January 28th, 2016

Doctor Tries To Take Down Lawyer’s Blog Post By Filing Grievance – updated x2

Michigan attorney Steven Gursten

Michigan attorney Steven Gursten

Wow. Defense-medical exams and a defamation claim against a law blogger! Two of my favorite topics wrapped up in one ugly Michigan incident now ongoing.

Now you folks know I have a thing or two to say about doctors that do a lot of defense medical-legal exams. And you know I have a thing or two to say about BS claims of defamation, having been on the receiving end of a couple of moronic lawsuits.

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her. Like me, he thinks that many of the doctors that make these exams a staple of their practices are doing hatchet jobs on the injured plaintiffs in order to benefit the insurance companies.

(For a comic view of how one lawyer sees it, you can view this cartoon.)

The short version of today’s story is that Gursten’s client was hit by two trucks, and he asserts that the client suffered a traumatic brain injury, broken back, and other significant injuries. Dr. Griffen then did the defense medical exam (DME) — sometimes improperly called an independent medical exam (IME) — and issued a report.

Gursten then presented evidence and asked readers to draw their own conclusions as to whether Dr. Griffen committed perjury. In fact, by the title of his posting, you can see that this invitation to readers was his explicit intention:

Heading: IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

Subheading: How many thousands of innocent and seriously hurt people lose everything because of so-called “independent medical exams,” such as this example by Michigan psychiatrist Dr. Rosalind Griffin?

Dr. Rosalind Griffen, as seen during her video testimony in this matter.

Dr. Rosalind Griffen

He presented evidence that Dr. Griffen — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.

Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.

This presentation of evidence, and request that readers make their own determination as to whether Dr. Griffen committed perjury, occurred Nov. 13, 2014.

Thirteen months later, Dr. Griffen filed a grievance, claiming defamation, and asking that the Committee require the lawyer to:

  • “delete his outrageous posting”; and
  • “[R]emove the link to Google results for my name.” [I didn’t make that up, I swear. — ET]
  • Punish and sanction him for putting her testimony and her conduct under oath on the internet for people to read.

Gursten wasn’t cowed by the complaint and proceeded to put it up online this week in a new posting with this heading and subheading:

Heading:  Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?

Subheading:  IME doctor files grievance to suppress blog post and punish attorney for disclosing her conduct

Over the course of a very extensive follow-up posting this week, he provided many examples of differences between what the doctor claimed, and what he said actually happened. This is a sample, with much more at the original posting:

What Dr. Griffin claims James Fairley said. What James Fairley actually said.
“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)  “Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.”  (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))

In the text of the grievance, Dr. Griffen complains thusly about the original blog post:

Notably, it is the first item returned when someone uses the Google search engine on my name, thereby ensuring that it will be noted and read by individuals researching me or selecting a psychiatrist who will best meet the needs of the patient.

The problem, of course, is that Gursten merely provided the documents and video testimony, and pointed to various sections of them, while offering his opinions. He did what lawyers do: He presented evidence and asked the jury (his readers) to decide.

The doctor’s complaints that calling her “notorious,” or her exam a “hatchet job,” would be merely opinion. And opinion is not actionable under the First Amendment. It isn’t even a close call.

She also tries to make the complaint, unconvincingly I might add, that writing about her exam and testimony violates Rule 8.4 of Michigan’s rules of professional conduct which state that it is attorney misconduct to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

Since there is nothing dishonest or fraudulent about providing evidence and asking a series of questions about where that evidence leads, I don’t see how she can possibly prevail. Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice. I do it here all the time.

Why would Dr. Griffen — who happens to be a member of the very grievance committee to which she is complaining — file this?

Leaving aside the obvious possibility that she may have friends on the committee, the other possibility is that she tried mightily to find an attorney to bring a lawsuit, and that everyone told her “Are you shittin’ me?” though they may have been a tad more blunt. Then a year went by, the statute of limitations expired in Michigan, and she made this complaint feeling she had to do something.

And so she did. And now people out of state, who had never heard of her, are writing about her. Well played, doctor, well played.

(Pro tip: If you need to file a dopey defamation case, you might try Jonathan Sullivan at Ruskin Moscou Faltischek in New York. He’s the guy that brought Dr. Michael Katz’s pointless and doltish suit against me regarding an “IME” and testimony that Katz did. Who knows, maybe he wants to do it again?)

Addendum: More at Public Citizen, a small excerpt below. At the link are also case citations,  and a thorough exposition on the chilling effect that permitting such grievances has on free speech.

Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity).  It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations.  Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.

In discussing the Michigan’s Grievance Commission, in highly critical terms for allowing this to go forward and requiring a response from Gursten, Public Citizen’s Paul Alan Levy writes:

The Commission staff might well be hoping to exact an apology as Gursten’s price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin’s bluff and raised the ante.

