July 28th, 2016

Trial Lawyer Tips From Politicians

Watergate jury, by John Hart. The original hangs in my office.

Watergate jury, by John Hart. The original hangs in my office.

I’ve been watching the political conventions off and on these past two weeks, and it occurs to me that there are a couple good tips in there for trial lawyers.

Two speeches stood out to me as good lessons.

The first was Bill Clinton. Why? Because he is a master story-teller. This isn’t about whether you agree or disagree with his politics, but the manner in which he engaged listeners with stories. He wasted no time in starting with a good old-fashioned boy-meets-girl story and kept coming back to it.

Once upon a time — September 2007, which is 63 years ago in dog years and 200 years ago in internet years —  I quoted Mark Twain on this subject, in discussing the need for the trial lawyer to engage the jurors and tell a story. And the most important thing to do is make sure the listener doesn’t fall asleep. You need to engage the listeners.

The second was that of Mike Bloomberg, who I think gave the best speech so far. How can that be when he stands where Bill Clinton just stood as well as both Obamas?

Because he bluntly stated that he wasn’t speaking to the people in the hall and that he often disagreed with Hillary Clinton. That is enough to make any viewer sit up and take notice (and to get many boos from those in attendance).

The fact that he wasn’t a typical cheerleader, and has supported both Republican and Democratic candidates, gave him credibility to address Trump supporters. He wasn’t there to simply yell Rah, Rah, Hillary. He audience was, perhaps, the most important one of all: The undecideds. That meant there was no reason at all to pander to those seated in front of him.

There is a powerful point here for those that stand in the well of the courtroom. When you give up issues to the other side (that you know you will likely lose anyway) your other arguments gain credibility with judges and juries. If you are respected, your arguments are more likely to find a receptive ear.

But not everything works. Because, for many parts of many speeches, people were merely preaching to the choir. Rousing up the folks in the convention halls. While this may be good to motivate those in attendance to work hard over the next few months, they do little to reach the critical undecided vote.

Tim Kaine was also important, but for altogether different reasons. He started out waving his hands around over his head and wasted all of his initial time with shout outs to his friends.

And that is an awful idea. The moments that people are most likely to listen to you, and most likely to remember, are the opening couple minutes of your remarks. And the closing ones. This is the concept of primacy and recency. The most important moments that should never be wasted are the very start and the very end.

After a few minutes of listening, he lost me, and I went upstairs to write this post. I heard later that the middle of the speech was amusing with his parody of Donald Trump, but I never heard it live.

Given that so much time, money and effort is put forward for these conventions to communicate, it’s worth sitting up to take notice of not just what they say, but how they say it. And to remember that when trying to persuade a judge or jury.


July 16th, 2016

The Summer of ’16 (And it isn’t going well)

KijoBpBRT♫Summertime, and the living is easy.♬

So goes the song. It’s a time to relax at a beach, hike in the mountains, take in a few ballgames, or just kick back generally with family and friends. The practice of law slows down a bit, as lawyers, judges, witnesses taking vacations makes the scheduling of depositions and trials a “problem.”

And it’s the time of year for news organizations to hunt down “summer stories,” that are usually light, and frivolous, or are strictly local but the national news picks them up and runs with them. A story like Pokemon Go taking off like a bat out of hell, for instance, is classic summer fodder. To be followed by people getting hurt or killed due to aggravated acts of stupidity as they turn a blind eye to their surroundings and chase digital fantasies.

But not this summer.

Yesterday, a bloody coup attempt in NATO ally Turkey.

Just one day after a horrific terror attack in Nice, France.

Which had followed in short order the killing of five Dallas cops (on top of many shootings of black men by white cops).

Which had followed in short order the massacre at the Pulse nightclub in Orlando.

This is all interspersed with the continuing horrors of a civil war in Syria, bombings in Iraq and elsewhere that our news organizations pay scant attention to in relation to the significance of the damage done.

And, of course, a presidential campaign with one candidate seeming to do do all that he can to be racially divisive.

