The vote was taken by the Continental Congress on July 2, 1776, as the British fleet approached New York. True, we celebrate on July 4th, after the Declaration had been printed and adopted, but today is the anniversary of the vote when the lives, fortunes and honors of the declarants was put at risk.

Fortunately, you can read a live-blog of the event (perhaps in part to a flux capacitor on a De Lorean inspired time machine).

John Adams writes to his wife:

"The Second Day of July 1776 will be the most memorable Epocha, in the History of America. . . . It ought to 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."

It's a good day to read the text of our Declaration. And to inspire you to read the rest -- though I doubt such inspiration is actually needed and I'm doing this just because I want to -- I'll quote the first part...

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....

It is worth noting that in the long bill of particulars of injuries and usurpations directed toward the colonists, is this:

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

The story doesn't get much more appalling than this. Esmin Green -- a troubled 49 year-old woman who is waiting in the psychiatric emergency room of Kings County Hospital for a bed -- collapses onto the floor. After she had been waiting almost 24 hours. And then is ignored for an hour. And then dies.

And it's caught on video:



There is little doubt in my mind that if this incident were not caught on film that the medical records would not only detail an altogether different story, but that those records would be hard to challenge. According to this story at the Huffington Post regarding the medical records, however, the records can be challenged. And that is because of the video, which shows she collapsed at 5:32 a.m. Notwithstanding that:

One notation said that at 6 a.m., she was "awake, up and about" and had just used the restroom. Another said that at 6:20 a.m., she was sitting quietly in the waiting room, and had a normal blood pressure. During both of those times, Green was either in her death throes or already dead.

The most disturbing part of this is that it is reminiscent of the infamous Kitty Genovese murder. Genovese was a 29 year-old New York woman who was repeatedly stabbed over a prolonged period of time, and while her screams were heard by many, there were no prompt reports to the police. The murder was the inspiration for the 911 emergency telephone system.

But here, we have actual employees inside an emergency room that fail to act. The most disturbing image, to me, is the security guard that rolls up in a chair and then rolls away. He couldn't even be bothered to stand up to see what was going on.

Before this death, the hospital had already been sued after an investigation at the hospital "showed that Kings County psychiatric facilities are overcrowded and often dangerously unsanitary and that patients -- including children and the physically disabled -- are routinely ignored and abused" according to ABC News.

The fact that the attorneys here were able to get this videotape is remarkable. The incident happened, according to the story, on June 19th. That means that it was not procured through any new litigation. Because the quickest way to get pre-suit discovery in New York is through a separate action before a lawsuit is started to preserve evidence, brought on by Order to Show Cause. The judge would then order evidence preserved through a Temporary Restraining Order and then order a hearing. That takes time. Especially since there appear to be other patients in the video clip, and that brings on issues of privacy and HIPAA.

So the tape either came from prosecutors or health department investigators, or was possibly turned over as part of the prior litigation. But my guess is that it was probably leaked by a very angry employee of the hospital or security staff.

Kings County Hospital, by the way, is city-owned.

Also at:

• The Medical Quack;
• Kings County Hospital Lets Woman with Mental Illness Die (PsychCentral)
  

Labels: Hospital Malpractice

Brooks Schuelke has Personal Injury Law Round-Up #68 (in case you're wondering, I did the first 36, which is to say, Brooks will blow past me next month if he doesn't burn out);

Blawg Review #166 is up at GeekLawyer, and if you're offended by the content, you're probably in good company, since he appears to be an equal opportunity offender. Let's just say this is one time I was pleased to be ignored. According to Colin Samuels, "Those of you who are just discovering him now will . . . not be bored. Scandalized perhaps, but not bored." Ed. at Blawg Review does a supplement.

Jason Boog at Judicial Reports on the deep psychological stress some judges undergo;

It appears that the Mississippi Supreme Court is bending over backwards to favor corporations. Kia Franklin at TortDeform has the story. Interestingly, the only response so far is commenters that attack the messenger instead of the data.

And Scott Greenfield on why so many law profs rarely link to the blogs of practicing lawyers.

Labels: Random Notes

When we last met on this blog, I discussed the final two defense experts.

The witnesses are done. All that's left are summation, jury instructions, waiting and verdict.

In the morning I engage in one of my super-secret trial rituals, now exposed here for the world. I put on my wedding tie. All trial lawyers have superstitions or good luck charms.

