March 28th, 2019

When Should A Lawyer Fight?

A tough case out of New York’s Second Department yesterday shines a light on a tough subject: If lawyers believe they are legally right on an issue, does that mean they should elect to die on that hill?

This one deals with a quirky New York law that forces all potential litigants against a municipality to file a Notice of Claim within 90 days of an incident. In other words, the Legislature demands people run, not walk, to lawyers well before they may know the seriousness of their injuries.

The municipalities then get to take a deposition right away, though we don’t technically call it that since there’s no litigation yet afoot. It’s a 50-h hearing, so-named after General Municipal Law § 50-h, which births it into being, purportedly so that municipalities can investigate with a view toward early settlement, though that rarely happens. Basically, the munis get two bites out of the injured apple, because they get to question a claimant all over again after suit is brought and the injured are now called plaintiffs.

The problem? Few rules truly exist as to the extent of these hearings. And the claimant must go, for the penalty of not allowing oneself to be questioned is kissing your potential lawsuit goodbye.

So in Colon v. Martin, the lawyers represent two claimants, driver and passenger in a car thats rear-ended by a NYC-owned vehicle. Thus, the need for the Notice of Claim, of which the lawyers elected to file one for each client.

But come hearing time — and the hearings are scheduled to follow one after the other — the claimants’ lawyer insists that both clients are allowed in the room while the other testifies. The City, however, refuses to take the testimony unless the other claimant is sequestered outside the room. Eventually, after the lawyers put all their lawyer-talking on the record, the claimants and their counsel leave.

When suit is filed, the now-plaintiffs allege they they appeared and were available to be questioned, that the City refused to take their testimony, and that the hearings were therefore constructively waived.

On motion by the City for summary judgment, the trial court chucks the case into the trash can for failing to abide by the law for giving that 50-h testimony. And on appeal, the Second Department affirms by 3-2. While this means they may appeal this final result as of right to the Court of Appeals, there’s the obvious problem that they could lose.

But they shouldn’t. The Court of Appeals should reverse and reinstate the suit. And that’s for the simple reason that the statute that birthed these hearings gives no clear directive, one way or the other, as to whether a municipality can close the door to the hearing room.

There’s nothing in the statute that says a co-claimant can’t be there, or the press, or anyone else. While the statute gives some guidance as to who can be there, there is no exclusion rule.

The majority claimed that the bare bones statute should be interpreted to allow sequestration due to the “human nature” issue of one person tailoring testimony to that of the other.

The problem with that argument is that the Court is saying what they think the law should be, and not what it actually is.

The 50-h hearings are in derogation of the common law right to bring suit, and the law is clear that when a statute is in derogation of the common law that it must be “strictly construed.” You don’t get to add new parameters because of a poorly drafted statute. And since there’s no sequestration authorized by the statute, the claimants were lawfully correct to stand their ground. Here are the magic words of the statute, which envisions two parts, oral questions and a physical exam:


which examination shall be upon oral questions unless the parties otherwise stipulate and may include a physical examination of the claimant by a duly qualified physician. If the party to be examined desires, he or she is entitled to have such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect….

…In any examination required pursuant to the provisions of this section the claimant shall have the right to be represented by counsel. 

So the statute says who can be there, particularly for the physical exam part, but it doesn’t say who can’t be there, particularly for the oral questions part. Since the statute must be strictly construed, a court can’t simply add a non-existing sequestration part for the oral exam because, perhaps, the poorly drafted statute might imply it for the physical exam part.

Now you may have noticed that I wrote “lawfully correct” above, notwithstanding that they are on the losing side of the fight right now.

This begs the question I asked at the start: Is this a hill to die on?

While I believe the claimants are correct, that doesn’t make it wise to walk out that hearing and potentially face years of unnecessary litigation that might follow, thereby delaying justice for the clients.

While it may be strategically advantageous to have both claimants in the room for some cases, that doesn’t appear to be the case here.

In this matter, the lawyers elected to represent both driver and passenger in a motor vehicle collision. Usually, that’s one big fat no-no, due to the potential conflict of interest if the host driver was even a teensy weensy bit negligent.

Since this is a fairly well known rule of the personal injury bar, and the potential is losing representation of both clients if a court finds a conflict, I will assume for these purposes that the collision was a matter of clear liability and that they two clients were advised of this issue and agreed in writing to the joint representation. (I assume this because otherwise the lawyer has yet more problems.)

But if there was clear liability, then the issues/concerns about having your other client in the room to hear what was said are pretty much moot. Assuming the clients told the lawyer the same thing – Wammo, hit from behind — there shouldn’t really be an issue.

The lawyers were legally right, in my opinion, to take their position, but strategically wrong. Their best case scenario now is that it cost their clients years of litigation and lots of time and money on the appeals. Their worst case is for the clients to walk away empty-handed and, potentially, sue the lawyers for malpractice if the Court of Appeals upholds the Second Department.

In the meantime, the Legislature would do well to clear up the ambiguity that surround these 50-h hearings, and make clear that questioning may not extend beyond that which would occur in an actual deposition. The ambiguity that exists leaves potential litigants at the mercy of unscrupulous examinees who may feel entitled to ask any old questions they want, no matter how much of a fishing expedition they may be, with the claimants being without easy recourse.

