This is a repost — the message hasn’t changed, but I continue to run turkey trots in the costume. I’ve been doing that for 10 years now. And depending on how I feel, maybe I’ll even run a half-marathon like this. The cigar, however, has been updated. ———————— People in mixed families — some of whom voted for/against Trump — may be dreading Thanksgiving and seeing certain relatives.
But it isn’t up to me to tell you how to grow up and handle awkward and painful situations or deal with the Crazy Uncle (apparently it’s never a crazy aunt). If you haven’t figured it out yet, you are unlikely to learn how to do so here.
This doesn’t mean you can’t be thankful. As you likely should be, if you are reading this post.
The first time I did a Thanksgiving Day message, it was in the form of a Blawg Review, recounting the time Arlo Guthrie came to dinner at my house for a dinner that couldn’t be beat. That was 2009.
In 2013 I came back with this message to put away those little pocket computers, unless you wanted to use the phone function that some of them have to talk with those dear to you, but perhaps not so near.
I am now a blogger for 11 years. And this past Sunday I put on that turkey suit that decorates this post for a local 5K, and I’ll put it on again for another on Thanksgiving morning. Because I can.
The costume does not come with a trigger warning. So if I scare the bejesus out of someone — and oddly enough it does frighten some small children — they will just have to deal with it.
Running around in a turkey suit sure beats one of the alternative lives I could be having: Living in the anarchy and horror of Syria. Or suffering with the terrorism in France. Or Lebanon. Or Israel. Or Nigeria/Cameroon. Or Yemen. Mali. Iraq. Libya. Egypt. Afghanistan. And I’m only scratching the surface here.
There are many different ways to count your blessings. This is the way I want to do it. My original posting from 2011 is below.
Now you can see that I have a couple pictures here of me in a turkey suit, shot Sunday at a local Turkey Trot. And you might be wondering what the heck that has to do with blogging, or lawyering, or five-year anniveraries. And, you also might wonder if I’m nuts to put them up here, out of concern that it diminishes the seriousness of what I do for clients in the courtroom. Or that it might be seen by a potential client who will quickly hightail it elsewhere.
Glad you asked.
I see my fair share of human misery come through the doors with busted up bodies that shouldn’t be busted up. Anyone that deals with the consumer end of law will see variations on this theme, from divorce, criminal charges, bankruptcy, etc. And seeing those things gives me (and should give everyone) a greater appreciation for what we have. I know, from seeing it happen to others, that a car could blast through an intersection and instantaneously change my life and those of my family forever. Don’t say it couldn’t happen to you, because it sure happens to some people, who’s only fault might have been sitting patiently at a light. And it only takes a momentary lapse of attention on the part of a driver.
There is no limit to the number of ways that life could be quickly altered for the worse, and I’m not sitting in the middle of a war zone.
So I am thankful for each day that I get. And if I get the chance to dress up silly and run a 1-mile Gobbler race with a few hundred local kids, giving out gift certificates to a local cupcake shop for those that finish near my feathers, then yeah, I’m going to do it. And if I can have a few hundred adults in the 5K race chase the turkey, with a chance to win free entry into a little half marathon trail race I put together, well that is fun too. Community events are often like that. Fun. And it’s nice not just to participate, but to help create them.
In deciding to dress like a turkey for this event for the third year in a row — and with my name I’m the natural choice for this gig — I’m also mindful of Benjamin Franklin’s view of this particular fowl, as he advocated for it to be our national bird instead of the bald eagle:
For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.
I decline the opportunity to put on the “serious lawyer face” 24/7. You might see the suit and tie shot on my website, but you won’t see it on my blog. Here I get to let my feathers down.
I write this blog the same way I go through life. I try to enjoy it, while at the same time taking what I do for a living very seriously. I think that’s reflected in the 1,000+ posts that I’ve done. And yes, this is the same reason that I have for running the occasional April Fool’s gag.
This week is Thanksgiving. Look around you. Be thankful for what you have. And live each day to the fullest.
I hate to use Latin phrases in law, as it invariably sounds pretentious, but I’ll make an exception today. Carpe diem.
Ahh, I get to do a post on both running and the law! My sweet spot. Let’s have at it then, with the scandal roiling the running world and see how it fits into a legal framework.
Alberto Salazar was the world’s greatest marathon runner, winning New York three straight times from 1980-1982, and winning Boston in 1982 in an epic Duel in the Sun.
As a bona fide legend, he moved on to coaching, leading up to being the head coach of the vaunted Nike Oregon Project, training some of the best runners in the world.
