December 7th, 2011

The Ostrich Offense

Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)

But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.

The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” (citations omitted)

The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.

I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.

(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)

More on The Ostrich Case:

Was Judge Posner a Dodo in His Ostrich Opinion? (Lat @ Above the Law)

Who’s the Ostrich? (Palazzolo @ WSJ Law blog) – in which the mocked lawyer responds

Judge compares lawyer to ostrich (Pallasch @ Chicago Sun-Times) Lawyers don’t recall ever seeing pictures to make rhetorical point.


July 27th, 2011

Taconic Wrong-Way Crash: Does State Share Part of the Blame?

Source: New York Times

Two years after a horrific wrong-way crash on the Taconic Parkway made national headlines when eight people were killed, a new lawsuit was filed that looks to examine if the State of New York shares blame.

Toxicology reports after the crash had showed minivan driver Diane Schuler was drunk and high when going the wrong way on the Taconic while loaded down with kids, only to slam head-on into an SUV carrying Michael Bastardi Sr., Guy Bastardi and Daniel Longo of Yonkers. All three were killed. Ms. Schuler of Long Island was also killed, as were one of her own children and three nieces in her minivan. The sole survivor of the crash was another of Schuler’s children, 5-year-old Bryan.

Now comes a lawsuit by the Estate of Diane Schuler against the State of New York that owns and maintains the highway, which will explore whether the State shares responsibility for this horrific crash with Ms. Schuler.

While the gut reaction of many is to demonize the drunk driver and vilify the husband for defending her, that is not my gut response when I put on my lawyer hat. For if the entrance/exit ramp was poorly designed and signed (I write “if” since I don’t know), then in fact there may be some portion of liability for the State. And that comes under the theory that, if poorly designed, this was an accident waiting to happen. A trap for the unwary, or impaired.

And remember that impairment may take several forms, not just the self-induced kind. There could be weather or medical conditions that could likewise cause impairments. This is not exactly unknown to those that design roadways who are charged with the duty of making them as safe as reasonably possible.

So if, in fact, a defective roadway design is found (and there may well be other complaints/incidents regarding it that the attorneys would be looking to investigate), then we may see the State of New York on the hook for a portion of the damages.

In today’s Journal NewsMichael Bastardi Jr., who lost his father and brother in the crash, was quoted as saying that:

“Daniel Schuler (the husband) is blaming “everything and everyone except his wife.”

“He’s just avoiding the true reasons on why this all happened,” the younger Bastardi said. “It’s pathetic and it’s an insult to all of us.”

Mr. Bastardi may be right, but then again he might be partially in error if there were other incidents or complaints regarding the same entrance/exit interchange. And that is the part where we need to put on our thinking caps, and go through the issues of whether a wrong way driver was reasonably foreseeable at that spot, and what (if anything) could have been done about it. It may well be a fruitless exercise, but one can’t reach that verdict without at least looking at the evidence.

There are a lot of lawsuits in this case — at least five I think — with loads of different conflicts due to the nature of family members being killed. For example, Daniel Schuler is a victim, having lost his wife and child and had another badly injured. He and his young children have sued their mother, and he represents them. And he may also be a beneficiary of suits by the Estates of his wife and lost daughter.   And Warren Nance, sister of Diane Schuler and father of the three daughters killed in the crash is a victim, plaintiff, and defendant (as owner of the car and having had a discussion with Diane that day).

As a result, I won’t try to  untangle the mess of lawsuits going on, and confine myself to the narrow subject of the suit against the State, but for those interested, here is a list of the suits (I’ve shortened the titles a bit), with some of the documents, followed by additional news links.

Also, note that suits against the State can only be brought in the Court of Claims, and are non-jury. Court of Claims suits may not have other defendants, thus the litigation proceeds on two tracks even if all the other cases brought in the main trial court (Supreme Court) are consolidated.

These are the suits, as best I can determine, with the first one being the Court of Claims case:

1.   Daniel Schuler, as administrator of the Estate of Diane Schuler, and Brian Schuler, an infant by his father and natural guardian, Daniel Schuler v. The State of New York (David Waterbury is plaintiff’s counsel, who I know for about 20 years; Schuler-CourtOfClaims-S&C
2.   Daniel Schuler, as administrator of the estate of Erin Schuler, and Brian Schuler, an infant by his father and natural guardian, Daniel Schuler v. The Estate of Diane Schuler, Estate of Michael Bastardi, and Warren Hance (Kevin T. Greenan is plaintiffs’ counsel;  SchulerSupremeCourtS&C)
3.  Joseph Longo As Administrator Of The Estate Of Daniel Longo v. the Estate Of Diane Schuler, Warren J. Kance, and Roseann M. Guzzo As Administratrix Of The Estate Of Guy T. Bastardi (LongoSummonsandComplant; John Guarneri, counsel for the plaintiff)