Addendum #2: Scott Greenfield weighs in on Rosalind Griffin using a disciplinary complaint because an actual defamation case would fail, and the completely expected reaction (from anyone in the least bit savvy about the internets):

But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.

Has Dr. Rosalind Griffin ever heard of Barbra Streisand?  If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.

 

January 15th, 2016

30 Years Ago Today…

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

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

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

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

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

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

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

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

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

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

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

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

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

Make a clear record of the obstruction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

December 30th, 2015

Let the #BillCosby War Begin!

BillCosbyI don’t even have to look at Twitter to know what is happening given the announcement that Bill Cosby has been charged with aggravated indecent assault based on a 2004 incident.

On one side, those that defend him. On the other, those that want to flay him.

And they both share this is common: They have formed their opinions before any evidence has been introduced in a courtroom and before any juror has been able to evaluate any piece of evidence.

Nor will it matter to those staking out their ground. ‘Tis a magnificent piece of confirmation bias being played out now.

Confirmation Bias

Few will be likely to change their minds once evidence is actually introduced. Because everyone will want to be “right” and will seek out that which supports their own first impressions.

The public discussion and trial will follow the same course that white “subway vigilante” Bernhard Goetz did when he shot down four black teenagers in a subway in 1984. Protesters filled the streets outside the courthouse, some claiming he was a racist and others saying it was self-defense, with the protesters sharing one thing in common: None were in the courtroom listening to the evidence.

And it will follow the same track as the George Zimmerman trial, who shot and killed Trayvon Martin in 2012. First form an opinion based on your gut, the look for evidence to support that opinion.

Confirmation bias is in the air again. Can you smell it?

 

 

December 23rd, 2015

New York’s Judicial Diversity

NewYorkCourtofAppeals

New York’s top court, the Court of Appeals

New York has announced seven potential replacements for the Court of Appeals seat vacated by Judge Susan Read, who retired this year.  And New York’s judicial selection for its highest court — and the reason that I write — looks nothing like the potential nominees for Supreme Court of the United States.

As previously noted here when discussing Court of Appeals nominees, I want to see practicing lawyers (or judges that used to be practicing lawyers) get elevated to the top bench. I want to see the same at SCOTUS, using a method I called the “tissue box test,” but that is never seen.

There is a stark disparity in the origins our our state/federal judiciary, which I discussed in 2011 by showing where each of them attended law school. The line-up at the time looked like this on SCOTUS — and it’s tough to miss the homogenous nature of the Harvard/Yale lineup:

Chief Judge John Roberts: Harvard Law School
Antonin Scalia:  Harvard Law School
Anthony Kennedy:   Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg:  Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

But it looked like this on New York’s top court:

Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo:  Albany Law School
Susan Phillips Read:  University of Chicago Law School
Robert S. Smith:  Columbia Law School
Eugene F. Pigott, Jr.:  University at Buffalo Law School
Theodore J. Jones:  St. Johns University School of Law

And what does the line-up of potential judges look like to replace Judge Read? Like this:

Michael J. Garcia, attorney in private practice (Kirkland & Ellis LLP) – Albany law School
Hon. Judith J. Gische, Associate Justice, Appellate Division, First Department; – SUNY, Buffalo
Caitlin J. Halligan, attorney in private practice (Gibson, Dunn & Crutcher LLP) – Georgetown
Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Department – SUNY Buffalo
Benjamin E. Rosenberg, General Counsel, New York County District Attorney’ s Office – Harvard
Rowan D. Wilson, attorney in private practice (Cravath, Swaine & Moore, LLP) – Harvard
Stephen P. Younger, attorney in private practice (Patterson Belknapp Webb & Tyler LLP) – Albany Law School

One of the problems we currently have in SCOTUS selection is the part about them serving for a lifetime in the same seat. Presidents then try to pick young judges — late 40s or early 50s — that might sit on the bench for 20-30 years. Or potentially longer. With people living longer lifetimes, and slower turnover for a seat, the stakes have risen dramatically from the days the republic was founded. And there are plenty of people out there who think that should change.

Rather than the top court being the capstone of a long career, during which, hopefully, much was learned, it becomes the career itself and folks learn on the job.

But a 14-year term — which is what New York has — and a mandatory retirement age, leads to constantly changing seats. That leads to a different variety of judges, as we don’t have as much stake in any one judge as the federal equivalent.

While I limit myself here to an analysis of law schools — to the degree that this shows some variety — Scott Greenfield over at Simple Justice thinks there is not enough diversity, based instead on philosophy:

But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience.  And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.

There are many ways to view diversity, of course. Greenfield says that the lack of a criminal defense attorney or person with solo or small practice experience shows a lack of diversity. I, on the other hand, see the bar that SCOTUS has established with its Harvard/Yale fixation, and am happy to see that bar easily vaulted by people coming from diverse places.

