November 17th, 2016

10 Years of Blogging (A Retrospective, Part 1 of 2)

ny-personal-injury-law-mastheadI started this blog 10 years ago today, absolutely clueless about what I would do with it.  I just liked to write and figured this would be a good arena to take oft-times complex subjects and break them down to their easy components. (The Purpose of the New York Personal Injury Law Blog)

After putting up that first little post I remember telling my webmaster about the six hits I got from that post. I found readers so quickly! He told me they were Bulgarian spambots.

Since then I’ve appreciated something that I didn’t appreciate back then: That the practice of law, even in a small niche like mine, has an extraordinary breadth.  There was no real reason to limit myself to local judicial decisions, or trial practice and tips.

And so I have ranged far and wide into the subject of attorney marketing and ethics, Supreme Court nominees, tort “reform,” bar exams, confidentiality and privilege, insurance fraud by the insurance industry itself, and the First Amendment.

And I’ve written about running a few times, because it’s my blog and I get to make the rules.

Among the few rules that I actually try to follow:

  1. No personal attacks. There is a difference between tearing into someone’s argument and an ad hominem attack;
  2. No gratuitous coverage of local incidents where people are likely to hire lawyers due to injuries;
  3. No self-aggrandizement, or this blog would look like an advertisement, and worse yet, be dreadfully dull; and
  4. Try hard not to do “me too” posts that merely repeat the news/thoughts of others.

Along the way of writing 1,400+ posts, I’ve had over 2M+ page views, and have stumbled into the pages of the New York Times, Wall Street Journal and Washington Post, among many media outlets. The NYT ripped off one of my stories, and the WSJ figured out how to do so also.

I’ve written a few op-eds and appeared in editorials. I’ve done television interviews, given lectures, and appeared on the sides of busses in a NYC Marathon ad.

This humble little site has been viewed in the White House, Supreme Court, Justice Department and CIA, and been seen in 200+ nations, according to Google Analytics. I’ve been sued twice for defamation, and been threatened several other times.  The blog was part of the inaugural class of the Law Blog Hall of Fame run by the American Bar Association, along with just nine others.

In other words, it’s been a bit of an adventure. As I sit here typing, I can’t keep from humming along on what a long strange trip it’s been.

Today and tomorrow I’m going to reach back into the archives to link to some of my favorite posts. And when I say favorite, I don’t mean the ones that received the most number of hits. I mean the most fun to write, or ones that I thought important regardless of what others thought.

Because if you don’t enjoy the experience of writing (regardless of whether you do it well), or believe there is a point to what  you are doing, then you shouldn’t bother blogging. You’d be miserable, and worse yet, your words would suck. If you’re not inspired to write, it will be abundantly clear in the finished product.

And so, without further ado, Part 1 of some of the babies I enjoyed birthing:

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees — This 1997 post hits my list because the suit was brought by a big white shoe firm, and the firm utterly screwed up the simple act of drafting a complaint. And they did so on behalf of a big shot judge for a suit destined to attract media attention. Lesson for laywers: Bigger law firm does not mean better, and if you don’t know what you’re doing, ask.

Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court — Nine years ago a medical blogger decided to live-blog his own malpractice trial, and it was painful on many levels. His posts and the lawsuit attracted very wide attention at the time in the legal and medical blogosphere, and ultimately landed on the front page of the Boston Globe. Lesson: Don’t write anything you’re afraid to see on the front page of the paper.

Who Sits Jury Duty (The Turkewitz Beer Test) — Jury selection is an art. Since I’m not a great artist, this is the way I do it. Your mileage may vary.The Bubbe Maisse Report (aka “Judicial Hellholes”) – Every year the tort “reformers” come out with a “report” to declare judicial hellholes. The problem? It’s merely a collection of favored anecdotes. Does the press care? What do you think?

Supreme Court Grants Cert in “Fantasy Baseball” Case; Three Justices Recuse Themselves Due To Participation in High Court League — I had the idea to write this 2008 post about a month in advance of April 1st, then kept adding to it. And adding. And adding.  I loved writing it, and hoodwinked a few folks. And the premise is still good regarding the circumstances by which SCOTUS judges should recuse themselves.

