April 30th, 2024

Protesting Students and January 6ers

Across many college campuses now there are various anti-Israel protestors that are, to varying degrees, yelling, hanging signs, occupying walkways and common areas, and on occasion occupying and vandalizing buildings.

And, in conduct that is incredibly easy to predict as it parallels much of partisan politics, people will do everything to highlight both the absolute worst (or best) of whatever opinion that they have. And, by implication, try to show that the folks highlighted are representative of the whole.

In the January 6 cases we saw some who violently attacked the police and actively stormed the Senate to stop votes from being counted. Others strolled in after the damage was done and took pictures. And still others stayed outside and never entered, perhaps just wandering past the line of busted barricades that may, or may not, have even been there anymore.

Every case is different.

But the analogy to those Trumpers is perfect for the kids on campus today. Many call for the extermination of Israel (“from the River to the Sea”) or other forms of violence as to Israel or Jews generally. You need not look hard to find these. Unlike Vietnam era protests, these people don’t call for peace but for war.

Others are simply clueless, and could not name the river in question, and have no idea that it’s a call for extermination.

Some are violently attacking police and vandalizing buildings. Others are standing around either watching or half-heartedly chanting because, “hey, there’s a protest, and that cute classmate asked me to go.”

The vast majority would probably fail a course on the basics of the current Arab-Israeli conflict that dates back 100 years.

The point, of course, is that each of the arrested students — and there will be many — will have their days in court. Each case will rise/fall on the details of that particular student. Pretty much like every other case in the courthouse, be in criminal or civil. Because details matter. Just as in the January 6 cases.

In the meantime, for any student that may be reading this, the very, very old adage applies of “don’t do the crime if you can’t do the time.”

But unlike in days of yore, it’s not just jail time that might be at issue for those arrested, as future employers now have the internet. And if you’re arrested while standing in a crowd with people holding signs to “globalize the intifada” you should fully expect that future employers will find it.

They won’t give a damn if you were not holding that sign. And if you try to claim it was written in Arabic, and that you couldn’t read it, they will just assume that by joining a protest that you didn’t understand that you are also too dumb to hire. It won’t matter if you agree, because you’re not the hiring manager.

Be careful of the company you keep.


January 4th, 2024

Hochul Vetoes Grieving Families Act Again

I’ve written before about the Grieving Families Act, a badly needed update to New York’s wrongful death statute that dates to 1847. My first post was in 2017, but a version of the bill has bounced around Albany for 30 years.

By way of brief background, for those too lazy to hit the link above, in a wrongful death case in New York there is a claim for monetary loss – be it lost wages or even the economic value of cooking and cleaning that one household member might perform.

But there is little monetary claim over the loss of a child, or a retired parent, or a disabled family member. If you are rich, the pecuniary claim may be large, but if you are not, then you may be as we lawyers like to say, shit out of luck. This restriction obviously has a disproportionate effect on those with low incomes.

Enter, the Legislature, which in 2022 finally passed a bill after long efforts that allowed for family members to make claims for grief, as can now be done in 48 out of 49 other states. Gov. Kathy Hochul should have signed that bill, passed by large majorities of both legislative houses. But she vetoed it.

So last year the Legislature tried again, and passed a more limited bill (restricting the definition of family members), again with overwhelming support. The new bill offered several modifications to win the Governor’s support:

“These narrowed the pool of family members eligible for damages, reduced the statute of limitations from three-and-a-half years to three years, removed a provision that would have covered disorders resulting from grief and limited retroactivity only to incidents that occurred on or after July 1, 2018.”

But on December 29th, she vetoed that one also.

An article in City & State New York, gives the background of that veto: Hochul wanted to lard it with so many poison pills it would be completely neutered:

In her counter-proposal, a copy of which was shared with City & State, Hochul suggested limiting the law only to deaths of New Yorkers 18 and under, completely removing retroactivity for existing lawsuits, lowering the statute of limitations from three years to two (which is the current law), rejecting any expansion of family members eligible for damages under the statute and setting a sunset date of three years after the law took effect. 

These restrictions simply gut the whole point of the bill.

Her complaint that the bill would wreak havoc on businesses is belied by the evidence. As an op-ed in Albany’s Times Union notes:

 In 2019, plaintiffs filed approximately 77,427 tort cases in New York. Of those, only 126 cases involved claims for wrongful death — a microscopic .15% of all cases — according to state Office of Court Administration data. This statistic exposes the absurdity of any prediction that the act would cause even a 1% increase in losses.

Since both the Senate and the Assembly are both currently governed by the Democrats, and the Governor is a Democrat, they are loathe to override her veto. Making enemies within one’s own party is not necessarily the secret sauce of success on a wide range of other issues that confront legislators and demand negotiation. As per NY Assembly leader Carl Heastie:

“Even though he is disappointed with the governor’s vetoes, Heastie is not ready to discuss veto overrides.

“[Veto overrides] are always…nuclear options and you would hope to never get to that point,” Heastie said. 

He pointed to the Legislature’s historic cooperation with Hochul over the past few years.”  