It makes it tough to write about personal injury law. I’ve wanted to, for sure, but each time I sit down at the keyboard I get sidetracked by the latest misery and lose my inspiration.

In my mind, for instance, I had a piece written in my head about the Tesla car on auto pilot that slammed into a left turning truck. Everyone wrote about the car, with few mentioning that the truck was making a left without the coast being clear.

The summer of ’16 is not shaping up well, my friends. Whether or not this goes down in history as a momentous time or not isn’t something I’m smart enough to say, but at the moment it sure doesn’t look good. No one will ever brand this the Summer of Love.

I could issue a little prayer that things get better, but such hopefulness will, in all likelihood, simply leave me disappointed. Another option is to simply disconnect from the digital world, under the ignorance is bliss philosophy, but that will not achieve anything either.

So if the blog is quiet for awhile, you’ll know why. It’s because I’m watching the news.


July 6th, 2016

What Risks Have You Assumed?


Franz Klammer was not involved in this incident, but he makes for great art work for the blog.

An interesting case yesterday out of New York’s Appellate Division, involving a skier that crashed into a snowboarder at the base of the bunny hill, badly injuring the boarder.

Most lawyers wouldn’t take such a case due to the assumption of risk doctrine.  I’ve discussed that before, as it often provides immunity to the one that caused the injury. Assumption of risk, as I described previously regarding an injured softball player, provides that:

a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

So wouldn’t that apply to a skier that clobbered another?  The defendant in Horowitz v. Chen moved for summary judgment on that basis.

Not so fast, said the appellate court. The defendant, it seems, was moving at 20 to 30 kilometers per hour (yes, that is the way it is written), and the plaintiff was standing in a crowd at the bottom of the beginners’ slope.

While participants in sporting activities may consent to the commonly appreciated risks inherent in a sport, the court said that doesn’t mean that they consent to “conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.”

The court noted that this occurred in or near a marked safety zone, and that the defendant skier was zipping along in this area despite “his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.”

The court also noted the extent of the injuries (not described in the opinion), writing that “in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.”

Now the important part, for New York practitioners. This case came out of New York’s First Department. (NY has four, for you out-of-towners, the First covers Manhattan and the Bronx.) In rendering its decision, the court cited to two other cases, one in the Third and one in the Fourth.

So this represents a little new ground on the subject area of assumption of risk. If conduct is “so negligent as to create an unreasonably increased risk” then the assumption of risk doctrine can be overcome, at least for the purposes of surviving summary judgment.

And last, just because I feel like it, the legendary 1976 Olympic downhill run of Franz Klammer:


July 1st, 2016

July 2nd: A Day to Celebrate Independence

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.

Each year I have used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing is memorialized on our Declaration of Independence.

John Adams thought that this was the day that 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.”

I see no compelling reason to re-invent the wheel and re-write  posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
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.


June 2nd, 2016

A Lawyers’ Listserv Gets SCOTUS Recognition


Sign inside the Supreme Court on Tuesday.

It came as a shock to everyone in our informal listserv group that was sworn in on Tuesday to the Supreme Court bar.

When we entered the building, we were asked what group we were from. Ummm, each of us stuttered, a group of trial lawyers from New York organized by Jay Breakstone?

“You guys the Rogues?”

Holy shit! The SCOTUS marshals and clerks knew the jokey name of our informal listserv!? No way!

We were at first startled and flabbergasted, then astounded and amazed. Our little group of 28 New York personal injury lawyers, plaintiffs-side only, walked up the interior stairs of the Court, following those clerks and marshals, who all knew we were “the Rogues,” pointing us in the right direction.

Rogue was the nickname bequeathed upon us 15 years ago, as local legend goes, when we banded together outside the confines and restrictions of any official bar association. A member of the “official” bar association listserv called us rogues for doing our own thing, and as one friend notes, “We took it and ran with it.”

The vast majority of us were solo and small firm practitioners, who simply recognized a need to share information as we litigated against significantly more powerful interests. If we were truly independent we could talk about any issue, and this was a win-win for all participants.