It was 20 Years Ago Today — Lessons from an around-the-world backpacking trip I took in 1988-89.

Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules? — I had a problem when New York amended its attorney anti-solicitiation rules: How do I write about those rules in practice after a calamity, without it looking like its a covert way of using this blog to solicit? This Miracle on the Hudson splash landing by Captain Sully solved that problem for me, and I’ve been writing on ethics, advertising, marketing and solicitation ever since. The splash landing also had a few other benefits.

As Seen On Oprah! (Kinda, Sorta, Almost) — Back in 2009 Oprah wanted some x-ray images that I have for a piece on medical errors by Dr. Oz.  Her staff proved to me that Oprah succeeded despite them. I just enjoyed writing this, OK? Do I really need another reason? (Side note, Diane Sawyer had no problem striking a deal with me a few years later.)

Your Bar Exam Answer Sheet Is Gone — Now What? — This fun little post about the time my bar exam results vanished keeps getting hit, as bar examiners invent new ways to give test takers a little extra shot of anxiety.  Good preparation for life, I say. And it spawned a series of subsequent posts on bar exam horror stories. If you has the misfortune to stumble on this while prepping for the test, you’re welcome.

The SCOTUS Nominee and the Tissue Box Test -– Supreme Court nominations are always important (too important), and this is my gripe on the lack of judges with real world experience dealing with individual clients.

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? — A post that the Times ripped off a month later, without attribution, and forced a response from the White House.

turkewitzturkeysuit

Do I look lawyerly?

Five Years of Blogging (And Happy Thanksgiving) — A little explanation as to why I do what I do, given on the 5th anniversary of this blog. While in a turkey suit. And since that particular day happens to be on the immediate radar, I think it’s time to dig that suit out of the basement.

Blawg Review #134 (NYC Marathon Edition) – Back in the day, Blawg Review was a thing, a weekly round-up of the best that the legal blogosphere had to offer. So I was delighted that so many bloggers elected to tell me what they were writing about that week while we ran the NYC Marathon. Oddly enough, I was able to coerce more bloggers to come to my house to meet Arlo Guthrie at Thanksgiving, and got The Bogeyman to come with me to the homes of bloggers on Halloween, in a couple of subsequent Blawg Reviews.

Tomorrow, some more posts as I continue to naval gaze at my little creation.

 

November 10th, 2016

Can Trump Can Be Presidential?

djt_headshot_v2Can Donald Trump be presidential? My feeling, based on his past conduct, is no. So this post is about how Trump can win (some) people over who despise him and believe he is completely irredeemable as a human, let alone as a leader. And profit while doing so.

It starts with the Supreme Court.

As I type, there are protests in the streets. Worse than displaying racism, misogyny, nastiness and hatred, he has displayed complete incompetence on matters of public policy, both foreign and domestic. You have heard them all by now so there’s no reason to repeat them.

So how does someone be presidential in such a circumstance? And I don’t mean act presidential, but actually be it?

It starts by taking the Supreme Court off the table when it comes to partisan politics.  It is a shame that we as a nation have allowed ourselves to sink to this level, where every nomination becomes a blood-letting and Americans have begun to lose faith in our courts as an institution.

The issue, as the stalled Merrick Garland nomination has shown, has nothing all  to do with the qualifications of the person. It only has to do with “the other side” having made the nomination.

Remember, as I write, that Antonin Scalia was approved by the Senate by a vote of 98-0, and Ruth Bader Ginsburg by a vote of 96-3. So it wasn’t always this way.

Here’s the thing — both supporters and detractors will ultimately benefit from both of these ideas.

The first is for Trump to recognize that if  Republicans can hold up the Garland nomination, then Democrats can do that to any of his. What goes around comes around.  Karma, and all that crap. Screaming hypocrisy at Washington, D.C. will only result in people shrugging, “So what else is new?”

Having recognized that his own nominations can be torpedoed (as well as anything else he proposes), acting presidential entails telling Republican senators that held up Garland that Americans are sick and tired of stupid political games, that he has come to Washington to actually get stuff done, and therefore re-nominates him.