On the other hand, given Hochul’s extreme position that she will only a wholly ineffective bill, then override is the only alternative.


January 2nd, 2024

Now the WSJ likes Trial Lawyers?

Every trial lawyer knows the routine: Bash us until you need us. Then we become your best friends.

And so it is with the Wall Street Journal. They are rightfully unhappy about two things — that anti-Israel protestors are blocking highways to airports and disrupting others from going about their business, combined with the fact that the police will likely do little:

Normally we wouldn’t wish trial lawyers on our worst enemy. But as anti-Israel demonstrations grow increasingly lawless, the plaintiffs bar could help. Why not hit protesters who break the law and keep Americans from getting to their destination with a tort liability suit for false imprisonment?

A fine idea in concept. Sue the people obstructing the public way for false imprisonment, and also I suppose, for any costs associated with missed flights, vacations, etc. The WSJ lists other “protests” including the Macy’s Thanksgiving Parade, Rockefeller Center tree lighting among others in the past.

Before I go into why the idea isn’t really all that hot, let me first remind readers that blocking roads is just about the dumbest type of “protest,” because they are not only attacking the wrong people but making them hate your cause. See, Well that Wasn’t Very Persuasive.

And after being annoyed at the police for not doing more — would the WSJ like to raise taxes to pay for more police? Asking for a friend — they launch into their Big Idea:

In the absence of real criminal penalties, the protesters’ escalating resort to lawlessness calls for some creative class actions. Tort actions would hit the lawbreakers in their pocketbooks, even if district attorneys like New York’s Alvin Bragg won’t prosecute them.

Protesters have the right to call for a cease-fire, denounce Israel for “genocide,” and chant “from the river to the sea” all they want. They can protest within orderly parameters. But it’s long past time American justice made clear that, however right they think their cause, protesters can’t legally prevent their fellow Americans from going about their daily business.

Except for a couple of small problems. The kids doing the protesting aren’t organized by anyone with actual money to pay a damages award. And it’s unlikely that the actual protestors have more than a pot to piss in. And intentional torts aren’t covered by any kind of insurance, as that would be against public policy.

So, dear WSJ, who is going to pay for your Big Idea to sue the protestors knowing full well that there will be no recovery? Whose time is it that you think should be spent? Who will be paying the bills?  

I suppose, in theory, that a GoFundMe type collection could be done to pay some lawyers to do the work. And if successful, the payoff would be judgments against the protestors that would muck up their credit for years to come.

But that’s about it. Perhaps that will be worth it to some —  in the absence of any real law enforcement action, and a willingness by judges to dump guilty protestors in the pokey for a week or so to help persuade them not to do it again.

If the WSJ thinks any real money will change hands, however, they had best remember something trial lawyers learn when young — you can’t get blood from a stone.


July 6th, 2023

Surgery is not Spoliation – Again

If was a dumb argument when I first heard about it: That a defendant in a personal injury case had a right to “independent medical exams” of the bodies of injured plaintiffs before they were operated on. And if they didn’t get it, they demanded a sanction for “spoliation” of the evidence — the evidence being the body of the injured person.

Back in late 2021, that argument was dumped on its head by the Appellate Division (First Department), as was the argument that the defense medical exam was somehow independent (The “Independent” Medical Exam is Dead).

And now the Second Department has likewise dumped on the idea, citing to the First Department’s holding in Gilliam v. UNC Holdings:

While the Court ignored the issue of calling such an exam “independent,” it unequivocally held that injured plaintiffs had every right to undergo surgery without first giving defendants access to their bodies for an exam. Citing from the First Department holding in Gilliam, that Court said that the:

“state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” 

“[p]laintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forgo surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury”

And with these following words, the Second Department, joining the First, which will hopefully put a final nail in this stupidity:

It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed”

The case is Fandeau v. Corona Industries, decided June 28th.


July 2nd, 2023

July 2nd, A Day to Celebrate Independence

While the Declaration of Independence isn’t perfect, it is nevertheless inspiring. Documents drawn up while tempers are hot and guns are blazing may well reflect that.

And that document was approved by the Continental Congress on July 2nd, to be famously signed two days later.

John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I do mention imperfect, because as glorious as “all men are created equal” may be, a line celebrated by civil rights advocates the world over, it also contains within its bill of particulars a reference to “the merciless Indian Savages,” and the condemnation of slavery was struck from the original “Rough draught.”

As memorialized later in the Constitution’s preamble, the object was to “create a more perfect union.” There was, and always will be, room for improvement, as is clear by changes that have been made to the Constitution since then.

The great experiment with our democratic republic marches on, always imperfect, but striving to do better.

In past years, I have used a July 2nd post to celebrate juries, which are discussed in both our founding documents. For the Founders knew that the distribution of power — residing ultimately in the People and not the Crown or Bench — was so important.

I don’t really care if you click on the links for my older posts, but I do hope you will read, as I do each year at this time, our Declaration, republished below. Also, at the very end, a song about who should draft the great document. Just because.

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.