This was not just any coaching facility, of course. Nike poured money into equipment and studies well beyond the means of any amateur, and most professionals, including the removal of oxygen from a room to simulate high altitude conditions, which can benefit runners. The Wikipedia synopsis:
In addition to the simulated altitude training, special software was used to monitor electrodes attached to the athletes, determining what condition they were in and how far or fast they could train. They used underwater and low-gravity treadmills. They also had a collaboration with Colorado Altitude Training (CAT), a company specializing in hypoxic athletic training, for their training equipment.
Mary Cain was one of his athletes. Born in 1996, well after Salazar had raced to greatness, she was arguably the best high school track star in the country. And a straight-A student.
She signed with Nike in 2013 and went off to Oregon to train with Salazar as a college freshman.
But she didn’t see the scandal coming. Nobody ever does.
In a video op-ed (embedded below) in the New York Times last week (I Was the Fastest Girl in America, Until I Joined Nike) Cain tells a harrowing story of her time spent with Nike and Salazar. She was directed to become thinner and thinner and thinner, and ultimately developed an eating disorder.
Much of her training was, apparently, the same as the boys. And therein lies a problem. Because boys and girls are physiologically different.
When girls get pushed into a boy’s training program they run the risk of their bodies breaking down. Because it has a negative effect on estrogen levels, which has its repercussions in bone density loss, among other problems. Bones become more susceptible to breaking. That is what happened to Cain due to Salazar constantly badgering her and trying to humiliate her into losing weight.
After months of dieting and frustration, Cain found herself choosing between training with the best team in the world, or potentially developing osteoporosis or even infertility. She lost her period for three years and broke five bones. She went from being a once-in-a-generation Olympic hopeful to having suicidal thoughts.
Nike and Salazar held themselves out as experts and specialists. Yet what they were doing was injuring the young women who had placed their trust in them. And not just Cain.
Kara Goucher, an Olympic distance runner who trained with the same program under Salazar until 2011, said she experienced a similar environment, with teammates weighed in front of one another.
Goucher went on to explain that, “When you’re training in a program like this, you’re constantly reminded how lucky you are to be there, how anyone would want to be there, and it’s this weird feeling of, ‘Well, then, I can’t leave it. Who am I without it?’ When someone proposes something you don’t want to do, whether it’s weight loss or drugs, you wonder, ‘Is this what it takes? Maybe it is, and I don’t want to have regrets.’ Your careers are so short. You are desperate. You want to capitalize on your career, but you’re not sure at what cost.”
How may others will come forward in this athletic version of #MeToo remains to be seen.
Cain’s seven-minute video op-ed describes the abusive system she was under. At 16 she got the call from Salazar and in college went off to train with him, in order “to become the best female athlete ever.” Instead, she says, she was physically and emotionally abused in a system endorsed by Nike.
The top running program in the country had no female coaches, no sports psychologists, no nutritionists. He wanted to give her birth control pills and diuretics to lose weight (the latter of which is not allowed in track and field).
With the eating disorder and injuries she became suicidal, starting cutting herself. She told Salazar. Who told her to go to bed.
Cain is now advocating for women coaches who appreciate the physiological differences between men and women and know they have to be trained differently. People who know how to build strong women’s bodies not just to race tomorrow, but for the long haul.
So. What would a lawsuit look like if Cain sued Nike for negligence?
The Legal Framework
I probably wouldn’t have done the analysis below if I hadn’t read a post from my buddy Scott Greenfield, wherein he was dismissive of Cain’s complaint. He wrote that athletes like Cain make their own decisions to try to be the fastest and to win, and that comes with the trade-offs of loss and injury. They need, therefore, to take personal responsibility for their choices and the risks they undertook to push themselves to get there. Who would deny them the agency to make their own choices? (See: Run for your Life)
You don’t have to suffer this abuse, but then, when you’re a world-class athlete and the tiniest edge distinguishes the podium from the pack, you want to do whatever it takes to win. You’ve learned to lose, and it sucked.
In one of the comments about whether the coach should know better, he writes that:
this is about world-class athletes who push themselves to be the best ever. Complaining about the trade-off afterward is facile. And much as parents and athletes trust their coach, it’s not to “know better,” but to win. If their paramount concern was their well-being, they would have stayed home.
This rang a bell in my head and lead me to think of the “What if” potential for a Cain suit. Greenfield doesn’t use the words “assumption of risk” (as he isn’t using the post to undertake a legal analysis) but that is nevertheless a theme: You made a decision to compete in x, and x has its risks, and you got hurt. Don’t blame others.