Since Trump fashions himself as a maverick willing to dump on Republicans if need be, and since this will also make any future nominations sail far more easily through the Senate, it would not only be savvy, but presidential. It would be a giant step toward taking the ugliness of what we have seen, both in Washington and during the campaign, and stopping it dead in its tracks.

I have zero expectation, of course, that Trump is capable of doing this. But if he did, it would force people to take a second look and make folks wonder if the office of the president is capable of changing him.

The second way to take the Supreme Court off the table is by advocating term limits on the court. The reality is that we now live much longer on average than we did 100 years ago, and judges with lifetime appointments can be expected to sit for longer. That means each seat becomes more valuable, and more bitterly contested. Along with that, presidents now try to pick younger, and therefore less experienced judges, to sit longer.

But if the judges were term-limited, this dilutes the power of any one particular seat,and minimizes the political significance of any one appointment. At the end of judges SCOTUS terms, they would still be judges, but they would simply go down to Courts of Appeals or District Courts of their choosing.

There are already various formulations for this floating around — I make no claim to originality here. And it has support on both sides of the aisle.

On the legal side, Article III states that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” There is nothing in there that says a previously approved trial or appellate judge can’t take a temporary appointment to the top court. They would still be judges. And even if my simply formulation wouldn’t pass muster, we could still amend the constitution to take care of it.

You know what people would call such a move? Presidential.

Can Trump do such things? Unlikely. Would he force people who utterly despise him to reevaluate him? Yes.

Would his presidency, and his ability to get other stuff done, be enhanced by acting this way? You bet.
————
Elsewhere:

The New Nine: Make The Supreme Court Legitimate Again (Simple Justice)

Why Donald Trump Must Nominate Ted Cruz To The Supreme Court (Joe Patrice, Above the Law)

 

November 3rd, 2016

Billboards, Regulations and Safety (Do the Bureaucrats Have a Point?)

nys-road-signsWhen the political season rolls around we often hear lots of blabber about “too many regulations.” I call it blabber because rarely do the nay-sayers of “regulations” explore why they were created and what benefit (if any) they may be to society.

So let’s do one, because the news item caught my eye as funny.

It seems that New York has created a whole slew of illegal road signs. From my local paper:

Gov. Andrew Cuomo’s administration dotted New York with 514 highway signs touting its tourism programs despite a federal ruling explicitly prohibiting the state from doing so.

Documents obtained by the USA Today Network’s Albany Bureau show the Federal Highway Administration has repeatedly notified Cuomo’s administration over the past three years that the signs violate federal and state law, which contain strict rules for what can and cannot be displayed on major roadways.

But the state Department of Transportation and Thruway Authority appear to have ignored the warnings, rapidly expanding the signage across the state while federal officials continued to voice concerns.

Oh dear. Illegal road signs? What kind of madness is this? WHO CARES WHAT THE DAMN SIGNS LOOK LIKE!?

Apparently, “Some of the signs have non-conforming symbols, while others violate sign lettering and other standards.” And the feds get to have their say because those roads are federally supported.

“Non-conforming symbols.” Yes, that is what this appears to be about.

And so we cut to the method to the madness:

“Simple signs make for safer journeys. That means using signs that are easy to identify, comprehend and understand in a matter of seconds as you are driving.”

That’s right. It’s really about distracted driving. Anything non-confonforming means extra time the driver is looking at the sign and not the road.

Of course, it doesn’t mean that all officialdom is doing it right, and you shouldn’t take this post to mean that.

For example, in 2007 I drove down this road in talking about road signage, when the Port Authority in its infinite wisdom contemplated allowing Geico to put up signs touting driver safety. In the George Washington Bridge toll plaza. One of the most vehicle-crowded spots in the country. The signs, which would distract drivers from the cars in front of them, would tout driving safely. Really. Some things are so stupid they’re beyond parody.

Think about that the next time you hear someone holler about “unnecessary regulations.” Was someone trying to make a buck off it? Or was it, perhaps,  created by bureaucrats who were not looking to justify their existence, but simply understand the repercussions of their actions?