4. Roseann M. Guzzo, as Administratrix Of Estate Of Guy T. Bastardi, and Roseann M. Guzzo and Irving Anolik, as Co-Executors of the Estate of Michael Bastardi, Sr. v. Estate Of Diane Schuler, and Warren J. Hance (BastardiSummonsandComplant; Brian Sichol is plaintiff’s counsel)

5.  I don’t have a copy of this one yet, but the three Hance nieces v. Estate of Diane Schuler and ?  (Represented by Kenneth Pryor of Mineola)

ABC News:  Mother of 3 Girls Killed in Taconic Crash Sues Daniel Schuler

New York Post: Wrong Way Family Feud

OverlawyeredDiane Schuler’s husband suing state, brother-in-law over wrong-way Taconic crash


September 16th, 2010

Michael Jackson’s Mom Brings Wrongful Death Suit (Analysis)

Fresh off the news ticker this  morning is that Michael Jackson’s mother Katherine Jackson has brought a wrongful death action against concert promoter AEG. on behalf of Jackson’s three children.  According to the article, the promoter was negligent in allowing Dr. Conrad Murray to care exclusively for Jackson.

The merits of that argument will rely, no doubt, on some contractual provisions between the promoter and Jackson dealing with his health. Those who give on the spot opinions as to whether the suit is good or not, without knowing what those contracts say, will likely be speaking in a vacuum.

But that doesn’t mean that the commentariat can’t engage in issue identification to see where potential problems may arise.

While at first blush the mixing of contract law and tort law (negligence) might sound unusual, this actually happens with some frequency when hospitals are sued regarding their liability for doctors that work at the hospitals. Some are employees, and some are independent contractors. Depending on the state you are in, it will likely depend on the written contract as well as whether the impression was given to the patient that the doctor was an employee. So that is how contracts and torts may mix, but the Jackson case is clearly unusual in that he was outside the hospital, and depending possibly on who was paying Dr. Murray.

I’ve written about the potential for such a wrongful death suit before, so I’m not going to re-invent the wheel. Below are my prior posts and ruminations, with the top one looking at not only the employment angle, but also the difficulty in calculating the loss.

On the one hand, the estate has reaped spectacular sums of money with Jackson’s early demise, as so often happens with celebrity death. So wouldn’t that offset any recovery from AEG, if such recovery were possible, rendering the suit moot? Perhaps not. In New York, the damages are fixed at the time of death. What happens after death doesn’t count. But if the future profits were foreseeable, then perhaps part or all of that money should be used to offset any recovery?

This is gonna be one funky case when it comes to calculating damages, worthy of being a law exam question. And it’s even more unusual because the kids likely don’t need any of the money

And what of a malpractice suit against Dr. Murray? It would likely yield little (unless he had some kind of extraordinary malpractice policy just for Jackson), under the well-known legal principle that you can’t get blood from a stone. The article doesn’t say if Murray  was sued, but if not, the promoter may start a third-party action, point the finger at him, and say “look over there!” Or they may simply point at the empty chair and ask a jury why the obvious culprit wasn’t sued.

Other legal action related to this: Jackson’s father Joe Jackson has brought his own wrongful death suit. And Dr. Murray is facing charges manslaughter charges. Prosecuting doctors for manslaughter is not unprecedented, but as one of my guest bloggers previously wrote, it is quite rare.

My prior posts on the subject:

Michael Jackson’s Mom To Start Wrongful Death Action Against Concert Promoter? (February 11, 2009)

Michael Jackson: Malpractice or Manslaughter (Or Something Else)? (August 16, 2009)

Michael Jackson: The Mother of All Malpractice Suits? (August 6,2009, one day after death)


June 29th, 2010

A Dead Child In Central Park (6 Legal Issues)

It is rare for me to discuss a local accident. But I do so today regarding the tree limb that fell over the weekend killing a 6 month old girl in Central Park that also critically injured her mother. She was holding the baby and posing for a picture being taken by the father on a clear summer’s day. It is, essentially, a trauma that could have happened to anyone.

And I write because WABC-TV called me to discuss the liability issues on the air, and it raised a number of concepts that local television isn’t really equipped to handle in soundbite format. And the last two of those issues are things that the Legislature should address:

First — A Duty to Inspect: The tree was inside the Central Park Zoo, run by the Wildlife Conservation Society that also runs the Bronx Zoo. But the limb was overhanging an area just outside the zoo where it came down. Who’s responsible? The answer is that the owner of the tree has a duty to inspect and maintain that tree. And the landowner over which that limb hangs, and under which its patrons walk, also has that duty. And given that this is not an obscure part of the woods but one of the most heavily trafficked spots in Central Park, that duty is rather substantial.

