Lawyers and the Press. Again

GellerLawGroupI hate to pull the stuffings out of this article from the New York Times about women lawyers trying to manage both family life and a solid law practice. It was a lovely, fluffy piece of lifestyle journalism.

The women at the Geller Law Firm, it seems, have based their practice around making sure that they don’t lose sight of the other important things in their life, also known as children.

To do this, they cut back on hours, or make them really flexible, work from home or temporary offices, and focus most of the practice on non-litigation matters such as trusts and wills and small business incorporations. And “[T]he partners limit their litigation business because court appearances and filing deadlines mean less control over their schedules.”

According to the piece:

the founding credo of which is family-friendliness and whose stance on office face time is best described as “militantly against.”

You know what? If they can figure out a way to make the model work, then more power to them. If a group of people, for example, only want to work 30 hours a week, and take home less pay and have fewer clients, no problem.

So long as the clients aren’t affected.

But the article needed a little color. Someone decided it would be nice to have an actual client involved in the cuddly, little piece.

The problem with including a client, of course, is the risk that something will be said about an actual piece of litigation, so you would expect something very benign, such as “I think they are awesome and have no problem with the limited hours and they always get back to me when I call and they are awesome, and I said awesome twice because I really, really think so.” You know, like that.

But that is not what happened, so this is where the stuffings get pulled from the sweet teddy bear of a feature piece.

This part just leaped off the page at me, as confidential communications were exposed in front of the Times reporter:

By 10 a.m. on that Wednesday in March, Ms. [Maria] Simon was seated in front of a client, formerly the president of a condominium association that was now suing him. (The client gave me permission to sit in on the meeting.)

Ms. Simon began to review each count of the civil complaint against him, MacBook open and legal pad at the ready. She had a litigator’s game face that was only occasionally undone by a wry smile she couldn’t quite suppress.

“I have to ask,” Ms. Simon said at one point. “Did you ever falsely represent yourself as an attorney?” The client explained that he had once told a local agency that he was appearing before it as an attorney but that he had meant it “in the British sense,” in that he had power of attorney. “You know you’re not supposed to say that, right?” Ms. Simon deadpanned.

“Yes, lesson learned,” he said.

For the non-lawyer readers, let me explain. What lawyers and clients say between themselves is privileged. But when a third party, unrelated to the law firm, comes into the room, the privilege evaporates. Gone. Up in smoke. At a deposition opposing counsel can ask about every single thing that was said in front of this other person.

Lawyers see this potential problem with some regularity, though not with reporters as the third wheel. Often a friend will accompany the client to the office. And when that happens, it’s the job of the lawyer to exchange pleasantries with these friends and explain to them what a privilege is, and why they can’t come into the conference room, and offer them coffee and a newspaper as they sit in the waiting room.

Why the lawyers at Geller decided it would be wise to have a confidential meeting in front of a reporter is utterly beyond me. And why the lawyer would ask in front of a reporter, “Did you ever falsely represent yourself as an attorney?” is simply bizarre.

Saying that this was not a well thought out interview from the lawyer’s perspective is, I think, a significant understatement.

This is not the first time I’ve written on this subject, where it seems that the desires of the lawyer for press have superseded the best interests of the client.

We saw this just a couple weeks ago with South Carolina attorney David Aylor, who was representing police officer Michael T. Slager, who happened to fire 8 shots toward the back of Walter Scott, killing him. Aylor didn’t just jump ship after seeing the video, but worse, told the world just hours later that he was jumping ship after seeing the video. Because apparently Aylor comes first, not the client.

And we saw this a few years back with Chicago criminal defense attorney Stuart Goldberg, who interviewed with Lindsay Lohan about representing her, and then opened up to People magazine about her “fragile” state. But confidential means confidential.

What should the Geller client expect? That his admissions in front of his lawyer may now be an issue, that everything said in front of the lawyer is no longer confidential, and that the lawyer might actually now be a witness to the admissions, and be unable to handle the matter due to a conflict.

That is one hell of a mess, if you ask me. And I don’t know how anyone can say it benefits the client.