 

November 1st, 2016

Trump and the Threat of Legal Sanctions

Trump Free speech

An old graphic, because Trump is a repeat offender.

Today we once again turn to Donald Trump, the One Man Bar Exam. Specifically, as to how he might be sanctioned in New York should he bring a frivolous defamation suit here.

Quick background: To absolutely no one’s surprise, Trump threatened to sue the New York Times two weeks ago for defamation because it reported the news. Specifically, it reported that women had stepped forward to assert that he’d sexually assaulted them.

He then went on to assert that he would likewise sue the bevy of women who have stepped forward to talk about the assaults they claimed.

Now comes Ted Boutrous of Gibson Dunn and Crutcher to say that he will defend anyone Trump sues. For free. And he likely has 100 lawyers around the country willing to pitch in their services. There is no shortage of lawyers who would gladly take Trump’s testimony and delight in obtaining liberal discovery about him and his manner with women.

In a discussion on how Trump would get destroyed if he were dumb enough to bring such a suit, Boutrous writes at Politico regarding sanctions:

If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.

Now I don’t actually think Trump will sue. I think he did this solely to intimidate others from coming forward, so that they would think, “I don’t need this shit.” It’s a classic case of intimidation.

But if he is irrational enough to ignore the advice not to sue, and he brings the action in state court in New York where he lives, I’m here to tell you the legal mechanics of how such a sanction could come to be.

Since I’ve been sued twice for defamation over blog posts here, in addition to being a personal injury attorney who routinely brings lawsuits, I have a pretty good prospective from both sides of the -v-.

Since I think the case is an absolute slam dunk against Trump if he sues a media outlet I’m going to leap ahead and go straight to the issue of sanctions.

I’ve written about this stuff before. After Trump brought a dumb defamation claim against Univision, and sought $500M in damages, I laid out the case against him. Then I wrote an April Fool’s gag, complete with fake judicial opinion, laying out the case for sanctions.

In supporting the motion for sanctions, the court might consider Trump’s prior acknowledgment that he brings frivolous suits, as he stated to the Washington Post:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

While New York doesn’t have an anti-SLAPP statute, much to my dismay (my NYLJ op-ed is here), and has a judicial culture against sanctions, any lawyer dumb enough into letting his arm be twisted into bringing suit may well look to New York’s state court as the place to sue.

So these are the four places to look for sanctions in a New York action that I can conceive — two of which I have never seen happen —  assuming the judge bucks the judicial culture against awarding them:

First:   CPLR 8303-a: This provides for an award of mandatory costs and fees up to $10,000 for making a “frivolous” claim. In order to meet this definition of frivolousness under this statute, a court must find either that

(1) the “claim … was commenced, used or continued in bad faith, solely to delay or prolong, the resolution of the litigation or to harass or maliciously injure another”; or

(2) “the claim … was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

Note that this is per claim, so that if Trump brings suit with multiple claims, it is 10K per claim, not per lawsuit. It’s a nice multiplication factor to use against the vexatious litigant.

Second:  Then there are the court rules, specifically, 22 NYCRR § 130.1–1, wherein a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. (22 NYCRR § 130.1–1[c][1–3].)

So essentially we have a statute for commencing a frivolous suit and a court rule for conduct. The one for conduct has no limitation.

Third:  This is for an angry judge, who wants to buck the judicial culture against sanctions, and try to use the logic used by the federal courts, wherein courts retain an inherent power to sanction, “to manage their own proceedings and to control the conduct of those who appear before them.” Chambers v. Nasco.

New York judges already have the power to dismiss cases and award attorneys fees, but how far beyond that is an open question. (See, New York’s Court of Appeals in 2014 in CDR Creances SAS v. Cohen, in the context of fraud on the court, with discussion of federal court decisions.)

A judge angry with an abuse of the courts with such a frivolous suit by a wealthy individual might easily expand the Chambers v. Nasco rationale to New York, and it could easily be upheld in such a circumstance.