I will be summing up last, after the two defense lawyers. It's often said that the person that goes last has an advantage. But that person also has a problem: The jury has already heard a lot of lawyer talk. They are itching to deliberate. To speak with one another and finally get past the judicial admonition that they had previously heard not to discuss the case . Listening to lawyers speak on, and on, and on is hard. The trial attorney's job is to make it interesting. To hold their eye and attention.

And that means notes must be kept to a minimum. If you're going to read your summation you might as well just sit down now and save everyone the time, because no one will hear it. The attorney representing the leasing company goes on for an hour. We have a five-minute break and the attorney for the driver speaks for about 25 minutes.

My turn. I start with a couple nuggets of trial testimony and argument I've prepared, working with the model of the spine, pelvis and hips in my hands to describe how the socket of the hip was pulverized in this car accident, and then move in to rebut the defendants arguments. Back and forth I weave from my prepared text to their arguments. Most of the time is spent dealing with the experts, and a large pad of paper on an easel is used for compensation suggestions. The main defendant had put his numbers up on the same pad just moments ago; since this is a damages-only trial he has no real choice. He then predicted I would ask for 4 or 5 million dollars, an amount that is clearly not sustainable in any appellate court. (See: How New York Caps Personal Injury Damages) That makes my job easier as I suggest more modest numbers, virtually the same ones I used in settlement negotiations. Numbers that an appellate court would find fair and reasonable if it came to that.

The jury goes at at 1:30. The defense then offers us a million. It is the first time since the accident almost three years ago they have made a bona fide offer. I did not respond kindly to their prior lowball efforts. But the offer today is still too low and we reject it.

Time to get lunch. And wait. Walk the halls. And wait. Watch 10 minutes of the trial next door. And wait. I once waited five days. There really isn't anything quite like waiting for a jury verdict.

At 3:30 I find myself writing notes about the courtroom longhand in my trial book for later transcription to this blog. I have little else to do but think and write. And one of those thoughts is this: If the jury awards less than the offer I just rejected, will I even bother to put up these blog postings at all when it's over? While such an event might be entertaining for readers, it isn't the kind of thing a lawyer would want to write about.

There has been one note. A request for certain evidence. They get it. We wait some more.

At 4:30 the jury returns with a verdict. The lawyers assemble. The jury enters. "All rise!" is shouted from a courtroom corner. We rise and wait for the judge and the reading of the verdict. And wait. And and then wait some more. You can hear the judge on the phone in the robing room. Two long minutes of standing and waiting and looking at the jury and wondering.

The judge finally enters and the verdict is read: $420,000 for economic loss and $850,000 for pain and suffering. Since summary judgment was granted in plaintiff's favor in 2006, there will also be about $190,000 in interest, for a total of about $1.46M. There may be subsequent present-value reductions of portions of the verdict relating to future damages under a complicated formula that needs an economist's brain to decipher.

The jury is quickly escorted from the courtroom. I get no chance to stand up and thank them for their service. And no chance to talk with them after they leave, as the court needs to address the issue of post-trial motions. I also need to retrieve some of the evidence and pack up my bags to leave. By then the jury is long gone. I don't get the opportunity to ask them what they thought about various portions of the trial and the decisions that I have made, to tuck away in my brain for future reference.

As I leave the courthouse I am in wonderment that this case even went to verdict: The interest has been mounting for 20 months on what would surely be a substantial case. Of all the matters in my office, I thought this one was the most likely to settle. And I silently thank my dad for teaching me to prepare all cases for verdict, and never for settlement. Since my training was in medical malpractice suits, and such cases rarely settle before trial, I've always shown up ready. And so that is the philosophy I use for my general negligence cases as well. I reflect on the lessons of my father and wonder which ones are being passed down to the next generation.

I head home to my family and take them out to a Mexican restaurant that the kids like. I order up a margarita. On the rocks. With salt. I've lost three pound during trial, about normal for me, and I will now start to put it back on. I sit back and look at my kids and try to morph back into Daddy.

A month from now I am scheduled to start all over again.
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Prior Posts In This Series:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)
  
  

Synopsis of the case at my firm's website.