This isn’t to say that all client interactions with the press are bad. But going into them, there must be long and thoughtful discussions about exactly what is fair game to speak about, and what isn’t, and how/why it helps the client.

I reached out yesterday by email to the lawyer involved and she did not yet get back to me.

 

What’s a Bar Mitzvah? (Asks the judge…)

Bat Mitzvah - Masada 1

A young lady becomes a bat mitzvah in Israel after hiking up Masada.

When a judge writes a decision trying to figure out what, exactly, a bar mitzvah is, someone ought to take note. Especially when he uses an old Hasidic parable in order to render a decision. And given that no one has yet brought this November decision to light, it seems that it’s up to me.

The six-page decision comes out of Rye City Court, a small claims court in suburban Westchester County, not far from where I live. And the judge noted that, while the court’s jurisdiction was somewhat limited, it doesn’t mean that it can’t wrestle with “geo-political issues, gender conflicts or theological dilemmas.” And not only that, but in addition to contract law issues, the court was “presented with the question of what is prayer and who decides what prayer is appropriate.”

Yeah, that does seem like an awful lot to ask for small claims court. But at its core, Judge Joseph L. Latwin had to decide who wins a contract dispute, when training a young man to be become a bar mitzvah is the subject of the contract. That training revolves around learning to read Hebrew and learning the prayers associated with the service in which the kid will participate after he turns 13.

In Zyngier v Lurie, the claimant is the father of the boy preparing for his bar mitzvah service, and sought a refund of the downpayment for bar mitzvah lessons/training. The defendants are a rabbi and cantor who were teaching him, who have counterclaimed for the work that they performed. They were eight months into the training and just six weeks from The Big Day, when trouble erupted.

The problem was that the parents didn’t like parts of the service that the rabbi/cantor said needed to be done. Specifically, they objected to two English language prayers, one for the United States and one for Israel.

Why object? The mother is Lebanese-Christian and lost family in wars with Israel. The father is Brazilian (and presumably Jewish). Thus, there was no ancestral tie to the U.S., and the mother was uncomfortable with the prayer for Israel based on her personal history.

And there was a third issue — I did write, after all, that gender conflicts were part of this. The prayers that were being taught were egalitarian in nature. Thus, a central prayer in the service that is devoted to honoring the patriarchs (Abraham, Isaac and Jacob) now also includes in some of the more liberal synagogues the corresponding matriarchs (Sarah, Rebecca, Rachel and Leah).

The problem? The mother of the bar mitzvah boy wasn’t Jewish and the parents didn’t want to highlight this fact by including the matriarchs, and they wanted the prayer omitted.

Oy! What’s a judge to do? And the answer? Bring up an old Hasidic parable, of course, one that is often used to illustrate the essence of prayer. Isn’t that what you would do?

In this story, a young shepherd boy that doesn’t know how to pray finds himself in a synagogue on a holiday. Since he doesn’t know how to pray, but really wants to, he whistles his prayers to God. But while chastised by his father, the gates of heaven burst open. Because, the story goes, it wasn’t the specific words or form of prayer that were important, but the sincerity and spirit behind them that actually mattered.

The court then observes that:

The Court is aware that there is no biblical prescription of what prayers are required to be said at a bar mitzvah service. Other than the prayers before and after the reading of Torah and Haftorah, none of the prayers are mandatory, although many traditional prayer are bible based and overwhelmingly offered. A congregant from New York could likely walk into a synagogue anywhere in the world and not find much variation (except that translated prayer would be in the native language, not necessarily in English). Virtually the same prayers would be said in virtually the same order. This is a matter of tradition established over the 5775 years.

This Court is not the proper forum, nor is it capable of determining what prayer anyone should say or how it is to be said. The Court has little insight as to whether certain words, heartfelt whistling, or other mode of communication will find favor with any particular deity. That is better left to theologians. Nor will the Court impose any prayer regimen on either the claimant or the defendants. That is their personal choices – not an issue of secular law.

Masada Bat Mitzvah

Hoisted in the air in celebration, post bat mitzvah service.

But things do change. There was no prayer for the United States as part of the service, for example, until recently, and you wouldn’t expect a synagogue in Brazil to use it.

