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.

Soccer, Arguing and Lawyering

BrandiChastain

Brandi Chastain after scoring the winning goal in 1999 Women’s World Cup.

As I follow the World Cup with one eye, I stumbled across a letter to the editor in the New York Times sports section, and it left me scratching my head. What the devil was the writer thinking when he sent this in, and why did the NYT bother to publish it?

Since the letter makes an argument, and this is what lawyers do, I wanted to add my two rupees on what not to do when lawyering.

We start on the futbol soccer pitch with the fact that extra time gets added to the standard 90 minutes to account for delays of the game, such as players taking a dive trying to get the ref to call a penalty. As Geoff Foster from the WSJ puts it:

All too often during matches, seemingly fit men fall to the ground in agony. They scream, wince, pound the grass with their fists and gesture to the sidelines for a stretcher. Some of them clutch a limb as if it was just freed from the jaws of a wood chipper.

But after a few moments, just as the priests arrive to administer last rites, they sit up on the gurney, shake it off, rise to their feet and run back on the field to play some more.

Foster does an analysis of the worst offenders of the flopping game, calling the extra minutes “writhing time.” Personally, I prefer “Flop Time.” Your mileage may vary.

And the issue devolves very quickly to this:  No one but a ref with a watch really knows exactly how much time is left on the clock. The New York Times wrote about this in: In Time Warp of Soccer, It Ain’t Over Till … Who Knows? Apparently, I wasn’t the only one wondering:

Imagine if an N.F.L. coach never knew when to call for the last-second pass, or an N.B.A. star had to guess when to throw up his desperation half-court shot.

Such situations would be unthinkable in other sports, but vagaries of time are the norm in soccer. Games do not end when a clock expires, but only when the referee decides they are over.

Soccer’s elastic definition of time means that no player on the field, no fan in the stands and no announcer on television has any earthly idea as to when the last kick of the ball will come.

(Don’t worry, we’ll get to the lawyering part in a moment. Stay with me here. This time I have a point to make.)

This article didn’t sit well with Thomas Jandl of Washington, who wrote in to the Times in a letter published in yesterday’s sports section. This was the guts of the short letter, with its logical inconsistency:

In baseball, football and even the more free-flowing basketball, coaches prepare and then call certain plays. In soccer, the flow of the game is unpredictable. Players make split-second decisions about their runs, passes, shots or tackles at virtually every moment. As a result, using a stopwatch to determine how much time was wasted or when exactly a game should end makes no sense.

The part about not using a stopwatch –in a game that has a clock — is a complete non-sequitor to comparisons of the game to other sports. It fails the rules of logic. As lawyers, we need logic.

The most common of logical arguments is probably the ancient syllogism. “If this is true, and that is true, then such and such must follow.”

Thus, in a brief, a lawyer might frame the issue with these major and minor premises to lead the court to the obvious answer:

Major premise: According to the statute, the defendant had x days to assert the affirmative defense.

Minor premise: The defendant failed to act within x  days on that affirmative defense.

Therefore the affirmative defense was waived.

But that is not what the writer to the NYT did, which is why it’s worth analyzing. He produced, and the NYT printed, the non-sequitor.

The letter instead, has these concepts:

Major premise: Soccer has a clock with 90 minutes plus extra time.

Minor premise: Soccer is wonderful because the flow of the game is unpredictable.

Therefore a stopwatch makes no sense.

If a judge saw this flow of logic from a lawyer, there is an excellent chance the lawyer would lose whatever argument s/he was trying to make. Now I might not be the world’s best writer, but I know enough to try to make logical arguments and avoid those that make me look silly.

The Times gets a gazillion or two letters each day. Why its editors chose something so logically empty is  beyond me.

File this under Legal Writing.

Amazon’s New Phone, Marketing and Lawyering

AmazonBezosPhoneSo Amazon.com introduced a new phone yesterday. And what does it do? It allows you to point it at some knick-knack you might want to buy and Amazon tells you how much you can buy it for from them.

What is really does, of course, is give yet more information to Amazon and its partners as to your every thought, whim and desire. What does it do for the consumer? Not so much. You can already go to their website, after all, and see what they have.

Here is the problem, which should have been obvious, if it wasn’t already with the big scandal over Edward Snowden and the NSA spying on us: People hate to be spied on.

Google, which started out with a mantra of “Don’t be evil” loves to collect information on you. So too does LinkedIn, which seems to like snooping through your contacts, then using those names to send out spam.

Lawyers should learn from this: Because this is everything you should not do.

Lawyers provide a service; our clients are our mission. When retained, we are supposed to do the job we were hired to do as diligently as possible, not use it as an excuse to find yet more clients. The client comes first.

We’ve seen a few examples in the past, of course. One example was a Chicago criminal defense lawyer using his potential retention by Lindsay Lohan as an excuse to give a press interview. We’ve seen it also with lawyers that place stupid ad damnum clauses in Complaints hoping that they can get their names in the paper.

Except it isn’t about the lawyer. It’s about the client.

So watch Amazon and Google and LinkedIn and learn from them about the stuff you should not be doing.

Order in the Court! (And a Judicial Brawl)

Boxing GlovesIt isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.

As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:

Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”

The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.

The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He  refused to waive and asked for a trial date.

Tempers flared with that very short interaction, the two of them charged to the back hallway,  you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”

Here is the short video — I found a version without commercials:

Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)

But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.