Labels: Trial Practice

Yesterday's post dealt with the dueling orthopedists. Today we resume with the defense case:

Saturday, June 21st. I'm making pancakes for my kids, some with the Turkewitz Family Secret Ingredient.* But I'm thinking about the defendants' two experts on Monday. The brain refuses to shut down. My 8 year-old daughter comes up to me to make fart noises on my calf. I try hard not to think of summation comments I'll make regarding yesterday's witness.

Sunday, June 22nd -- In the home office at night, I'm making revisions to my cross examination outlines and doing more research on precluding surprise testimony from a party. But my printer runs out of ink. Crap. OK, Abe Lincoln didn't have a printer at home nor did my dad, nor did any trial attorney that came between them. I'll make do and go longhand.

Monday, June 23rd-- To hell with longhand. Early morning run to Staples for ink cartridge. I'm not my dad, and I'm certainly not Lincoln.

I pull my two trial bags on the wheelie thing up the hill to the courthouse. The trial bags were my father's. He gave them to me when he retired and I use them for good luck. The one pictured here is at least 50 years old, and still has T & T stenciled in gold on it from the time of Turkewitz & Tessel, a firm he started with the kid he sat next to at Brooklyn Law. If trial bags could talk they would rivet you with the stories they held. Dad calls me every night to find out what happened in court. I suggest, for the umpteenth time, that he come out of retirement and make a court appearance for me here and there. I offer to put him on my letterhead -- Turkewitz & Father -- and for the umpteenth time he declines.

Defendants' first witness is another orthopedist, who did a defense medical exam on my client two years ago and says she was only mildly disabled. He claims she was doing well and could go back to work, and his exam is at odds not only with her treating orthopedist, but with subsequent defense medical exams two years later that call her "moderately" and "markedly" disabled. He has never seen the records or x-rays of her treating physician. Either he has deliberately diminished her disabilities for this suit or my client's condition has worsened. That makes this witness a win-win for me.

Defendants' second expert is a rehabilitation expert who testifies that the plaintiff can go back to work doing sedentary work. She can do this, he says, despite the fact that she sleeps poorly due to pain, and thus has problems during the day, that she has pain on sitting, may need a hip replacement in the future, needs to be retrained, moves slowly due to her arthritic hip, and is in her mid-60s. I'm sure there are plenty of companies out there itching to hire such a person, but this expert doesn't name any in his report. The expert does, however, appear in a wheelchair. Which might account for why he was brought in from Pennsylvania for the trial instead of using a local rehabilitation expert. Assuming one could be found.

At the end of the day the defendants ask the court that, if they chose not to produce their neurology expert -- the one that said the client was "markedly disabled" -- that they not get a very damaging missing witness charge. Under that charge, the jury is permitted to draw an inference that the testimony wouldn't be helpful to the side that was supposed to call him. I oppose it for obvious reasons, given that he is under their control, would be expected to produce him, and that his opinion differs from the defense orthopedist. The judge rules in favor of the defense. Nuts.

Next up -- Summation and charge tomorrow. And...?
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* You're reading the footnote to a law blog about a pancake recipe? Please don't let the boss catch you.
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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

Is waterboarding torture, or is it now art?

And why, exactly, are 50 lawyers wanted for this exhibit?

"We felt like lawyers would yield an interesting result as they are most qualified to impartially describe the experience"

According to the press release at the web site linked below, the waterboarding will take place for all of 5 seconds. Somehow, I don't think 5 seconds is what the CIA has in mind when they do it.

The details are here in New York Magazine blog.

Labels: Odds and Ends

With my first four witnesses now off the stand, we turn to the main orthopedic witnesses:

Thursday, June 19th. Arrive at court for 11:30 charge conference. Bad news. Yanks are playing a day game. I park in my usual lot 50 yards from the ball yard. I have no doubt the game will end when court does. My two trial bags on the wheelie are now accompanied by two exhibit bags slung over my shoulder for a medical illustration and a model of the spine, pelvis and hips.

The plaintiff's treating orthopedist takes the stand. He's seen her about 20 times. He's my last witness. Out come the spine and the medical illustration that I commissioned from Anatomical Justice, shown here, displaying the before and after of plaintiff's hip surgery. The doctor comes down off the witness stand for an anatomy lesson and tells the jury what happened to his patient's body. I disappear into a place behind the jury and ask him to explain what the heck all those bones are, what happened in this accident, how the woman was put back together, and what her future holds. Nothing resembling legalese crosses my lips.