And the adding of matriarchs is not only recent, but only observed in some congregations. Judge Latwin knew that he couldn’t be placed in the position of deciding which prayer was proper and which was not. We still have that separation of church and state thing going on, even when the church is a synagogue.

So what does he do? Basic contact law:

A court cannot enforce a contract unless it is able to determine what the parties actually agreed to. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.

Here, there was no meeting of the minds for what the service was to entail. The contact stated that the defendants were to provide “all liturgical and Torah text for custom prayer book,” which tells us nothing of the important details that were at issue. From the court:

There is no discussion as to whom if anyone has final editorial say on the content of the custom prayer book or how any dispute over the content was to be resolved. It appears to not have been contemplated by the parties and not a part of any agreement between them. Thus, the contract lacks the essential element of a meeting of the minds on this issue and the contract must fail.

And the decision: The defendants rabbi and cantor were entitled to the fair value of the 25 hours that they had spent with the kid up until it was realized that there was no meeting of the minds.

There was no discussion as to whether the young man ever had his chance to participate in the service.

(hat tip to Jeff Stillman)

Boston Marathon, 2015 Edition (Updated!)

2015bostonmarathonToday is the 119th running of the Boston Marathon, one of the truly great road races in the world. While it’s become associated with terrorism in the minds of many due to the bombing two years ago, this is not the way that runners think of it.

The race is, for most of us, a goal and pinnacle. Except for the great elites who will toe the line at Hopkinton this morning, most think of this as a great celebration.  While some get into the race as runners for charity, the achievement for most is simply running fast enough in a prior race to qualify.

I have many friends out there now — as I type they are making their way to the start line and wondering how long the rain will hold off.

And along the route, there are countless parties being readied to celebrate the runners as they go by, for what is a mass event like this other than a great big party?

Is the potential for terrorism in the minds of many? Of course. But they are out there anyway, runners, spectators and volunteers alike.  Those that are out there are not shut-ins preferring to cower. They are the ones celebrating life.

Below are a few pieces I’ve written before about the race (and the bombing). For those who want a peak into the psyche of the runner and what the race is about, here you go:

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) – 2009

The Boston Marathon (Highway to Hell) – 2012

Boston Marathon Bombing (And the Lives We Lead) – 2013

Passover and the Boston Marathon Bombing – 2014

——–

Update: Rebekah Gregory DiMartino, who lost a leg in the 2013 Boston Marathon bombing….ran the closing miles of the marathon today to cross the finish line. Video of her crossing the finish is enough to dent even the hardest and most cynical of hearts.

Enthralled with the Press

DavidAylorScreenGrabDid someone drop an extra dose of stupid in the drinking water of Charleston, S.C., attorney David Aylor?

If the name doesn’t ring a bell, let me attach it to an incident: On Saturday in North Charleston, police officer Michael T. Slager shot dead a citizen of that city, Walter L. Scott. Slager claimed that he stopped Scott for a broken tail light and then shot and killed Scott when Scott tussled for the officer’s Taser.

Aylor was the criminal defense lawyer for the cop, and said he believed that Slager followed the proper procedure.

But then a video surfaced that showed Slager shooting the unarmed Scott as he was running away. It looks like little more than an execution as he shot eight times at the back of the the fleeing Scott, hitting him five times.

Slager was arrested for murder. And his lawyer — Aylor — dumped him.

But Aylor didn’t just dump him. No, sirree. What he did was dump him publicly, thereby implicitly violating the attorney-client privilege and calling his client a liar. Lawyers don’t do that.

Lawyers don’t get hired for the purpose of violating confidences. If Slager lied to his lawyer in private about the facts, that is between client and lawyer, and nowhere else.

In response to being swamped with press calls after the video came out, Aylor could have said two things. First, he could have said “no comment.” Period. End of story.

Alternatively, if he was sick of being bombarded by press calls, he could conceivably have said that a change in counsel was in progress, and he obviously couldn’t say more. No one would know why. There are plenty of reasons for a change in lawyers, and few would think anything of it.

