them engaging in confirmation bias as they listen to the evidence.

Addendum: As I re-read this piece this morning while sitting in that same courthouse, just after publishing, I remembered I had written back in 2008 about the highly scientific method that I use for jury selection: Who Sits Jury Duty? (The Turkewitz Beer Test)