In a proper direct exam, the lawyer should barely be noticed. The entire focus must be on the witness. My cross exam style is, of course, quite different. A proper cross has the lawyer "testifying" and the witness simply agreeing, or disagreeing. Unless, of course, one decides to break those rules. Which I might do tomorrow for defendant's orthopedist.

Defense tries in cross-exam to claim that her back injuries are pre-existing by using records from several years back. Their problem is that their own experts don't agree in their reports that any of her complaints were pre-existing. They can't. Those records were never given to them.

My case is now in. I relax a bit. Maybe I'll even eat. Maybe.

I head back down the hill to the parking lot. The streets are filled with blue Yankee shirts. The strains of Sinatra singing New York, New York waft out of the stadium, filling the Bronx air. The game has just ended. The 20-minute drive home will take an hour.

Friday, June 20th. We have only one witness again today, a defense orthopedist. His report discusses only the medical records from 2005 and his examination in March of 2008. He has not seen any pre-accident records. He has not seen any films from 2006 or 2007 regarding the plaintiff's post traumatic arthritis of the hip. He has not seen the records of her current treating orthopedist for the past two years. Testimony should be quick. I do not anticipate the need to impeach him (too much), since he hasn't seen the important records.

But it won't be easy. Because there he is, standing in the courtroom by one of the big picture windows looking at films he has never seen before. Or rendered an opinion on before.

The jury comes in and he takes the stand and he starts to talk about all the records and x-rays that were not included in his report. I object. The judge lets him go anyway saying he can discuss things that are in evidence. It is now trial by ambush. There is no report to work from. There is no deposition of him (not permitted of experts in New York). And no way to know what will come out of his mouth. The jury can see my evident displeasure.

The defense has been created during trial. I will comment on this in summation. (The reader would do well to note here, however, that neither of the defense trial attorneys were responsible for the day-to-day work-up of the case. These postings are intended to give the day-to-day flavor of what a trial is about and the types of decisions that need to be made, not criticize opposing counsel, who were both quite experienced and able.)

The doctor testifies, contrary to her treating physician, that based on the films he saw by the big picture window that very morning that there is no post-traumatic arthritis. He says that, contrary to her treating physician, that a hip replacement will not be needed in the future. I need to modify my cross-exam.

I start by using him as my own expert. I'll get some good stuff first before I impeach him. I pick up the skeletal model and, while I stand directly in front of him and the jury, walk him through the shattering of the acetabulum -- that's the socket part of the hip's ball-and-socket joint -- in the accident when the femur was rammed through it. With my hands on the model I pull the femur out of the socket and push it back to the place it was dislocated and ask him if he agrees on the mechanism of injury, and the risks ahead due to this trauma. I walk him through the two reductions of the dislocation and the repair of the fracture and the risks of post-traumatic arthritis. He asks for the spine I am holding and I assent to let him use it, contrary to common cross-examination principles. I'm breaking a rule because I am, at this point, using him as my own expert to describe the uncontested initial trauma.

I stop lobbing softballs to the witness about the nature of her initial trauma and surgery when it comes time to discuss her current condition. I cross him on the fact that the opinion of "moderate disability" that he gave in his report -- that he now claimed in court was based in part on pre-existing issues -- couldn't possibly have been the basis of his opinion since he hadn't seen those records when he wrote his report. He is forced to modify his opinion and claim that he was only talking in the abstract and not about this patient. I don't think the jury is fooled, but I won't know until the verdict.

I force him to concede she has current disability due to the hip fracture, that she can't do her job because of it, and force him to concede she is limited in her ability to do household chores.

A courtroom observer, impartial, tells me that cross went well. Unfortunately, she isn't on my jury.

I go to sleep with a notepad by my bed for the bazillion thoughts that are running though my mind about the trial.

Query: Do hourly lawyers get to bill for the time that they obsess and think and strategize about a trial when they are home with the family?

Next Up: Two additional defense witnesses. Stay tuned.