But instead, Aylor gave an interview to the Daily Beast. And after superficially claiming that he couldn’t discuss the matter, then proceeded to piss on the guy that came to him for legal help:

I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.

So there it is, he told the world that

1. He was the one dumping the client; and

2. That he was dumping the client right after seeing the video.

In other words, I think he called his client — to whom he owed a duty as an attorney —  a liar, since the video likely didn’t match the story he was allegedly told. There is no other way I can see this.

And in case anyone might think this was a single, moronic slip of the tongue, he did it again later in the interview:

I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.

So Aylor intentionally threw his client under the bus.

Now his client may be a murderer, and may be a monster and may be all sorts of mean, nasty things about which you will see protests in the coming days/weeks/months.

But the lawyer’s allegiance is to the client that came to him for help. If clients can’t speak to lawyers about problems then they can’t get the legal assistance they need. We have that lawyer-client confidentiality code for a reason. And it doesn’t get violated just because the lawyer suddenly has a reviled client.

Aylor was completely unprepared for the press. When he should have said nothing, he gave this comically contradictory answer to a simple question:

How did you come across the video?

I can’t say where I saw it first. I first became aware of it via the media. In fact, a reporter sent it to me via e-mail.

Did he think that talking to the press was going to be a neat bit of self-promotion so that the could add another little line to his website about all the press he has been in? Methinks that is going to backfire big time, as I think most lawyers are appalled by what he did, and some of them just must might want to write about this.

This isn’t the first time I’ve written about a lawyer disclosing confidentially obtained information in a high profile case. I wrote about this five years ago when one of the lawyers being interviewed by Lindsay Lohan for a criminal defense thought it would be great to get some free press for himself by blabbing to the press about his meeting with her.

Incredibly, there is actually another comic note to all of this. It seems that Aylor put a video on You Tube boasting about being named the top lawyer in Charleston by City Paper (an alternative free weekly).

Don’t ask me how such a stupid survey could be done, but here’s the kicker: Aylor posted that little boast of being best on April Fools Day.

Elsewhere:

The Unwashed Advocate:

..giving an interview to the Daily Beast as an aggravating condition necessitating elevation to Interstellar Capital Dipshittery.

Simple Justice:

What could Aylor possibly have been thinking when the Daily Beast called and said, “talk to us, bro. It’s gonna be sweet!”  The only rational conclusion is that he saw his 15 minutes of fame coming to an end, and wanted to get his brand in there before the name David Aylor disappeared forever.  This was an opportunity to spin his involvement from lawyer for the devil to good guy who wouldn’t be caught dead standing beside the murderous liar.

Noah Feldman @ BloombergView:

[Aylor had] an ethical obligation as a lawyer to defend his client, not to abandon him or harm him by a public act of distancing. Yet in an interview with the Daily Beast, Slager’s lawyer did just that, dropping his client like a hot potato and strongly implying that Slager either had been set on a course of perjury or was simply too repulsive to represent.

It’s hard to avoid the implication that Slager hadn’t told his lawyer what really happened, and that lawyer withdrew at least in part because he thought his client had misled him.

Gamso for the Defense:

OK, yeah he essentially rolled on his client.
Yeah, he violated attorney-client privilege in substance if not in form while denying that he was doing that.
Yeah, he made an ass of himself in public, but that’s what comes from media whoring when there’s nothing to back…

The Squiggly Line in the Road

Squiggly yellow line down middle of road.

Squiggly yellow line down middle of road.

If you came here looking for an April Fool’s joke, sorry, but I retired in 2013. Now on to today’s post…

So there I am last weekend looking at the squiggly yellow line down the middle of the road. And I think to myself: Self, just what the hell does that mean?

Now several things spring to mind.

1.  The yellow line painting guy was drunk and singing King of the Road.

2.  The yellow line painting guy dozed off while listening to On the Road Again.

3.  The yellow line painting guy was playing a joke on someone who likes Country Roads.

4.  The yellow line painting guy wasn’t driving, but was actually running down the road trying to loosen his load with seven women on his mind, and was thus distracted.

5.  The yellow line painting guy suffered from a disability of sorts that caused him to paint in a less-than-staight manner, and when the boss yelled at him he invoked the Americans With Disabilities Act and sang I Don’t Need No Doctor.