The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.

But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.

One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.

What’s more, when the judge uttered the now-(in)famous words, ”If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.

Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.

I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.

My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.

When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).

If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.

The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.

This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not  made in the hallway behind the bench.

Elsewhere:

Judicial thuggery: FL judge assaults public defender (A Public Defender)

The Heat of the Well (Simple Justice)

Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)

Judge Beats Up Public Defender (Above the Law)

 

You want me to violate what law?

imposter

Who’s hiding behind that Google ad?

It isn’t often that someone emails me out of the blue and asks me to commit a misdemeanor. So I guess this wasn’t just another day.

Welcome to another edition of:   outsource your marketing = outsource your ethics. Today, perhaps, we can add to that equation that you might end out surrendering your money, license and liberty as well.

The email came to me from a Utah digital marketing firm called Lead PPC, from its CEO Grant James. I get pitches from marketeers all the time (“first page of Google!!!”) and generally just delete before reading, but I look sometimes to see if there’s any new scam under the sun.

The pitch was simple: The company would use the names of other personal injury attorneys as keywords for Google and my name would pop up in an ad. In other words, they want me to trade on the names of my “competitors” (a/k/a friends and colleagues).  This was the emailed pitch:

By staying away from the expensive $100+ cost per click keywords, we get right to the good stuff that is cheap, targeted, and needs help now.  Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them.

Whoa.  Now I may not always be the sharpest knife in the block  – just ask my kids —  but I do know that trading on the name of someone else is, what we call in legalese, a big, fat, hairy, ugly no-no. This is New York’s Civil Rights Law §50, also known as the right to privacy (and elsewhere, in various forms, the right to publicity):

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

And in Civil Rights Law §51, there is a private right of action, and this includes both compensatory and punitive damages. In other words, I could be sued by the people whose names I’ve appropriated. And unlike other suits against me, this one could actually have merit.

In addition to the prospect of criminal and civil problems, there is also the prospect of action against my license under the Code of Professional Responsibility for false and deceptive conduct (Rule 7.1(a)(1)), implying that the better-known lawyer is associated with my firm (Rule 7.1(c)(2)) and using “hidden computer codes that, if displayed, would violate these Rules” (Rule 7.1(g)).

Grant James - LeadPPC

Grant James, CEO of LeadPPC

Figuring  that my understanding of what he suggested might just, perhaps, be the result of a poorly written email, or maybe that I didn’t understand the technology, I replied to Mr. James seeking clarity:

Hi Grant.

I read through your email and didn’t understand something:

Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them. 

What does this mean?

Simple enough, right? But his response was to make clear that I had it right the first time, that this was a dishonest, misbegotten, bastardization of legal marketing. He responded by giving me the names of prominent Texas trial lawyers he had misappropriated:

Hey. Yeah sorry if this was a little vague or confusing.

An example would be like in Dallas and Houston where we spend most of our budget on terms related to Jim Adler, Brian Loncar, ijustgothit.com, radlaw, and other terms for competitors.

What happens is that people hear a radio commercial and they can’t remember the website, so they search for what they can remember about the lawyer.

So if a guy searches for Brian Loncar, we know that they were most likely in an accident. If we rank for #1-2 on PPC, especially mobile, they click on us and call in.

A prospect typing in the name of a competitor term as opposed to “personal injury lawyer” is a much hotter prospect and further down the buying path. Additionally, these terms are much cheaper and less competitive than the broader terms everyone is bidding on and pushing up the prices.

The strategy works best in larger cities where law firms are advertising heavily on radio, tv, etc.

Texas, we have a problem.

Leaving aside the marketeer for a moment, what lawyer would do such a thing to another? I wanted to know, but since I’m in New York the Google ad words didn’t pop up in my market when I searched.

But, funny enough, I happen to know ace Dallas criminal defense lawyer blogger Mark Bennett. And Mark has written his fair share of postings about shady marketing tactics.

Screen Shot 2014-05-21 at 11.20.02 AM

So he Googalized those more prominent names that Grant James had kindly told me he had misappropriated, and up popped the website (txcarwreck.com) of attorney Ben Abbott in the Google ads.  You can see one of the to the right, where Brian Loncar was Googled. Bennett has screen shots of others.

You will notice that Bennett searched only for the name, and didn’t add lawyer, car accident, or any other popular buzzword.  Just the name. And up pops Ben Abbott’s ad.

As it happens, swiping the name of another person in order to exploit it is also a problem in Texas. It sure looks like Ben Abbott can be sued, and I’m guessing Grant James and his SEO company as well.

Now I’m also going to guess, simply because I fancy myself a kind and beneficent person, that Grant James is utterly ignorant of the law. I think I’m being charitable when I wrote that he probably knows that swiping the names of others to trade on them is a pretty scummy black hat tactic, but that he doesn’t know the legal ramifications. Or he knows but just doesn’t care.

But what would be the excuse of attorney Ben Abbott?

While I know that black hat marketing techniques go on, and have written about them in the past, I never really guessed it would come at me in such a bold and obvious way.

Who, I wanted to know, would he target? So I asked and he responded:

I would need to work together with you to put together a list of 15-20 of the top competitors in NY.  It would be the same guys who advertise on radio, tv, and billboards.

So then I moved the conversation to problems with his scheme, with a nice open-ended query to get his thinking, to see how he could justify this:

I don’t know, Grant, the whole thing about using the names of other lawyers to promote myself doesn’t really sound kosher.