This post isn’t about which New Yorker should sit on our high court, but rather, about the need for limitations on the power of any one individual. And that comes, in large part, from having a constantly changing dynamic bench from a diverse legal background instead of a stagnant one from a homogenous legal background. For the stagnant homogeneous ones attain too much power.

 

December 21st, 2015

Stanley Tessel (1929 – 2015)

A 60-year-old trial bag that I use, which I inherited from the firm of Turkewitz & Tessel

Way back in the day, students sat in classrooms in alphabetical order. So if your name was Turkewitz, you’d sit next to a kid named Tessel.

And so it was at Brooklyn Law where my father sat next to Stanley Tessel, who scared the crap out of dad with his incredibly organized notes, made with different colored pens.  My father, by contrast, has handwriting like mine, which my 5th grade teacher charitably called chickenscratch.

Stanley Tessel died on December 7th at the age of 86, having retired after 62 years of practicing law. He wasn’t just one of the preeminent medical malpractice attorneys in the state when it came to obstetrical cases and brain damaged babies, but was a pioneer as the field developed through the 1960s and 70s.

You see that photo of a trial bag to the right? It says “T & T” on it, which stood for Turkewitz & Tessel, the firm my Bronx-born father and his Brooklyn-born buddy formed a couple years after they graduated in 1952. That bag is about 60-years-old, and sits in the corner of my office, ready for my next trial. It’s held a lot of stories, including those from the days that the two friends did defense work for Professional Insurance Company of New York, defending doctors and hospitals in medical malpractice cases.

Tessel, according to my father, was an outstanding trial lawyer back in those days.

After Turkewitz & Tessel split up after 15 years — when Professional Insurance went belly-up — my father went on to lead the medical malpractice department at Fuchsberg & Fuchsberg while Tessel went over to Charlie Kramer’s law firm, which subsequently became Kramer, Dilloff, Tessel, Duffy & Moore.

If that name sounds familiar, it’s because the firm is one of top medical malpractice firms in the nation, now known as Kramer, Dillof, Livingston & Moore. Tessel, even long after he’d retired in 1989 and moved to Florida, would still fly up to New York to take the depositions of doctors in obstetrical cases. When the top firm in the nation has a lawyer flying in from Florida to take a deposition, you know the lawyer is good.

Chuck Silverstein, who worked with Stanley for years at Kramer Dillof, and with whom I shared office space for several years, wrote to me:

One of the things I remember most about Stanley was that he liked to talk about your father a lot.  He told me the law school story (related above), always with a big smile on his face.

At one point Stanley bought himself a Rolls Royce but realized it was a dumb thing to do and got rid of it. (ET – But before getting rid of it, he came by our house to give my folks a ride. My mother quipped, “It rides as nice as our Cutless!”)

Stanley used to love going to Harry’s in the basement of the Woolworth building.  He and I would sit at the bar and he would order two drinks and two shrimp cocktails and the war stories would flow.

The joke at the retirement party was that Harry’s would go out of business without him around.

At the party, a prominent obstetrician toasting Stanley said that “He knows so much about obstetrics, I’d like him present in the delivery room when my own wife gives birth.”

When I first started working at Kramer Dillof Stanley told me that I’d need a copy of Williams on Obstetrics.  I think he gave me his own copy since he basically knew everything in it already.

Stanley was a very generous man.  I think the term ‘magnanimous’ really sums him up — both professionally and personally.”

One day, many years back, Silverstein asked me to try one of the cases that Kramer, Dillof had worked up. This happens from time to time when there’s a manpower shortage and the judges are screaming at you to go pick a jury.

I cracked open the file and found handwriting that looked like it came from a typewriter — with analysis to match. In different colored inks. While I had never actually seen Tessel’s handwriting before, as I’d never worked with him, I recognized his work immediately based on my father’s stories.  And so I went on to take a verdict in a case my father’s old partner had worked up at a different firm.

Stanley Tessel

Stanley Tessel

A long obituary appeared in the New York Times this past Friday, written by his survivors. It recounted Tessel’s service in the Air Force during the Korean War, serving in Pusan as part of the Judge Advocate General.

While the obituary mentioned that he was entombed with full military honors by the Air Force Honor Guard, it failed to mention the time he almost got court-martialed. For working too hard.

It seems that the officers on the base would quit work at four and head over to the Officer’s Club for drinks. And Tessel’s office in the JAG was just across the way. And with Tessel-the-perfectionist working late, the light was always on.

(This late-night work came as no surprise to my father as he recounted the almost-court-martialed story to me, since in law school my father would quit a long day of studying at 7 due to exhaustion, while Tessel continued deep into the night even though he knew the material cold.)

So the other officers discussed this “problem” of Tessel working so hard and so late with Tessel’s superior, telling the boss it wasn’t right to make Tessel work that way. The commanding officer, in turn, told Tessel that maybe it would be a good idea to quit work at four like everyone else.

The court-martial risk came because Tessel thought this had just been a suggestion.

Not bad for a war story.