6.  The yellow line painting guy was a genius.

A genius? Well, yeah, that is one possibility. Because this was a construction zone. And that means lower speeds. And what can bring down speeds quickly, that isn’t also dangerous?

NormalSquigglyLineNo, not a sign. We expect signs. Even signs with squiggles on them.

But a squiggly line down the middle of the road? Well that might make a distracted driver take notice that something is up.

So I go with genius, a traffic safety genius, who sang Stayin’ Alive while he painted.

And if you got a better idea, I’m all ears.

Subway Gunfights and Other Distractions

distractionEver been in a crowded subway car when a gunfight broke out? I have. It’s not a fun altercation.

That incident from 20 years ago popped back into my brain when someone was shot and killed in the NYC subway system recently. Apparently some strangers exchanged words, and then blammo. (That’s the short version. Fuller version at Scott Greenfield.)

My experience with a gunfight occurred on an uptown Seventh Ave. express heading into Penn Station. At rush hour. Two guys started pushing each other, about 10 feet away from me.

There were a few people between me and the scufflers, but in a packed car, if one person moves quickly it reverberates. A few shouts from strangers to cool it. And when New Yorkers yell at strangers to cool it, you know something really odd is going on.

We try hard to keep to ourselves. Because New Yorkers love to pretend nothing is happening, even when it is. We don’t look into the eyes of our fellow passengers. There is no end to the possibilities of what may happen, too many of which are negative.

And then a couple shouts of “Gun!”  Along with everyone else in the car, I dove to the floor. And I was happy. Happy to be on the floor of a filthy rush hour subway car. With someone else on top of me.

“Pop. Pop.” Two shots.

We pulled into Penn Station — with all those commuters on the platform thinking they were going to pile into that subway car and make their way home, as a tsunami of people flooded out.

I peeked back after exiting. There were two men on the floor. One holding a gun to the other. Neither moving.

The news that night reported a scuffle took place with pushing between the two men. One pulled a pistol. Then the other wrestled it away from the owner and shot him twice with his own gun.

Now I’ll explain why these two sudden and terrifying incidents actually matter in a simple trip and fall case. Stay with me here, because this time I think I have an actual point to make.

A great many trip/slip and fall cases focus on the defect, whether it’s ice, busted sidewalks, potholes, stairs, whatever. The defense is twofold: Either it’s too small to be actionable, or so large that it’s open and obvious. It’s all about the defect. Look, look, look at the defect. It’s tiny (or alternatively only a blind man could miss it).

Now here’s the problem, and the challenge for the plaintiff’s attorney: It isn’t enough to focus on the defect. Sure you have to prove it, but in a busy city like New York, there are a million distractions, some static and some dynamic. Your client is looking at those too.What was the reason that the defect wasn’t seen?

The static distractions are the fire hydrants, food carts, sidewalk signs and parking sign poles, trash cans and trash bags, store windows, dog droppings, sidewalk grates, and other such stuff of daily life.

But the dynamic ones are more important: These constitute the walkers, runners, vendors, baby carriages, dogs and bicycles that are everywhere, some moving fast, some slow, and some doing all they can to make sure you look at them.

And that is in addition to the hustlers who may deliberately bump you, dropping a cheap bottle of wine or eyeglasses, and demand that you pay for the damage you caused.

Why are these dynamics more important? Because you don’t want to inadvertently bump into your fellow New Yorker. Why? See gunshot stories above.

We don’t like to talk about this much, but it’s on everyone’s mind as we zig and we zag between the static and dynamic distractions of the walkways. An inadvertent bump into another is one of the disconcerting and discomfiting interactions of subway and sidewalk life, for it involves fear of The Altercation.

We don’t want to have this anxiety, but we do.  Because we don’t want The Altercation. It’s big city life, and we’d like to get safely to wherever the hell we set out to go with as little hassle as possible, thank you very much.

That’s why, on the subway, New Yorker’s don’t look at each other. Sure, looking another in the eye might be a sign of love. But it may also be one of aggression. And you don’t want your glance to be “mistaken.”