What came back was a very long email about how Google operates and what Google allows and doesn’t allow and Google this and Google that, as if Google was a law of some kind and could be waved in front of judge and jury as a defense.

BenAbbottTexasLawyer-Standing

Ben Abbott, Texas lawyer

To Ben Abbott, who should know better, I asked:

Mr. Abbott:

I’m writing an article about your using the names of other Texas trial lawyers as part of your advertising. This includes Jim Adler and Brian Loncar.

When their names are Googled, your ad pops up. Would you care to comment about why you think this is acceptable marketing?

Thank you.

He hasn’t written back yet. If he does, I may update this.

This is, by the way, part of the Wild West of marketing. A year ago in Wisconsin, under presumably different laws, a court held that stealing someone’s name to use as a hidden advertising keyword might past muster in a civil suit, as in that state (unlike New York) there was apparently no statute. There was no word in Eric Goldman’s Forbes column about the ethical implications. (Update: Under Florida law, this is not an ethics violation. I think is should be.)

But I think the message is pretty clear that, once again my friends, when those marketeers come-a-callin’, you had best remember that they become your agent when you hire them for marketing. Marketing is part of attorney ethics. If you elect to outsource your marketing then you have outsourced your ethics. And reputation. And possibly your bank account and liberty.

It sucks to be a test case.

McDonald’s Coffee Case, 20 years Later — And Why It Is Still Important

Stella Liebeck v. McDonald’s, a/k/a The McDonald’s Hot Coffee Case, continues to be in the news despite the fact it was tried 20 years ago in New Mexico. 20. Years. Ago.

It was in the news two years ago with the documentary Hot Coffee.

And it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis wasn’t enough.  Even I’m bored with the subject, and this type of case fits in my wheelhouse, and is especially important to anyone that tries cases in front of juries.

Was this a frivolous suit because hot coffee is supposed to be hot? Or was it a perfectly reasonable case of an excessively dangerous product (scalding coffee) with an inadequate warning as the jury found? Should the case be better known, and summarized, as Hot v. Scalding?

You know what? My opinion doesn’t really matter. And yet I talk about it every time I pick a jury. Every. Single. Time.

Why? Because people form opinions based on headlines they see in the papers, be they digital or paper. People don’t form opinions based on run-of-the-mill cases because those hear about them. Only the outliers make headlines (which is often compounded by lousy reporting).

And so I bring the subject up, time and again, asking how people feel about this ancient and (in)famous case. I don’t try to change their minds. I don’t try to argue that case. And that is my point.

All cases are different. We all know that intellectually, but it is the emotional part of the brain that lawyers need to worry about. No matter which side of the -v- we happen to be standing on, we want to know– we need to know — if there is some preconceived notion about the overall subject (lawyers, litigants and lawsuits) that the person might have.

If a potential juror is going to have an opinion or emotional reaction (that they will admit to) it is likely that the McDonald’s coffee case will bring it up.

I’m bored with the actual details by now, yet I talk about it all the time. And so should you if you are picking a jury.

It doesn’t matter what you think. It only matters what they think.

A Botched Execution (And A Good Lawsuit?)

lethalinjectionYou’d have to be living under a rock not to know about the botched Oklahoma execution of Clayton Lockett. Oklahoma, in its infinite wisdom, figured it would be just fine to give an experimental combination of drugs to its death row inmate.

It didn’t work out so well, as a vein apparently burst, he didn’t get the first drug that was supposed to knock him out, and he suffered mightily before having a heart attack and dying. Or at least that is what they are claiming.

But the part that really jumped off the pages of the stories was this: When it became evident that Lockett hadn’t been rendered unconscious by the first drug, and was in pain, prison officials lowered the shades between the witnesses and the condemned. They didn’t want anyone to see what The State was doing.

And anytime The State acts in secret, people should be alarmed. Especially when there is absolutely no reason for secrecy.

It is that very secrecy, in fact, that allows elected officials and their prison appointees to claim that the condemned don’t suffer when given various drug cocktails. Because if they suffered, then there would be an Eighth Amendment problem regarding cruel and unusual punishment.

The official timeline — or at least the first iteration of one, as none of the real witnesses in the execution chamber have actually testified — goes like this:

18:23  –  The drug midazolam was administered intravenously.

18:30 —  A doctor said Lockett was still conscious.

18:33  –  Lockett was unconscious, and vecuronium bromide and potassium chloride were administered.

18:42 — The shades for the witnesses were lowered. The official timeline does not say why, but there are accounts elsewhere that Lockett had appeared to be conscious in the previous few minutes.  From the New York Times: “Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.”

18:44 – 18:56  ”The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both,” according to the timeline.  The director of the corrections department then asked whether Lockett had been given enough of the drug combination to kill him, and the doctor said “no.”  ”Is another vein available? And if so, are there enough drugs remaining?” the doctor was asked, according to the timeline. The doctor’s answer to both questions: “No.”

18:56 Execution called off

19:06 Lockett pronounced dead.

Missing from the timeline? Any acknowledgment that Lockett was in pain, contrary to the claimed protocol.

I know, you are shocked, just shocked, that the official timeline whitewashed what the condemned man was doing or trying to say.

Secrecy. It has surrounded the death penalty since we stopped public hangings. It now consists primarily of trying to make an inherently violent act — killing — antiseptic, and therefore palatable to the public. A firing squad would be quicker and more efficient, but then the killing becomes more real.