Mostly, this is the type of information that any hyper-local group of niche practitioners would want to share:  Can you believe that decision yesterday in Rogue v. Carrier? What are the skills and temperament of opposing counsel? Does anyone have information on Jane Expert?  Does Judge Jones skew toward the defense? And for god’s sake, it’s “Leave the gun, take the cannoli,” not the other way around.

In my first job out of law school, finding and sharing information wasn’t really an issue. Like most folks at medium or large firms I could just poke my head into someone else’s office, or chat at lunch, about a particular issue. Not so, however, for the solo practitioner.

Over the last 200+ years, lawyers have shared information outside their firms in a variety of informal and formal ways — perhaps at taverns over our first hundred years as a nation, and at formal bar association meetings and dead-tree publications over the second hundred.

And now as we soar through our third hundred years, we quickly share things electronically. The more knowledge we have, the better we can help our clients. Previously this information passed slowly, and now it passes instantaneously.

Such listservs exist all over the country, and likely all over the world. And while the existence of such listservs isn’t exactly a secret, the contents of the communications obviously are. If a lawyer wanted to share tips on opposing counsel Leo Drummond, for example, it might be helpful if Drummond didn’t know.

I first wrote about my particular group in 2008, in The Million Dollar Listserv, when knowledge of a change in the law was discussed and I was able to race to the courthouse to beat a filing deadline as a result — to the huge benefit of my client. The next time my group met at a big, informal dinner, I bought the first round of drinks. It was my way of showing appreciation to an extraordinary group of people who were helping each other.

Over time, our group met up both at continuing informal dinners as well as at formal lawyer functions, and we put faces and personalities to the names that were attached to our digital messages. The growth of the group then led to shout-outs at some of those bar functions. But the public discussion of actual details was, and remains today, absolutely verboten.

Many judges soon came to realize that this underground group existed, despite the lack of any address, phone, fees, formal publications or legal standing of any kind.

This change in how legal knowledge is shared was in full effect Tuesday in the Supreme Court of the United States as we saw the name of our informal listserv adorning the conference room door.

But wait. There’s more.

Because we eventually marched in to the courtroom for the motion to be admitted to the bar. Breakstone was called to the lectern. And Chief Justice John Roberts specifically spoke the name of our private little listserv in open court. From his perch on the highest bench in the land.

It’s kinda amazing to see a private listserv mentioned not just in open court, but being mentioned in this particular court.

When Justice Ruth Bader Ginsburg met with us afterward, her first question had to do with the Rogue list name. And Breakstone explained, on behalf of the group, of the need for small practitioners to band together to help level the playing field with the sharing of information.

There isn’t anybody that could have conceived, 15 years ago when the listserv was started via email exchanges, that this would have happened. But it did.

I attribute this to a confluence of events, including not just the advancement of technology but the recognition that all of us can benefit from additional knowledge when trying to represent a client. There is a need to share, there is a technology to do it, and the two met up quite nicely.

Ironically, court-watcher Dahlia Lithwick wrote in Slate yesterday about Tuesday’s proceedings. From her vantage point in the press gallery the day was a yawner, with the judges appearing bored out of their minds. She wrote in her lede:

Sitting in the press section at the Supreme Court this spring is a lot like sitting on the bridge of the Starship Enterprise when Captain Kirk has been forced to downgrade life support to minimum. Lights seem to flicker gently. Dazed reporters drift down the halls like tumbleweeds. On Tuesday, Justice Samuel Alito didn’t even show up for opinion announcements.

It’s funny how the same day and same events look vastly different when viewed through different prisms. She sees boredom while I see a centurial change in the way that lawyers acquire and share information.

It isn’t enough at this point, to simply tip my hat to my fellow Rogues. What is important, I think, is that each practitioner, especially the small firms in  niche areas, find (or create) that band of brothers and sisters to share your mutual knowledge and experience.

You never know where that need to share information may lead.