Assumption of risk is an old concept here in New York (and elsewhere). It applies to the bike racer who hits a pothole in the street, the ice skater who falls and breaks a wrist, and the fan in the stands injured by a foul ball.
Fundamentally, primary assumption of risk will supersede an act of negligence by the creator or supervisor of an athletic event. So even if there’s negligence, the suit will get tossed if the participant assumes the foreseeable risks.
It was best summarized by Justice Benjamin Cardozo in Murphy v. Steeplechase Amusement in 1929 when someone flopped off a moving belt ride that stops and starts, known as The Flopper. Cardoza wrote:
A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid….
…One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball
(And a little side note as Justice Cardozo continues on — I wish judges still wrote like this)
The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
That last phrase at the end, “The timorous may stay at home,” has been oft-quoted. Indeed, I use it myself in a Disclaimer for the trail race that I put on each year, trying to use wording that evokes the spirit (if not the exquisite style) of Cardozo’s assumption of risk summary.
But is that what’s going on here with Cain and Salazar? Was she hurt in competition, or even during training? She wasn’t injured, for example, by falling when she crashed into another runner fiercely powering through a turn. Most every case I’ve ever read on the primary assumption of risk doctrine deals with a specific incident, and whether the thing that caused the injury was an anticipated or appreciated risk.
Mary Cain doesn’t deal with a particular incident or an appreciated risk. She went for expert advice, as many might do for a doctor, lawyer or car mechanic. We seek out people with specialized skills and talents because we don’t have them ourselves. If they sound like they know what they’re doing, or have been highly recommended by others, we hire them.
Nike and Salazar were supposed to be the best. Top of the heap. Cain reasonably hired them and followed their advice. Salazar, after all, had been at this for decades.
But their advice was not just bad, it was apparently dangerous, and dangerous in unanticipated ways. Cain faced medical issues that would not have been apparent to her. And Salazar and Nike provided no help when faced with them.
I would not discuss this in the language of assumption of risk, but rather, of coaching malpractice. It’s negligence, or even recklessness.
Would such a case survive a motion to dismiss?
The legal analysis, if it were ever to come to that, would pit these two essential concepts against each other: Was she a negligence victim, with Coach Salazar directing her to perilous conduct (unknown to her) that no reasonable coach would direct? And even if she was, would assumption of risk apply, with Cain accepting known dangers inherent in athletic competition, resulting in such a suit being tossed?
To me that answer is clear: Creating an eating disorder that would have long-term harmful effects on the athlete was not part of any known training program. It was not an anticipated hazard she could evaluate and appreciate before signing on with Nike. And any reasonable coach would have, had the issue arisen, immediately brought in psychologists, physicians or nutritionists as needed if one of their charges was having that problem.
Salazar, ultimately was suspended for four years for drug doping. The Nike program has been disbanded (for now). Nike’s CEO stepped down. And Cain went public with the abuse she underwent.
Some may believe that the doping and the starving are two different things. But I’m not so sure, as both entail athletes who have placed their faith in the expert, and been told by them to eat (or not eat) certain things without knowing, understanding, or appreciating that it was dangerous conduct as the risks were not explained.
It’s simplistic, I believe, to think that a teenage athlete would have more knowledge than a legendary runner and coach with decades of experience. He was hired, and trusted, due to those decades of experience, his advice and skillset. And he betrayed the trust.
I caught a few minutes of the the impeachment proceedings and wanted to discuss one small point, because it relates to trial practice for a personal injury case.
OK, maybe you didn’t see that coming. But here I am.
Since this isn’t a political blog (except insofar as it takes on personal injury issues) I won’t get into the details of the inquiry, as I would likely never emerge from them.
No, instead I wanted to focus — for just a moment — on a trial tactic. And it came in the form of a direct exam of Ambassador Yovanovitch by Democratic counsel Daniel Goldman.
Direct exam. Few talk about it. It seems so boring. Cross is where it’s at! And summation! That’t the kind of exciting stuff that Hollywood likes and that law students dream of.
But in direct, the questions are short and simple, and designed to draw out two different things from a fact witness: Tell us the facts of what happened, and (sometimes) tell us how you felt about it.
Goldman shows the art of the direct in particular when asking Ambassador Yovanovitch about how she felt about intimidated and the smear campaign against her.
Forget the answers that she gave, for the purposes of this piece, and listen to the questions.