But the veil of secrecy, I think, can now be broken. Dropping the shades in front of the witnesses won’t work this time, despite wiping it from the official timeline.

Because he suffered in a way that was unintended, as others have  before him, the Estate of Clayton Lockett now has a simple claim for personal injury due to the negligence of prison officials, in addition to a civil rights claim for cruel and unusual punishment. This would be for the 24 minutes between 18:42 – 19:06.

Such a lawsuit, of course, really wouldn’t be about the money. It’s about lifting that veil of secrecy. Because of the suffering, the estate lawyers, if they brought such a suit, would be able to question each and every person in that execution room. And all of the people that ordered the drugs, devised the drug protocol, medically supervised the procedure and delve into all the ways it was tested (or that it wasn’t).

And so much more.

No, it really wouldn’t be about the money at all. It would be about ripping down the veil and using the disinfecting qualities of sunlight so that people can actually see how The State’s machinery of death works, to see what happened and why it happened.

And citizens can see exactly what they voted for and paid for.

Shooting the Messenger (I’ve Been Sued Again) – Updated

Michael J. Katz

Michael J. Katz

Last year a judge eviscerated an orthopedic expert in open court for being a liar. A legal blogger reported it. And now that expert has taken his wrath out on the blogger by suing him for defamation.

And it turns out that I’m the blogger that reported it, and last week suit was filed against me to the tune of $40 million. This is the story.

You remember Dr. Michael Katz, don’t you? He’s the defense expert I wrote about last year that was subjected to the deeply lacerating comments of Justice Duane Hart, who called him a liar from the bench. And when I say he called him a liar, I mean that he did it many, many times and used the word “perjury” to describe the testimony.

The judge also, apparently, used the phrase “Typhoid Mary” in addition to “a liar and a thief,” and invited the attorneys in the courtroom to spread the word that Dr. Katz had been caught lying, according to the suit.

Just to be clear, as we start here, I had no role in that litigation.  Rather, the boundaries of the suit concern my reporting on what transpired in the courtroom and offering my opinions on its significance.

The basis of Justice Hart’s wrath against Katz was a medical-legal exam that Katz did on behalf of a defendant in a personal injury suit. Two issues arose from it.

First, that the brief nature of the physical exam — an orthopedic exam of the shoulder that lasted, according to the transcript of the proceedings, one minute and 56 seconds, but you can view it yourself here on YouTube — conflicted with Katz’s claim that his customary and usual exam was 10 to 20 minutes. The surreptitiously recorded video also shows a couple minutes of history being elicited and the doctor asking what hurt.

Second, and apparently far more important to Justice Hart than the time it took to do the exam, is that he didn’t believe Katz did all of the tests he claimed he had done in that brief period. How do we know that was the most important thing to Justice Hart? Because Katz quotes him saying so in the Complaint.

Katz, according to the judge, makes millions of dollars doing these so-called “independent” medical exams, or IMEs.

I reported on those court proceedings and some of Justice Hart’s lacerating remarks, as well as a subsequent court appearance before him, and reported the judge’s statements that he was going to refer Katz to the District Attorney for criminal investigation, to the administrative judge to commence civil contempt proceedings and to the Office of Professional Medical Conduct to investigate action against his medical license.

That’s a lot of whoopass.

Dr. Katz concedes in his Complaint that Justice Hart made heaps of cutting comments about his integrity, and has now agregated them into one place. This includes comments Justice Hart made both on the record and, allegedly, off.

In Katz’s recitation of facts in the Complaint — a stark re-telling of a jagged wound being ripped open by a judicial gavel — it is asserted that Justice Hart said (¶75)…:

off-the-record, that Dr. Katz’s career doing IME work might be over, calling him a “no good liar,” and told him to retain a lawyer.

And that (¶ 77):

He threatened Dr, Katz with criminal prosecution and imprisonment multiple times, off-the-record, throughout the morning.

And this (¶79):

The doctor’s career doing IME’s might be over. If he gets caught in a lie on something that’s material at trial his future use to anyone is useless, correct? That will follow the doctor forever.

And that Justice Hart said (¶82):

I would strongly suggest you do not do anything because you’re in more trouble than you think. It’s probably that your career doing IME’s is over. It’s possible, unless this case is settled, that I might be taking more – the attorneys have a duty basically not to do anything with regards to the district attorney. If I find out or if I even suspect something is going on I have a duty to get in touch with the district attorney and getting in touch with the district attorney is not a good thing for you in this case. Understood?

And that this occurred in the presence of Katz’s criminal defense attorney who subsequently appeared (¶84):

Justice Hart announced, in open court, but off- the-record, “Your client is a liar and a thief.”

And this (¶95):

During the court appearance, despite stating that he would seal the record in exchange for a settlement, Justice Hart actively invited other attorneys who were present, or even in the courtroom on unrelated business, to order copies of the transcript in order to “spread the word” concerning Dr. Katz’s alleged perjury.

And this (¶98):

Justice Hart referred to Dr. Katz as “Typhoid Mary” and accused him of “getting caught red-handed in an out-and-out lie,”

And this (¶99)

he gave a laundry list of tests that he did…Did he perform those tests in whatever time he did [sic] that he testified to? No.”