Second — Contractual Obligations: Based on news reports, the Central Park Conservancy has a contract with the Parks Department to do inspections. This would be a contractual obligation that could likewise make them a defendant if a suit were brought.

Third — Notice of a Troubled Tree Limb: The issue of notice is critical, meaning that the zoo/park would be responsible only if they knew, or should have known, that there was a problem with the tree limb. This is similar in concept to the banana peel on the supermarket floor. Just because someone slips on it doesn’t make the store responsible. The store needs to have known it was there (an employee saw it or customer told them) or it was so blackened and old that it is clear the store should have known about it with reasonable care. Those same concepts apply to the tree limb, and much will be made in the investigations about the adequacy and reasonableness of the inspections that took place (if they took place).

Fourth — The Rush To Find a Lawyer: This veers off now away from responsibility to the sad fall-out of tort “reform.” If a municipality is going to be sued, then local laws require people to file a Notice of Claim within 90 days of an incident so that the municipality can investigate. That means that while the husband/father is grieving and trying to help his stricken wife, he has to go looking for lawyers and meeting them. That is terribly unfortunate, but the sad result of attempts by our Legislature to limit actions by forcing excessively tight limitations periods on those that have been injured.

Fifth —  The Demand for Damages: Not only must the father find a lawyer fast (and without a clear head he runs the risk of making a mistake in who he hires) but that lawyer must then make a demand for damages in that Notice of Claim. In other words, without even knowing what the future holds for his wife, there must be some number stuck in the Notice. This is a practice that has been mostly legislated out of existence, except for this one place in the Notice of Claim. But that number will bear no relation to reality. Since the extent of the injuries won’t be known at such an early stage, the lawyer must cover all contingencies and assume a worst case scenario. But this unrealistic number will then be broadcast in headlines far and wide by the media as if it actually has meaning. The Legislature should get rid of this provision, as it serves no useful purpose whatsoever other than for headline writers.

Sixth – Valuing the Life of a Child: In New York, unlike the vast majority of other states, a parent cannot sue for grief over the lost child. An action can only be brought for the pain and suffering of the child, or a wrongful death action for the financial loss. So if a child was knocked out at the time of a car accident, for example, and doesn’t physically suffer and  dies afterward, the law deems the child’s life to have little value since there was little financial loss to be expected. The family is thus unable to hold accountable those that did the true damage.  While some may feel odd about financial recoveries under such circumstances, it is really up to the people who suffered the loss to decide if they wish to donate money to charities, fund education, or embark on any other type of expense that they believe appropriate. The Legislature should bring our archaic wrongful death law into the modern era, and rid us of  this insult to grieving families.


January 29th, 2008

Woman Falls From Operating Room Table and Dies

She just had hip surgery, and was still anesthetized. But when a safety strap was removed, Catherine O’Donnell somehow slipped off the table and slammed her head on to the floor fracturing her skull. A week later, the 86-year-old woman was dead despite a second operation that removed part of her skull to relieve pressure from the bleeding. (Boston Globe). Her family has now brought a wrongful death suit in Massachusetts.

What is interesting to note, from the legal end, is that if such an instance happened here in New York the family would likely have a hard time finding an attorney to handle it. This is exactly the type of avoidable accident that doctors and hospitals mostly enjoy immunity for. Here’s why:

A lawsuit such as this has just a few essential elements of damages. Conscious pain and suffering and pecuniary loss (such as wages) are usually the major ones. Assuming the 86 year old wasn’t working, however, her survivors likely has little pecuniary loss unless there are some types of pensions or similar revenue. And as to conscious pain and suffering, there is zero if she was never aware of what happened to her. In New York, there must be some level of awareness of the pain and disability. There may be a claim for loss of parental guidance, but the children would all be adults and the claim minimized due to that (relative to such a claim for an infant). There may also be a spousal claim if her husband survived her (not noted in the story.)

That leaves just grief for the surviving family. But unlike 42 other states, grief for surviving families is not compensable in New York in accordance with a law passed in 1847. ( See: The September 11th Lawsuits And The Problem Of Compensable Grief in NY) So the family is stuck, basically screaming at the wind for what happened, with no outlet for their grief.

People often make the assumption that lawsuits are “all about the money.” Sometimes yes, but often not. With the loss of a family member, a family is often looking for answers and accountability. The courtroom, on an emotional level, often substitutes for the vigilantism that might occur based on anger.

While I had written just last week about my own handling of a woman with a ruptured brain aneurysm that fell off an angiogram table (see: Straying from Your Field of Practice), that woman had survived and was in massive distress. But wrongful death claims for the elderly (or even more sadly, for a child) often enjoy a de facto immunity here in New York.

(hat tip: Kevin MD)