The idea is to get her to talk about an uncomfortable topic. Kinda, sorta, what personal injury lawyers do when they try to get their own clients to talk about how injury x affected their lives. (Because mental anguish is part of the damages.)
The questions are understated. There is no legalese. The questioner virtually disappears with the type of simple questions that it seems like an inquisitive and uninhibited middle school kid might ask.
On the tape, starting at 2:27, are these questions regarding the ambassador’s physical safety, that start with Goldman trying to pull out facts:
What did the Director General tell you? What happened next? Did she explain in any more detail what she meant about concerns for your security? Did she explain what the urgency was for you to come home on the next flight?
Then later on he tries to pull emotional testimony from her:
At 8:45 — So, just like that, you had to leave Ukraine as soon as possible? How did that make you feel?
13:37 — What was your reaction when you heard the President of the United States refer to you as “bad news?”
14:24 — What did you think when you heard President Trump had told President Zelensky that you were “going to go through some things.” What were you concerned about? Did you feel threatened? How so?
One might easily argue that if this was an actual trial these questions about her emotions would be objectionable since they don’t go to the facts of Trump asking a foreign government to interfere in our elections for his personal benefit, or using official acts to “persuade” that foreign government to do it.
But the comparison to a personal injury trial were unmistakable to my ear. Because the emotional fallout does matter. And therefore the questions were, in their essence, simplistically superb.
Make no mistake about this: This might look easy but it is hard work since it requires a mastery of the facts and hard preparation to gently guide witnesses along the path that you want them to go, without making it look like you are guiding the witness down any particular path. That work wouldn’t be obvious (and shouldn’t be obvious).
And if all goes according to plan, the witness is the star and the jury forgets the questioner is even there. There’s no posturing, or preening, or emotion, or speechifying.
It just sounds like you’re asking the same questions that any curious individual would ask: …And how did you feel about that? If this was a courtroom, Goldman would probably be standing behind the jury, out of their sight, so that the jurors could focus only on the witness.
Any trial advocacy class could use this footage as a demonstration on how to do a direct exam for a witness where such impressions and effects are relevant. It was a delight to watch.
To be clear, dreck-bloggers aren’t interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom.
This pattern has now hit the sports world. On the op-ed pages of the New York Times, former Deputy Editor of Deadpspin, Barry Petchesky, discuses how he was fired because his stories did not deal, in the words of Deadspin’s new owners, with sports. Deadspin had been bought by G/O Media, a private equity firm.
Deadspin believed that sports didn’t end at the locker room, but included a whole host of player and management conduct that occurred off the field. It had an expansive view of sports, just as I have an expansive view of personal injury law that I believe covers ethics, and SCOTUS and marketing and every other aspect of a professional service business.
Petchesky was clear on his view of the scope of a sports editor:
We wanted to show the world the reality of sports, to help readers and players alike understand the labor issues, the politics, the issues of race and class that don’t materially change when the power dynamic is owner/player. In 2014, we obtained audio of then-Los Angeles Clippers owner Donald Sterling’s racist rant against what he considered ungrateful black employees. “Do I make the game, or do they make the game?” Sterling said. Deadspin’s position was that it’s all in the game.
With this purchase, Deadspin follows Sports Illustrated to the grave. Control of SI had been given to “wannabe tech company” TheMaven, which last month fired half of Sports’ Illustrated’s vaunted newsroom, and then went about trying to “hire” local people for peanuts to cover local teams.
In other words, SI is becoming a “content mill,” much the way FindLaw set out to do 10 years ago. Deadspin will presumably follow the same route as it’s website becomes zombified to run local stories that are little more than click-bait, or computer-generated articles.
And this isn’t much different than many financial articles, which are now written by computers instead of people. Every so often I see articles that will give some generic statement about a company’s earnings and I think, “Huh, you can say that about pretty much any story.” Then I Google the sentence and see that it was a line repeated over and over and over again. (See: The Rise of the Robot Reporters)
This use of artificial intelligence to write news stories isn’t limited to margin players of the news business. It’s being used by the Associated Press, Washington Post and Wall Street Journal.
The obvious problem with all this, of course, is that such pieces – whether written by computer or clueless human — focus only on the who, what, where and when. They really can’t answer why.
This downgrading strips all nuance, color, flavor and human analysis as to the greater ramifications of what an incident means. Context is lost. A robot writer cannot, for instance, understand the significance of ambulance chasers and what that might mean for society at large. It can only report on who was arrested. Or how much a stock changed relative to expectations. Or the scores of a minor league baseball game.