And this (¶120):

Off-the-record, Justice Hart continually pressured Dr. Katz to state on the record he would no longer practice ”medical-legal” examinations, repeatedly berated Dr, Katz, stating that “his career was over,” and even stated that defendants’ counsel wanted to “tear [Dr. Katz] a new asshole.”

And this (¶128):

Again counsel, it is not the time so much if the doctor thinks he can explain the time. It is not the time problem. It is that there are tests that he testified to that he didn’t do. That is the perjury.

And this in trying to persuade him to retire (¶128):

I unsealed the record. Everybody from now on when he testifies as to the tests that he performed, it is always going to be questioned from now on. After about a month or two, nobody is going to go near him anyway. So he is not giving up much. What he is giving up is me referring it to the District Attorney and to the Administrative Judge. I would think that he wants to consider it again. Nobody is going to go near him.

And this to his criminal defense lawyer (¶130):

It is that the tape shows that he didn’t do the tests that he spent a considerable amount of time talking about that he did. That is the perjury. Yes, he didn’t do the tests. It is not just me saying it. It is not just the plaintiff saying it. The defendants are saying it too. Does your client really think if the insurance industry or some of the insurance companies that hired him before when they find out he lied, do you really think they will go near him?

In other words, the damage to Katz’s reputation were based on the exceptionally sharp comments of Justice Hart. The was brought on, according to the judge, by Katz’s conduct.

But Katz can’t sue the judge. Hence the title of this post, Shooting the Messenger, for I was the one to report it.

I ask you dear reader, is this not newsworthy? Especially in light of Katz’s claim that he has ”testified in countless personal injury and medical malpractice cases as an expert witness, most often for defendants, over the past twenty years” (¶10) and that he was “one of the premier expert witnesses in the field of orthopedic medicine” by the time this case came up (¶41) and that he was “a highly regarded expert witness in the area of orthopedic medicine” (¶44).

So, if you take his self-description at face value, yes, the trauma to such a person’s integrity by a judge would certainly seem to fit any definition of newsworthiness.

Katz also claims in his lawsuit that “there is no indication” Justice Hart carried through on his statement that he would refer him to the D.A. or to the Office of Professional Medical Conduct (¶22). Maybe he did, maybe not, I have no way of knowing since investigators don’t generally blab about what they are investigating. And apparently, Katz doesn’t know for sure either.

But then, quite oddly, he repeated this mantra of the judge allegedly not subsequently reporting. He repeated it many, many times. As if the judge’s conduct subsequent to publication was important. This is a sample from the Complaint:

149. Turkewitz also falsely stated and implied that Dr.Katz was being investigated by the Attorney General’s Offîce and the Office of Professional Medical Conduct despite the fact there was no evidence of any such investigation when Turkewitz published his blog posts.

Given that Katz had already quoted the judge saying he was going to do exactly that — report him to the D.A. and Office of Professional Medical Conduct — it is bizarre to complain that I reported it. How can it be defamatory to report on what a judge said?

This is one of the many comments that Katz himself quotes of Justice Hart on the issue (¶124):

Let the record reflect that I gave Dr. Katz the option of and I would institute a special proceeding to retire from the medical/legal business. Retire at the time and he has declined. What I am now going to do, I am going to order a full transcript of everything, the trial and the subsequent proceedings. I will present that to both the administrative judge of Queens and the District Attorney. I would recommend to the District Attorney that they explore prosecuting Dr. Katz for perjury.”

This dumping of crap into a complaint indicates a person scrambling to find an issue somewhere, someplace.  And it reminds me of a post I wrote last year, on the importance of lawyers saying “no“ to potential clients. Lousy defamation cases happened to be one of my examples.

Vetting a new case is important. The fact that a potential client has hurt feelings because a judge said mean things about him, and it was reported, is not enough to sustain a defamation lawsuit. Not in the United States, anyway.

In my postings I offered not only my opinions on why the potential legal troubles were significant to Katz, but more importantly, offered my opinions in a series of posts about why I thought this was one piece of evidence of pervasive insurance fraud that I believe is ongoing by the insurance companies themselves. I’ve called for an investigation by New York State Attorney General Eric Schneiderman or NYS Financial Services Superintendent Benjamin Lawsky (as he oversees the insurance industry).

You may consider these calls for an investigation my petition for redress of grievances.

And now I’ve been sued for my efforts. That’s right, sued for reporting on proceedings in open court and offering my opinions.

first-amendment-719591I think that most people with even a rudimentary understanding of our First Amendment would know that such a suit is verboten. And certainly anyone that has gone to law school must know this. Because both the freedom of the press and the right to petition for redress of grievances are two our First Amendment freedoms.

And lest the part about a free press be unclear, New York has its own Civil Rights Law § 74 that makes it even clearer, though Katz and his counsel seem to be blissfully ignorant of it:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.

The Complaint makes some other patently idiotic allegations, such as this one (¶25):

Turkewitz attempts to generate interest in his site by posting seemingly provocative and/or scandalous material.

Even if was true true — and the ABA Journal apparently didn’t think so when it kept picking me for its Blawg 100 and selected me for its Blawg Hall of Fame, based on being “a great source for news and commentary” — what difference would it make?

Is the citizenry supposed to curtail opinions because a writing is provocative? Can anyone else hear Thomas Paine laughing? Has anyone seen cable “news” shows lately or listened to talk radio? Rush Limbaugh (and a gazillion others) would shrivel up and die if he couldn’t be provocative or scandalous.