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Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice

I've been scanning some of the 2,000 posts that accumulated in my RSS feed reader while on trial and these jumped out of interest:

So that's how tort "reform" gets done (Justinian Lane @ TortDeform): regarding the very wide disparity in money spent by big business and consumer groups for lobbying efforts. Coverage of a NYT article on the subject at TortBurger;

New York Chief Justice Judith Kaye to be leaving? (Scott Greenfield @ Simple Justice);

Clifford Shoemaker gets sanctioned (Seidel@ Neurodiversity). He is the attorney that issued an extraordinarily abusive subpoena to Kathleen Seidel, and she fought back and won. The court wasn't kind to him. (Previously here: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena; and Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned);

George Carlin is dead. He didn't pass away (Randazza @ The Legal Satyricon);

The first ever thong lawsuit? (Day @ Day on Torts);

New York's medical disciplinary system makes the news (Scheurman @ TortsProf);

In voir dire, does a bumper sticker tell you anything? (Reed @ Deliberations);

So that's what happened in the world of personal injury law while I was on trial (Schuelke, Personal Injury Law Round-Up, #67)

So that's what happened in the world of law while I was on trial (Blawg Review #165 at French-law.net)

What impact do medical malpractice caps have? (Miller @ Maryland Injury Law);

And that is one hell of a hailstorm (Coffield @ Health Care Law Blog)

Labels: Random Notes

We finished jury selection Friday, and today we open...

Tuesday June 17th. The action against the host vehicle, the one the plaintiff was in, settles for the small policy limits. This is now a damages only trial against the car that hit my client from behind.

The judge gives an opening charge to the jury along with a small historical lesson the Bronx. We open, and I tell her story, starting from the middle. Because the accident is not where her life started, but where it changed. I start with the change. Then weave back and forth between past and present.

The first witness is the driver of the car my client was in, who testifies about the plaintiff's night before the accident, the totaling of his car on the highway and the extrication of my client from the car with the jaws of life.

The plaintiff's daughter testifies about returning to New York to help her mother, the physical pain and emotional damage to her that she observed, and her rehabilitation.

Plaintiff testifies about her life before the accident, the accident and the problems she has faced.

The judge rules that a videotape we made that demonstrates the difficulties she had five months after the accident -- some refer to these as Day-In-The-Life videos -- will not be allowed into evidence. He says it is too prone to manipulation and that outweighs its probative value. I argue that these have been used for decades, and that he can't exercise his discretion on this particular tape without actually looking at it. I lose the argument. Trying to see the glass as half-full, another lawyer tells me that the judge may simply be looking to cut down any appealable issues for the defendants. That is small consolation to me.

Leaving court, the Yankee fans are starting to arrive for tonight's game, two blocks away.

So this is the basic summary of trial: Spend day in court. Prepare for next day at night. Obsess in free time.

The headline news is of gay marriages in California. I assume the legal blogosphere is generating a gazillion pixels on the subject. I haven't checked my RSS feed reader in many days.

Wednesday, June 18th. My vocational economist takes the stand to discuss the loss to the plaintiff due to her difficulty/inability in doing household chores such as cleaning, shopping and cooking. He places a value on her time for these items. That which she can still do takes much longer. Her time is compensable, as is the value of finding someone to do these tasks. Defense crosses him on the fact that friends and neighbors help out. I sit there and wonder: And therefore the defendants are not responsible? She must go begging for help for the rest of her days? I drop some notes into my trial book for summation.

Since it's a short day I drop into the courtroom next door and spend 20 minutes watching a friend trying a case with a brain injury. Much time is spent on establishing the issue of a car's title. Not particularly exciting.

I head home and use the home office to prepare for Thursday, a pre-charge conference with the judge and my orthopedic witness.

At dinner I pick at my food and pretend to be engaged with my children while thoughts of cross-examinations, evidentiary issues, summations, jury charges and whatnot fill my brain. My wife is not fooled, having seen this routine many times before. I try to work right after dinner but a fierce thunderstorm forces me to shut down the computer and spend more time with the kids. And that is a good thing. For all of us. Storm passes, kids get tucked into bed, and I return to the home office. A better printer and a small copy machine would be nice to have.

Next up, the orthopedists take the stand.


-----------------------------------------------------------

Addendum -- The full series of posts:

• Trial Blog, Part 1 (Bronx Trial Assignment Part)
  

• Trial Blog, Part 2 (Jury Selection Starts)
  

• Trial Blog, Part 3 (We Finish Jury Selection)
  

• Trial Blog, Part 4 (The Trial Starts)
  

• Trial Blog, Part 5 (Dueling Orthopedists)

• Trial Blog, Part 6 (Defense Experts)

• Trial Blog, Part 7 (Summation and Verdict)


Synopsis of the case at my firm's website.

Labels: Trial Practice