Know how you can tell who the tourists are? They look at other people on the subway — though in all fairness the pastel shirts of some give them away long before that.

Where was I? Oh yeah, so we don’t always look down when we walk. We don’t always see the static defects that blend into the background and, quite frankly, shouldn’t even be there. We mostly look for the dynamics around us, trying to avoid the cars, bicycles, crazy taxi drivers and each other.

The lawyer that focuses solely on the defect may well lose. Sure, it could be a deceptive walkway, like these stairs, poor lighting, or an infirmity of the pedestrian that makes the defect more difficult to discover or navigate.

But the defect, which represents a trap, also exists in a much larger environment and context that is filled with other dangers to our well-being.

If you take the slip/trip fall case, the client ought to be able to reconstruct his surroundings to answer the question of why the defect was missed. And I don’t mean the easy questions of lighting or personal disabilities. But what were the static and dynamic distractions that existed in the few seconds before the fall?

You can have completely different results despite a defect being identical. In one case, you might have someone walking down a narrow and crowded subway stairwell, and miss the ice patch as he strives to avoid bumping his fellow commuters.

But if the reason for that same slip was that he was sending a text message — adding his own distraction to the multitude that already exist —  there is as good chance he will lose.

To the practitioners out there, don’t just ask about the defect in the walkway. Find out what the potential client was looking at instead. Because the jury will want to know.

Another Defense Orthopedist Slammed By Judge

You remember, dear reader, that one of my concerns about the fair administration of justice in personal injury cases here in New York is the fact that defense doctors are often less than candid in the independent medical-legal exams that they do?

Dr. Robert Israel was sanctioned by the state. Dr. Michael Katz excoriated by Justice Duane Hart. One doctor decided that what’s “normal” is what the insurance carrier tells him. Another reveals how to leave out of the reports things that may be beneficial to the plaintiff. And I uncovered in my own investigation a bevy of doctors doing “quickie” medical exams.

Now comes before us Dr. Julio V. Westerband, yet another orthopedist. And he was benchslapped big-time last week in an opinion by Justice Arlene Bluth. He seemed, in my humble opinion, to be oddly challenged by the idea of writing objectively for an “independent” exam.

This is the set-up: Plaintiff was standing on the sidewalk outside a car wash. Defendant driver lost control of his car and hits the plaintiff. Plaintiff suffers injuries, including a broken ankle.

I know, it’s complicated. But this is the interesting part: to proceed in an auto case in New York you have to show a “serious injury,” and one of the ways of doing that is by showing a fracture. So the fact of fracture is particularly important.

Plaintiff moved for summary judgment, both on liability and on the issue of serious injury. Liability wasn’t contested, but the fracture was.

How can Dr. Westerband — who did a medical-legal exam of the plaintiff on behalf of the defendant — contest the fracture that repeatedly showed up on the x-rays? Easy! By not reading the x-rays and simply ignoring the written reports that he concedes explicitly state that the ankle is fractured.

No, really, I’m not kidding you.

Plaintiff put in proof through his own orthopedist, who treated the plaintiff and saw the records, that the ankle was broken.

But Dr. Westerband? Could he be bothered with objectivity? Well, if he did that, then the defense would lose, right? If multiple radiology reports all say fracture we can pretty much guess that there will be a fracture, right?

And he did see the reports, for in his own report — summarizing the records he reviewed and his medical-legal exam — he indicates that all four of the ankle x-rays reports show a fracture. Westerband Report

But instead of writing “fracture” in his own report, which is a magic word according to our Legislature, he writes  “questionable” fracture. Based on what is it questionable you ask? Funny that you should ask, because Justice Bluth asked the same thing, and then wrote:

He did not review x-rays and did not disagree that plaintiff suffered a broken ankle in the accident. Rather, with no support whatsoever, he concludes “status post questionable right ankle fracture.” Maybe if he looked at an x-ray he wouldn’t have a question.

Zing!  The defense, having failed to raise an issue of fact on the issue of a fracture with this idiotic argument, lost the motion for summary judgment. They should probably be grateful that plaintiff’s counsel didn’t move for sanctions. Given Justice Bluth’s obvious annoyance at having to even hear this nonsense, it wouldn’t surprise me if she would have considered it.