So where is the gravamen of the complaint against me?  It is by this type of allegation (¶27):

Turkewitz falsely stated and implied, among other things, that Dr. Katz had committed perjury, fraud and was guilty of racketeering. Turkewitz’s blog posts were intended to create the impression that Dr. Katz had been charged with and/or convicted of criminal perjury and other crimes which would make him unfit to act as an expert witness.

The problem with the allegation is that I never said he was convicted of anything. And Katz’s lawyer knows that, which is why there is no quote of me ever writing such a thing. But it does get repeated many times, as if repeating it like some talismanic incantation will magically make it truthy.

And then there is this one (¶28):

Turkewitz’s blog posts go so far as to expressly compare Dr. Katz to a ”convicted felon” and a “prisoner.” Dr. Katz was not charged with or convicted of any crimes.

Nope. Missed again. There is a reason there is no real quote from me. Because this is what I actually wrote about witnesses in general (with reference also to Dr. Robert Israel, who has his own problems from medical-legal exams):

Defense attempts to preclude Drs. Katz and Israel from testifying in future trials seem doomed to fail. They are, after all, eyewitnesses to injuries.  If a convicted felon came upon a car accident shortly after it happened and saw injuries, would he be precluded from testifying simply because one side or the other didn’t like his testimony? If he saw the injuries a month or year later, would he magically be precluded? Are prisoners precluded from testifying? Making matters worse for those that hired these doctors over the years is that they are responsible for creating them as witnesses.

While the medical-legal examiner is an expert that can give opinions, s/he is also a fact witness as to what transpired on a particular day. A fact witness is a fact witness. It matters not if the witness to a collision is a nun or a felon, or the witness is a doctor hired to defend a lawsuit. The only question is whether the witness is available to testify.

And my opinion is shared by my co-defendants, Paul Kassirer at defense firm Lester Schwab.  Kassirer is quoted in the Complaint with having sent my initial posting about Katz via email to other defense lawyers with this comment (¶212):

“More to the point, even if he is eventually arrested and convicted of perjury, NY law is clear that he is not legally ‘unavailable’. Accordingly, whoever has retained him will not be entitled to another IME. As long as he was licensed and was competent at the time of the exam, he can testiff and therefore is not ‘unavailable.’

And this is all backed up by New York law, as Katz is certainly not the first witness to experience legal or credibility issues. On February 27th of this year, Justice David Schmidt in Brooklyn dealt with this exact issue regarding Katz, and concluded that the defense attempt to preclude his testimony must fail. In Atchinson v. Metropolitan Enterprises, he wrote, after describing the comments by Justice Hart:

“[t]he defendants’ concern that the plaintiff may impeach the examining physician’s credibility … [is] not a sufficient basis to compel a second examination” (Carrington v Truck-Rite Dist. Sys. Corp., 103 AD3d 606, 607 [2d Dept 2013], citing Schissler, 289 AD2d at 470Futersak v Brinen, 265 AD2d 452 [1999]). The instant facts are analogous to the cases of a public attack on the professional credentials of an IME physician; such cases hold that instances of compromised professional integrity do not warrant a subsequent IME (see e.g. Giordano v Wei Xian Zhen, 103 AD3d 774, 775 [2013] [fact that examining physician was arrested and surrendered medical license subsequent to examination and note of issue filing does not justify additional examination]; Carrington, 103 AD3d at 607 [same];Schissler, 289 AD2d at 470 [fact that examining physician was subjected to professional discipline subsequent to examination and note of issue filing does not justify additional examination]; Futersak, 265 AD2d at 462 [same]). Defendants advance no authority suggesting that the present situation concerning Dr. Katz is distinguishable because he has been accused (as recorded in a court transcript) of perjury.[5]

In the subject heading, I wrote that I’ve been sued “again.” I was sadly, dragged into the Rakofsky v. Internet fiasco. My response in that suit was to say, “go shit in a hat and pull it down over your ears,” though I did offer the pseudo-legal latin version for those that want lawyers to speak pretentiously: vade et caca in pilleum et ipse traheatur super aures tuos. 

In that post, I also detailed the other times I was threatened. I’ve also defended another defamation suit with a take-no-prisnors attitude. It has never ended well for those that threatened or sued.

Was filing this suit a dumb thing to do? Yes, on multiple levels.

First, if Justice Hart didn’t previously report this matter to the D.A. or the Office of Professional Medical Conduct, this suit may act as a reminder.

Second, Katz has now further publicized the vicious tongue-lashing that he received from a judge. I learned about it from a New York Post reporter, and that call was followed up by a Daily News reporter, both the day after it was filed. Who alerted them?

By suing the messenger, Katz invites not only repetition of the claims he has catalogued, but enormous backlash from free speech advocates. There are a great many people who don’t take kindly to frivolous defamation claims and the chilling of free speech that often comes with them. There is a fair chance that those who did not previously know about Katz, will now learn.

Updated 5/28/14: Justice F. Dana Winslow has ruled on a motion in another case about whether Katz can be cross-examined on Justice Hart’s conclusions. The answer is, yes he can. The matter is Graser v. Dimeo, where Katz claims to have done a 45-minute defense medical exam.