Since the time to file suit is just a year and 90 days from the date of the collision, the window of time within which a legal argument can take place in court over the extent of questioning is exceptionally narrow making judicial relief, at times, impossible or impracticable to obtain.

 

March 19th, 2019

Appellate Court: Notes of “IME” “Watchdog” are Privileged

The fact that I used quotes on two different words/acronyms is, to be fair, a lousy way to start. But this New York appellate decision yesterday is important in any personal injury litigation because it goes to this essential question for plaintiffs’ lawyers: Would you allow your client to have an unrecorded deposition and physical exam with an agent of the defendant?

Regular readers know I’ve written often about medical-legal exams — those exams that defendants are entitled to when claimants place their medical condition at issue in a lawsuit. The courts errantly refer to these as Independent Medical Exams (IME), though they are far from independent. (See: Is the “Independent” Medical Exam Dead?, and Dear Judge Smith — You gotta be kidding me.)

There are a number of frequent flyer doctors that will do 1,000 or more of these per year for insurance companies, with predictable results. They were the source of a series I did in 2013, with many exams lasting little more than a few minutes at best. (See: Premature Evaluations – The Evidence on Quickie Medical-Legal Exams)

And because these exams are anything but independent, and the doctors so heavily dependent on insurance company money, it’s the custom of plaintiffs’ lawyers to send along an observer, a chaperone, a watchdog, of some kind.

The problem of skewed exams became so great that a cottage industry was born with a company, IME Watchdog, being born for the express purpose of sending along an observer to take notes.

As a puppy lawyer I used to attend these with some frequency since I was not going to try the case. If the doctor lied about something obvious — claiming the exam lasted longer than it did, for example, or falsely claiming that the client made some comment about his condition or how a collision occurred — the observer would be able to take the stand in rebuttal and dispute what the doctor claimed happened in that exam room. The person being examined is, after all, quite preoccupied by being probed and tested and can’t sit there and take notes.

With that way-too-long introduction, we turn to the decision of the First Department yesterday in a matter of first impression: Can defense counsel use discovery to gain access to the notes take by the observers’ and take their depositions. Lower courts had mixed answers to that discoverability issue.

But that issue was laid to rest yesterday in a unanimous appellate decision in Markel v. Pure Power Boot Camp. And that answer is emphatically no.

The court first observed that “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination.”

While the “information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges” there is still the qualified or conditional privilege of material prepared for litigation under CPLR 3101(d)(2).

The observer is there as an agent of plaintiff’s counsel in order to assist in the preparation of the case for trial, and that includes cross-examination of the hired guns that insurance companies routinely use.

The only way of circumventing this is by showing a “substantial need” for the discovery and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means.

Except that defendants can’t show that because they have doctors in the rooms taking their own notes.

A final note: The court stressed that, “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.”

The representative, of course, is not hired to be there for the affirmative case, but to be available for rebuttal in case the doctor makes up some cock-and-bull story about what happened or what the doctor claimed that the plaintiff.

This is all the more important since the courts barred people from actually recording the exam, which would have done a helluva lot more for keeping the doctors honest that allowing observers.

And to those judges that may be reading this, please stop using the phrase Independent Medical Exam. You’ve got a legitimate choice between Defense Medical Exam or simply medical-legal exam. And former Chief justice Jonathan Lippmann agrees with me. In Bazakos v. Lewis he wrote in a dissent:

“[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee.

 

March 8th, 2019

Labor and Immigrants and Injuries, Oh My!

Building the Empire State Building

This piece is about the importance of New York’s Labor Law for people who work at heights, but it starts in faraway Boston. It starts there because the story from the Boston Globe is shocking, and it should wake folks up to what goes on behind the scenes.

The basic story is simple enough: Jose Martin Paz Flores had a job taping drywall for Tara Construction. He fell off a ladder and broke his femur in March 2017. The injury required immediate surgery. 

“But Paz — a father of five — could not get compensation for that injury because the company’s workers’ compensation insurance policy had lapsed.”

What to do? The owner of Tara Construction, Pedro Pirez, decided to make the problem go away. Because the worker he hired — that father of five –was undocumented.

So he called a relative of his. Who was a detective on the Boston Police Department. Who gave the issue to a sergeant. Who is on the joint ICE/Boston Police task force. Who called ICE.

Then the wonderful Mr. Pirez — who his lawyer says is really “a nice guy” — called in his injured worker to give him $500 to help him along. At which time he was arrested by ICE. In front of his screaming 2-year-old child.

And that’s how Mr. Nice Guy tried to make his little insurance problem go away.

Each year in Albany there are people who want to weaken our Labor Laws, which provide for absolute liability in favor of workers who are injured on the job site when they’re working at heights, if a safety regulation is violated.

And each year there are construction and real estate concerns screaming that the liability should be shared if the worker was comparatively negligent.

The problem with that argument, as exquisitely laid bare in the Globe story, is that workers don’t exactly control the workplace. There are a million ways a boss can retaliate against someone — not just against the injured worker but against a witness to an accident that might be helpful for the injured worker.