Dr. Westerband, by the way, has previously testified that he testifies about 25 times per year and that half of his income comes from medical-legal exams and testifying. I know, you are shocked.

The decision is here, and as you can plainly see, handwritten. So I’m publishing it now also in a Google-friendly way, since handwritten opinions aren’t likely to get officially reported, and others may wish to cross-examine Dr. Westerband on why he makes decisions on fractures while both ignoring the x-ray reports and failing to look at the films: Westerband Decision

You’re welcome.

 

The Fainting Lawyer and the Stress of the Courtroom Well

HansPoppe

Hans Poppe, Louisville, KY

Almost two years ago I wrote of the lawyer who fainted dead away on the 10th day of a medical malpractice trial, where he was representing the patient. And the defendant doctor he’d sued then rushed forward to assist him. The story even had video.

The lawyer, Hans Poppe of Louisville, KY, was at the bench discussing the defendant’s motion for a mistrial when it happened. Poppe, it seemed, had inadvertently played an unedited version of a deposition that had a verboten discussion of medical malpractice liability insurance in it, instead of the edited version that excluded those questions.

That technoblunder resulted in a mistrial, and the insurance company, Kentuckiana Medical Reciprocal Risk Retention Group, then went after Poppe for the costs of the mistrial. The insurer sought a whopping 125K in costs and fees.

And now the issue has come to a conclusion, and hence this update.

In a decision dated February 13, 2015, Jefferson Circuit Court Judge Audra J. Eckerle supported Poppe and not the insurance company.

Why? First off, the insurance company provided no evidence that Poppe acted intentionally. How does one prove intent from mouse clicking the wrong file to play in the courtroom? By looking at both the actual evidence and mitigating circumstances.

And the judge saw that, upon realization that the wrong video had been played, and understanding the ramifications of it, she wrote that the Court saw:

“…the color pass from Poppe’s face when he realized what he had done. And, of course, it witnessed him faint when the fully gravity of his malfeasance hit him. His subsequent actions and apology seemed genuine. The Court accepts that, as well as the mitigating circumstances that Poppe has offered.”

What mitigating circumstances? This is the nuts and bolts of what it is to stand in the courtroom well, having waited years to get there, sorted through countless documents and potential exhibits, to walk the proverbial high wire without a net after enduring nights without sleep as you stress about the innumerable details of a trial:

Poppe’s misdeed occurred during the third week of a hotly disputed, highly contentious, multi-million dollar claim. Many lawyers battled. Discovery had consumed several years and several thousand documents. Witnesses and exhibits were legion. One error occurred. While it was colossal, it was singular. The Court cannot conclude, under the totality of the circumstances, that the conduct was anything other than a horrible mistake, brought on by fatigue, weariness, and exhaustion, and not by malice, egregiousness or bad faith.

That was it: one mistake. My reading of that is that Poppe’s own good reputation saved him. The matter had been contentious for sure — this was a trial after all — but he hadn’t done anything else to worry the judge.

Reputations matter. They may act, as they did here, as circumstantial evidence if that reputation was earned in front of the fact-finder.

She concluded:

Without question Poppe’s actions came at a cost to his opponents, and to himself, in a rather public and humiliating fashion. But Poppe did not impugn the integrity of the Court or undermine its authority.

The motion for sanctions was denied. And the case, by the way, settled.

 

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?

Allstate Adjuster Likely Wants Her Snark Back

Allstate

Don’t those nice Allstate hands look so friendly?

A snarky email from an Allstate adjuster may cost the company $900,000. Here’s the story.

By most anyone’s definition, 66-year-old Carol Haberman’s experience while walking her dog can be a horrible, life-altering one. Newspaper deliveryman James Burke backed out of a driveway at night while making a 3-point turn and ran her over. Realizing something happened, he pulled forward, likely running her over again.

The result? A complex left hip fracture requiring a total hip replacement, a lumbar compression fracture and compartment syndrome requiring a fasciotomy of the left leg.