This was the reasoning:

It is well settled that, for impeachment purposes, a witness may be cross-examined with respect to prior immoral, vicious or criminal acts which have a bearing on the witness’s credibility. Badr v. Hogan, 75 NY2d 629. The Court of Appeals has extended the rule beyond the “immoral, vicious or criminal’ categories to include prior conduct that simply demonstrates the witness’s “untruthful bent,” such as using an alias [People v. Walker, 83 NY2d 455], or publishing books advocating cheating [People v. Coleman, 56 NY2d 269].

The cross-examiner must have a reasonable basis in fact for asking questions about prior misconduct, and must do so in good faith. People v. Kass, 25 N.Y.2d 123; People v. Green, 272 A.D.2d 341. If the witness denies the prior misconduct, the cross-examiner may press the witness further, but is not permitted to introduce extrinsic evidence to refute the witness’s denial. Id., at 635.

In the case at bar, the Court finds that plaintiff has a reasonable, good faith basis, to cross-examine Dr. Katz regarding the truthfulness of his testimony in the Bermejo Action. Dr. Katz’s prior conduct need not have resulted in a formal adjudication of wrongdoing. It is enough that facts exist which tend to show a propensity for untruthfulness; that is that Dr. Katz gave false information in circumstances in which he was required to be truthful. See People v. Walker, 83 NY2d at 461. Plaintiff’s counsel may ask Dr. Katz about his testimony in the Bermejo Action and about the underlying facts which suggest that his testimony was false. Counsel may not, however, call other witnesses or introduce extrinsic evidence (such as the video recording), to refute Dr. Katz’s answers.

Although such inquiry may be prejudicial to defendant, the Court notes that if it weren’t, it would be of no use to the plaintiff. The question is not whether such inquiry is prejudicial, but whether it is unfairly or unduly so. The Court determines that it is not. Where, as here, the inquiry has a factual basis, and bears on the question of the witness’s credibility, it is fairly and properly allowed. See Castillo v. 62-25 30th Avenue Realty, LLC, 74 AD3d 1116 (allowing defense counsel to question plaintiff’s treating physician regarding underlying factual allegations that led to suspension of his license to practice medicine); Spanier v. New York City Tr. Auth., 222 AD2d 219 (allowing defense counsel to question plaintiff’s treating physician about prior allegations of improper billing).

The Court thus finds no basis to bar the cross-examination of Dr. Katz regarding the proceedings in the Bermejo Action. The nature and extent of such cross-examination is left to the discretion of the trial judge. See Badr v. Hogan, 75 NY2d at 634.

Elsewhere on the suit:

Simple Justice (Scott Greenfield):

This has nothing to do with the fact that Justice Hart found Katz to be a liar, of course, but it’s all that Turk’s fault because he posts “provocative and/or scandalous material.”

Legal Satyricon (Marc Randazza):

If Dr. Katz dared to file suit in Nevada, California, Oregon, or a growing number of other states with meaningful anti-SLAPP statutes, his litigation campaign would likely end post haste. It would be thrown out of court, and the judge would bruise his ego in the shape of the defendants’ attorneys fees and costs. But this is not California, or even Nevada – it is New York. Without meaningful relief, we are left only with the disinfectant of cleansing light shone upon those who file such censorious lawsuits.

Passover and the Boston Marathon Bombing

Exterior, Kings County Supreme Court (Brooklyn) — Photo credit, me.

Once again, a confluence of two seemingly unrelated events. On the one hand, today is the first day of Passover. On the other, it is the one year anniversary of the Boston Marathon bombing.

Passover celebrates breaking away from tyranny and bondage and the establishment of freedom and the rule of law. While celebrated by Jews, we recognize its universal symbolism. So too do others, as we see the Ten Commandments displayed in courthouses around the country as an example of one of the first descriptions of written law.

The bombing, by contrast, represents both anarchy and totalitarianism. Anarchy from the acts of violence themselves, and (to the extent news stories are accurate that this was an act of militant Islamism) the use of that anarchy to promote theocracies where religion reigns supreme and freedom is restricted.

I have a place in my heart for the Boston Marathon, having been privileged to run it in 2009 and again in 2012. This year it is run with a still-fresh wound, despite the brave faces many victims wear.

But this will not be the first time a marathon is run in the wake of a terror attack.

In 2001 the NYC Marathon was run just two months after the World Trade Center fell, and the fires were still burning. As we crested the Verazzano Bridge at the one mile mark of the race’s dramatic start, you could see the hole in the downtown skyline.

There were some that didn’t show up to run that year, concerned over reports in the week before the race that a bridge was the next suspected target. Rumors and fear ruled the day.

But 25,000 did show up. And the streets were teeming with people that day for a massive public event for which adequate protection could not be assured. And the reason for the lack of protection was simple, if you want to live in a free society, you can’t “protect” 26 miles of roadway through the streets of New York.

We knew that back then. People with guns or backpacks with bombs could emerge from the crowd of 2 million at any time. Runners and spectators alike had bulls eyes on their chests. But it was important to be there and to celebrate New York and to say that we would not live our lives in fear. Cowering was not an option.

BostonStrongAnd it will be important again next Monday when the 118th Boston Marathon is run. The crowds will be thick and the runners stoked, with each participant — runners, volunteers and spectator alike — tossing caution to the wind to be there. They know that others will be watching them on this great stage.

The police will try to protect parts of the race course, of course, as they do in New York and all major sporting events. But the reality is that the security is a thin veneer. There is always a way in a free society to wage an attack.