And I would argue that a sanction should be commensurate with Trump’s wealth, to insure that it has the necessary impact. Let’s fact it, a $10,000 sanction for someone that claims to be worth “in excess of $10 billion” is not even a rounding error for the accountants.

Fourth: If Trump brings suit, there is a 110% chance of him placing a ginormous, stupid number claim for damages in the complaint (even though he may well be libel-proof).  You are, quite simply, not permitted to do that, as it would explicitly violate CPLR § 3017(c), which prohibits ad damnum clauses (the monetary damage clause) in personal injury cases. It reads, quite simply:

In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

Now there are only two possible reasons for a plaintiff to put such a thing in a pleading, given that this law was passed in 2003. First, that the party deliberately violated the law in the quest for press, in the hopes of embarrassing someone with headlines. Second, that the lawyer is ignorant.

While it has never been done before, to my knowledge, the sanction was urged by New York’s late guru of civil practice, Professor David Siegel as a way of enforcing the law against those that willfully violate it.

Finally, if I were writing the brief, I would make damn sure to point out that Trump is a vexatious litigant, and that if the court refuses to sanction then it should expect more of the same. Again. And again. And again.

 

October 13th, 2016

The Spitballer and The Know-It-All

Hillary Clinton as a kid (actual photograph, previously unreleased)

Hillary Clinton as a kid (actual photograph, previously unreleased)

As some of you have noticed, this election isn’t about politics. It’s about two kids from middle school that we all knew.

The bookworm sat in the front row, did her homework on time and all the time, and raised her hand to answer every damn question.

The other kid never did his homework and sat in the back of the classroom firing spitballs at the front row.

The know-it-all, goody two-shoes, bookworm spent time after school helping others.

Donald Trump as a kid, previously unreleased photograph

Donald Trump as a kid, previously unreleased photograph

The spitballer spent time stealing lunch money and pushing kids on the playground.

The know-it-all took advanced placement classes when she got to  high school.

The spitballer went to reform school.

Fast forward roughly 55 years. The know-it-all is a policy wonk whose idea of fun is to spend Saturday nights reading briefing books on Syrian history. The spitballer is an entertainer who likes to spend his Saturday nights assaulting women.

Both kids now want to be President. Both kids claim they are good decision-makers.

Here’s the thing about making presidential decisions: They are all difficult, or they wouldn’t be on the President’s desk. And no, pardoning turkeys at Thanksgiving for crimes they didn’t commit doesn’t count as a decision.

The President is forced to decide between one option that is awful and one that is worse, and needs the wisdom to figure out which is which, and understand that there are still a thousand shades of gray between the two.

Decisions like this: Trying to solve the 10-sided Rubik’s Cube of Syria that involves Assad, ISIS, “moderate” rebels, Iraq, Iran, Turkey, Kurds, Saudi Arabia, the U.S. and Russia.

Or trying to prevent war in the South China Sea over an area claimed by multiple nations, one of whom happens to be nuclear armed China.

We know that one is cool under intense pressure. The other wakes up at 3 am to pick fights with former beauty queens.

Who do you trust to make those decisions? The spitball kid or the know-it-all?

Here’s the thing: Even the know-it-all is going to screw it up some times due to the enormous complexities of the situations and the unknowables. If presidents get it “right” 75% of the time, I figure they’re doing pretty damn good.

And then Presidents have to deal with their failures, by analyzing the actual facts of a situation, to the best they can actually be ascertained in real time, and changing course if necessary. That means acknowledging an initial error. In other words, it’s not just tactics, it’s an issue of ego.

So there are really two issues here:

  1. Who is more likely to make the right initial call in a complex situation?
  2. Who is more likely to acknowledge error, own that error, and make the adjustment?

I don’t usually use this blog to discuss politics, unless it involves tort “reform,” but this issue is too big to ignore.

I don’t know about you folks, but I’ll take that bookish kid in the front row with her hand up every time, whether I like her or not. She may not get it right all the time when the problems are so complex the teacher doesn’t know the answer, but she sure as hell will have a better batting average than the spitball kid.

Given that this will involve war and peace and actual dead bodies, this kinda matters.