What happened in litigation, however, was astounding. You may hear me rant about insurance companies and adjusters sometimes, and now you’ll see another reason why. The difference here is that the adjuster actually put her Kool-Aid inspired thoughts into writing.

There were two fundamental issues to deal with: How to apportion fault as between a driver and pedestrian. And how severe the injuries were. This would include, of course, the extent to which she had prior injuries that may have been affected.

But any way you sliced it, this was a significant matter to be deftly handled. Practically speaking, both plaintiff and defendant would want to limit their exposure with a jury. This is the type of common sense risk management of which settlements are made.

This is also one of the primary reasons that picking stupid personal fights with the other side is detrimental to a client. Because one day you might need to talk turkey over coffee with that other side about how to best serve your client with a negotiated deal.

And so it came to pass that, with a $1.25M insurance policy on the line, the parties in Haberman v. Burke thought that they had reached a settlement of sorts. This would have been what we call a high-low agreement that limits the financial exposure of both sides, with the high being $1.1M and the low being $100K.

The problem? Plaintiff’s counsel, Paul Edelstein, believed that this established the high and low of damages, and that only the issue of liability would be tried. Given the costs of hauling experts into court, this is an arrangement that can make sense for both sides.

But no. Allstate insurance adjuster Andrea Sewsankar thought that both liability and damages would still be tried. And she wanted that despite the fact that her “expert” was the discredited orthopedist Robert Israel.

OK. An understandable miscommunication occurred. But one would logically then assume that an effort would be made to hash out a solution, especially since the defendant had a problem with its expert. Whether agreement would have been ultimately reached, who knows, but certainly the efforts would be continued. Right?

Dear Reader, would I be writing this if that effort were made?

No. Instead, Allstate’s Ms. Sewsankar shot off a deliciously snarky email after Edelstein said that the two of them were not on the same page as to the details of the high-low. This was the set-up to the nastiness, via emails that I have obtained that were  being used to confirm the deal:

Sewsankar: As we discussed, win or lose, your client is guaranteed a payout of $100,000 in exchange for a cap at 1.1 million. No appeal & your client will be responsible for all liens including and not limited to Medicare.

Edelstein: Correct.  But also no damages trial.  We will do hold harmless and deal with any medicare lien

Sewsanker: Oh no, damages trial also.

Edelstein: Oh man. Sorry. We weren’t on the same page.  I cant do that.  Only high low if we do away with damages trial

So far, not a problem, right? Just two sides trying to confirm in writing the nature of a deal, and then realizing that they had an unresolved issue.

And then, Boom! The testy little missive that will likely cost Allstate a bucket full of money before it’s all over, and which cracks open the Kool-Aid drinking mindset of some insurance adjusters, and which will be extremely important after this week’s verdict:

Sewsankar: No problem, I thought you had recognized the awesome skills of my defense counsel & wanted to garner a six figure payout for your client, so I took the opportunity to solidly protect my insured with this cap. Luckily, no payout will be warranted when Ed scores a defendant verdict on liability.

Thanks a million.

Don’t you love the hubris? I’m not sure which part of the email is the best: Is it boasting of the “awesome skills” of her counsel? The “no payout will be warranted?”

I’m betting it’s the “thanks a million” part that really must be hurting Allstate now. Because the liability verdict found 65% in favor of the plaintiff, meaning that Allstate would have been on the hook for only 65% of $1.1M high-low, or $715K.

But instead the case then proceeded to a damages trial with this result this week in very conservative Suffolk County:

past pain/suffering: $500K

future pain/suffering: $750K

future medical expenses: $400K

future home health aid/ assisted living facility costs: $800K

Add that up, and it comes to $2.45M, and 65% of that is $1.6M. And the insurance policy was only $1.25M.

So, when Ms. Sewsankar wrote “thanks a million” she was off by a bit. (I emailed her for comment yesterday morning but she has not responded.)

Her hubristic and intemperate email will, no doubt, be part of plaintiff’s efforts to collect the excess against Allstate in an action for bad faith. Her snark may cost Allstate about $900K. Either that, or it may bankrupt its insured.

You can almost feel the love from Allstate’s “good hands” logo. Almost.

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