Freedom is like that. It is hard to gain, as recent events show in the Middle East and now Ukraine. In biblical times it took us 40 years of wandering in the desert to get there.

It’s easy to become complacent about freedom and to take it for granted when there is no challenge to it.

But when the challenges to freedom come — and terror attacks are certainly such challenges — it feels good to see people willing to put themselves out there to celebrate it, and thereby protect it. Spectators will, quite literally, be manning the barricades.

Cowering is not an option. #BostonStrong

A $9 Billion Punitive Damages Verdict in Actos Drug Trial (How much is too much?)

punishmentWe once again see a whopping punitive damages verdict and need to discuss: Just how much is too much? For the reasons that follow, I think that a ratio of punitive:compensatory damages of 100:1 or greater are sustainable based on current opinions from the Supreme Court.

At issue for the moment is a $9 Billion punitive damage award against Japan’s Takeda Pharmaceutical and Eli Lilly this week. The case concerned the diabetes drug Actos, and the manufacturer’s failure to warn that it increases the chances of bladder cancer. There was also a $1.5M compensatory damage award.

The punitive award spanking was no doubt influenced by the defendants’ destruction of documents. Juries tend to hate it when people destroy important documents.

It isn’t my objective to analyze the details of the trial, which I did not follow, only to go back and try to forecast what the judge might do with the punitive damage award, and more importantly, what the appellate judges will do if the matter doesn’t settle.

But there really isn’t a straight answer. In the most significant Supreme Court ruling on the subject, State Farm v. Campbell, the majority opinion by Justice Kennedy gave three conflicting statements on the subject. He cited first, for instance, to the older case of BMW v. Gore, that:

[W]e concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.

For reference, BMW v.Gore dealt with punitive damages against a car dealer that repainted a new car that had been damaged, but had failed to disclose it. The verdict was $4,000 in compensatory damages. But the jury also awarded $4,000,000 in punitive damages as it was the policy of BMW to do this.

For this purely commercial transaction, the Supreme Court felt that due process was not served by such a large award, as the defendant didn’t have notice of this potentiality. And with that, the court established three guideposts to determine if a punitive award was constitutional or not:

  1. The degree of reprehensibility of the conduct;
  2. The ratio between punitive award and plaintiff’s actual harm, and
  3. The legislative sanctions provided for comparable misconduct.

Now lets return to the court’s State Farm decision, because, as I noted before, there were three seemingly contradictory statements. Having first quoted the 4x amount as being reasonable, Justice Kennedy then went on to write:

[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.

So now Kennedy is at at a 9:1 ratio. But just as Gore was a commercial transaction, so too was State Farm v. Campbell. In that case Campbell caused a terrible auto collision, and State Farm acted in bad faith in defending its insured. At issue was not the personal injuries of the victims, but the contract between State Farm and Campbell.

Perhaps, since a physical injury was not truly at stake in State Farm, or perhaps just to cobble together a majority, Justice Kennedy then went on to make a third comment on the permissible extent of a punitive damage award, knocking out both the 4x and 9x ratios he had previously described:

Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where “a particularly egregious act has resulted in only a small amount of economic damages.”

Following State Farm, it had become accepted wisdom among many that the Supreme Court would only allow a single digit multiplier, notwithstanding that last quote, or perhaps a bigger multiplier in only the smallest of cases.

But I never believed that the “single-digit ratio” was  a real line in the sand. One reason is that the Supremes eventually let stand a 97:1 ratio in Philip Morris v. Williams, a cigarette case with an $821,000 compensatory award and a 97.5M punitive award that went up to the Supreme Court on multiple occasions.

Now some would argue that letting something stand without deciding the issue (SCOTUS granted cert on the case’s third and final trip to the high court and then later dismissed it as improvidently taken) is not the same as affirming a lower court decision.

But here is something else: That 9:1 ratio nonsense from State Farm is confirmed as nonsense by looking at the conduct of  two members of the 6-3 State Farm “single-digit” majority. First, a review of the oral argument the second time Philip Morris v. Williams came before SCOTUS  (p. 30, line 5) finds this statement by Justice Breyer:

…the more severely awful the conduct, the higher the ratio between the damage award and the injury suffered by this victim in court. And if it’s really bad, you’re going to maybe have a hundred times this compensation instead of only ten times or five times. So — we take it into account, the extent of the harm that could be suffered, in deciding what that ratio should be. That means it goes to the evilness of the conduct.

So Justice Breyer seems not to think too much of that 9x single-digit formulation.

And then there is Justice Stevens, also in the 6-3 State Farm majority. When SCOTUS sent Philip Morris back to Oregon for a redetermination of punitive damages based on jury instructions, Justice Stevens dissented. He was also OK letting that 97:1 ratio stand.

Since both Stevens and Breyer were part of the 6-3 State Farm majority, it is clear that there was most definitely not a majority of justices willing to stick to single digit multipliers for a personal injury case.

So what will happen in the Actos litigation? I think that a punitive damage award of 100x or greater is in the cards if the plaintiffs satisfy the court that the conduct was reprehensible (the second guidepost in the BMW v. Gore). And I also think, given the significant document destruction that led to that whopper of an award, that satisfying that element won’t be too difficult.

Assuming that the $1.5M in compensatory damages aren’t touched, I think that ultimately a punitive award of $150M+ is sustainable under current law.

Allen v. Takeda Pharmaceuticals North America Inc., 12-cv-00064.

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