Does one guy really want to suffer at the job site to support his injured co-worker when his primary obligation is support his family and pay the rent?

While the Globe story goes on to cover different aspects of the complaint eventually made by the Department of Labor, and retaliation and OSHA, the underlying story of the vulnerable situation of workers is what interests me.

Oft times, these folks are at the complete mercy of their “nice guy” employers.

And so, if you happen to be a legislator that’s reading this little corner of cyberspace, when the contraction lobbyists come a calling to weaken our safety laws, I hope you’ll remember the powerless position of so many people that risk their lives to put up the buildings that we work and live in.

 

February 25th, 2019

Words You Should Never Use

Over the weekend, W. Virginia Chief Justice Beth Walker tweeted out a list of words that are banned from her opinions. It’s a good list, and one that all lawyers should note, as these words don’t belong in briefs either.

I’ve written before about crappy legal writing, from both the bar and the bench. It’s not that concise writing will necessarily win your client’s case but that at least your arguments can be appreciated. Far worse than writing a losing argument is writing an argument that isn’t even read because it makes the eyes glaze over.

Lawyers are (in)famous for cluttering our letters and briefs with pretentious, and wholly unnecessary, language, thereby distracting from the point.

A good quote to keep in mind is this gem that legal guru Bryan Garner tweeted out many years ago:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

A simple and favorite example from Garner of cluttering language is the humble transmittal letter that says, “Enclosed please find…” as if the recipient must go hunting for something.

My personal favorite are the openings to attorney affirmations that declare the writer is “duly admitted” to practice law. Is there any other kind of admission to practice other than duly?

Without further ado, these are the words that CJ Walker has banned, and with a follow-up of a few additional suggestions that came in response via Twitter. Rather than seeing that list buried in the billions of other Twitter messages, I preserve them here for easy access.

And now some others from her commentariat:

  • duly
  • utilize
  • at bar
  • impacted
  • heretofore
  • the undersigned

Since the function of an advocate it to tell a story to engage the reader and persuade, and the use of the stilted legalese distracts from that goal, the conclusion should be obvious. But, for some reason, it continues on.

 

February 15th, 2019

Quick! Start the Internet Shame Game!!!

We see it almost every week on the interwebs, with someone having possibly done something wrong/stupid and having their name and reputation blasted to smithereens in a nanosecond.

A full investigation and uncovering of facts would come later that might support, or not, or leave ambiguous, the initial onslaught.

Now keep that thought in mind as I turn to an extraordinary piece in The New Yorker by Robert Caro, who wrote the incredible biography of master builder Robert Moses, The Power Broker, and is currently working on a five-book biography of Lyndon Johnson. Four volumes have already been published.

Caro reveals his secrets as to how he gets the good stuff. He starts off with some wisdom he learned at his first job as a reporter, for Newsday:

“Turn every page. Never assume anything. Turn every goddam page.” 

To those accustomed to forming opinions based on Twitter headlines, this will make you very unhappy.

At the Johnson Library in Austin, Texas there are forty thousand boxes of documents. Forty thousand.

The way things worked, you’d fill out a slip for the boxes you wanted, and in an hour or so an archivist would arrive in the Reading Room wheeling a cart with the boxes on it, and put them on a cart next to your desk, each one landing with an impressively, and depressingly, heavy thud. There was room on the cart for only fifteen boxes, and I always requested more than fifteen, so that when I returned a box and a gap appeared on my cart it would be quickly filled.

Over time he pored through thousands of boxes of raw documents to find out how Johnson was able to rise quickly in power from his position as congressman.

And the same attitude toward turning every page to find out the story went toward interviewing people from Johnson’s hometown in Hill Country west of Austin. He realized that, in talking to them, he really didn’t understand them. There was a cultural divide.

Reporters during Johnson’s presidency went out there they’d stay for a few days, maybe a week, and then leave. Caro decided to stay there for most of three years as he commuted back and forth to the Johnson Library 40 miles away in Austin.

Living there was the best way to win the confidence of Johnson’s old family and friends and to understand Johnson’s youth. Caro does the hard work.

As soon as we moved there, as soon as the people of the Hill Country realized we were there to stay, their attitude toward us softened; they started to talk to me in a different way. I began to hear the details they had not included in the anecdotes they had previously told me, and they told me anecdotes and stories that no one had even mentioned to me before—stories about a Lyndon Johnson very different from the young man who had previously been portrayed: about a very unusual young man, a very brilliant young man, a very ambitious, unscrupulous, and quite ruthless person, disliked and even despised, and, by people who knew him especially well, even beginning to be feared.

Lawyering, or at least good lawyering, is often like that (without the three years of living on site part). It isn’t the shoot first and ask questions later that you might see in Twitter rages against the latest demon of the day. It’s about uncovering as much evidence as you can to see what it reveals.

Go read Caro’s piece. It’s fascinating. Then maybe reevaluate the real relevance of the trashy comments of the day as to what they really mean.

How many of them followed the lesson that Caro learned long ago?

“Turn every page. Never assume anything. Turn every goddam page.”