Computers will never see the fire in the eyes of the people involved. No matter how many shit-blogs are churned out in a subject area, th eye will always be devoid of context.
Even lowly bloggers such as myself get pitched on these “services” with “content writers” sending me emails every day asking for my humble little piece of digital real estate so that they can spam the web with their links attached to generic and dreadful “how to” pieces.
I’d rather this space go quiet than publish their pablum.
The “content” writers, whether they are human or computer generated, can’t deal with emotion. They don’t find humor and heartbreak. They can’t sit back and wonder at why things are the way they are.
As Petchesky noted:
Deadspin was the voice of the long-suffering fan, finding the humor and the heartbreak in everything in the world of sports. It was the fan wondering why he was paying $200 to go to a football game to watch a team whose owner would rather pocket profit than pay to improve the roster. It was also the fan troubled by the culture and the politics of sports, the fan who couldn’t help noticing that the larger issues of the real world spilled onto the field. Sticking to sports, pretending that sports can take place in a vacuum, would have been profoundly dishonest.
It’s only getting worse. Im not sure what, if anything, I can actually do about it. But when quality vanishes in favor of quantity, it should be noted, and a small prayer uttered that people will still see and respect quality, and allow it to rise to the top.
For years I’ve heard through the grapevine, from new clients or other attorneys, about folks being injured in auto collisions and somehow, someway, some lawyer got their telephone number and contacted them, oft times while they were still in the hospital.
From there they were steered to clinics and doctors of dubious character. They would, in turn, bill the No-Fault insurance system up the wazoo for treatment that might (or might not) be warranted. And, of course, the cases land with a certain cadre of unethical lawyers. The injured were being victimized a second time by now being in the hands of the unscrupulous. (See: Ambulance Chasers, Runners and Other Creeps.)
But I could never get anyone to go on the record here, as their concerns were not the big issue of ambulance chasing, but the very personal issue of the broken leg, pelvis or back. I even pitched the idea of running a sting to a friend in a D.A.s office. to no avail.
Who was getting the cell phone numbers and info on the injuries? Tow truck drivers? Nurses? Hospital administrators? Arrests happen sometimes, but not often enough as far as I am concerned.
But now the feds have done it, and if the allegations coming out of the Southern District of New York are proven, it seems it was some police officers in the NYPD were stealing the information to forward on to the medical clinics and the lawyers.
For years, Angela Meyers, a 911 operator with the New York Police Department, fielded emergency calls, then filed reports about the calls within the department.
But according to court documents, when someone called 911 after a car accident, Ms. Meyers did something else: She also passed victims’ information to an insurance fraud ring in Queens.
The article goes on to discuss the six current and former NYPD officers involved in the medical scam ring, and the fact that 27 people have already been arrested.
The kickbacks involved some 6,000 auto collision victims being steered in this manner, with over 60,000 people having their confidential information unlawfully disclosed. (Dear Media, they are called collisions, not accidents.) But the press release notes that this “is a fraction of the number of actual accident victims whose confidential information was unlawfully disclosed as part of the No-Fault Scheme.”
It may be painful for me to see a few of my brethren at the bar act dishonestly, but it is far, far worse to let it continue. Corruption needs to be rooted out.
I’ve often noted to people that lawyers who are unethical at the start of representation are not likely to be ethical later as their interests are directed to the self and not the client, one of the many valuable lessons I learned as a puppy lawyer. And that concept is mirrored in the SDNY press release:
FBI Assistant Director William F. Sweeney Jr. said: “The charges alleged in today’s indictment describe a scheme that blatantly violated HIPAA laws and actively targeted those the act was established to protect. May today’s arrests be a reminder to everyone that capitalizing on the pain and suffering of others won’t win you any favors in the court of law.”
But it isn’t just those caught up in the scams that are injured. It’s everyone else, too. When I stand up to pick a jury, there is, at times, an extraordinary amount of skepticism about the case, and that is before the facts of the case have even been discussed. Corruption by a few bad apples has a deleterious affect on the good.
Now this part is important for practicing lawyers, wondering which of our brethren were caught up in the scam: It may be you.
No way! How could that be! Well, if a cop or tow truck driver sends a case to Unethical Firm (for a tasty and unethical fee) and then Unethical refers case to Legitimate Firm, then Legitimate and its injured client may find itself in the middle of an investigation. As I noted some years ago, that happened to one of the most prominent personal injury firms in the city. And that is how illegitimately obtained cases can get “laundered.”
I’m guessing this story will have quite a few acts to go, and I intend to follow it up here as it continues.