August 16th, 2019

Fault and Personal Safety

Most readers know that when I write about safety it’s with good reason: There’s no need to hold someone at fault for injuries/death if the incident never happened.

The concepts of safety and fault come from very different places. And while this seems like second nature to many of us, some folks seem to conflate the two concepts.

So let’s straighten out that misconception.

Personal safety is a basic animal instinct. It’s why Bambi fled the forest fire. Why turtles retreat into their shells at the sign of danger. Why civilians flee war. Why we avoid cars drunkenly weaving on the highway. Why we lock our doors at night. Why we teach our kids to be careful. It’s not about right and wrong, it’s a Darwinian instinct for survival.

We can’t, by our conduct, always guarantee that personal safety. After all, even the world’s best driver might be hit from behind by a millennial too absorbed with texting to notice the stopped car in front.

But we can take efforts to hopefully minimize that danger. Most folks, for example, won’t open attachments to emails from strangers. The fact that some Bulgarian criminal trying to place a virus on your computer is 100% in the wrong is cold comfort when dealing with the fallout.

Some people take good driving classes, for example, when they are learning and insurance companies (at least in New York) will give discounts for those that take them.

By contrast, fault is a human created legal system of holding people accountable for their acts after the conduct has occurred, whether the injuries were caused by negligence, recklessness or intentional conduct. That fault finding could be either civil or criminal.

I’ve spent 30+ years in the fault part of this dynamic, attempting to hold folks accountable on the civil side for conduct that is negligent or worse.

There are some people, however, who seem to think that urging people be safe is somehow giving a free pass to the malfeasors. This is particularly true in the realm of physical assaults when politics and passion seem to impair the ability to think logically.

Personal safety and holding people at fault are not incompatible. They are very much separate and distinct concepts. It’s why parents teach their kids to be careful to avoid incidents and why our justice system tries to hold people accountable after those incidents occur.

You don’t want to find yourself in a lawyer’s office after a bad event. Worse, your surviving family members don’t want to be there. I’ll often tell people you don’t want me to be your lawyer. Because if I am, something bad has happened.

So try to avoid the bad. It beats the hell out of assigning fault afterwards.

When I was a kid I had a little paperback book called “Tombstone Humor.” This epitaph (or something similar to it) stuck in my brain:

Here lies the body of John McCray,

He died defending his right of way.

He had the light, He had some pluck,

But the other fellow had the truck.

July 12th, 2019

Will New York Settle?

I started this blog in 2006 and there’s one subject I’ve never broached in over 1,500 postings: Settlements.

There’s a good reason for it, that being that a personal injury lawyer doesn’t really want to be known as the one that settles, but the one that takes a verdict.

If you prepare your case for settlement you are stuck — you aren’t ready for verdict. But if you are ready for verdict can you be ready to settle if the opponent asks that this door be opened. The defense lawyers and insurance companies need to know you are ready for verdict.

I have subject headings on this blog for Bork, beer, baseball and the Boston Marathon, but until this moment, no subject heading for settlements.

The last Legislative session changes that, however, due to a crucial change in the law related to settlements that passed both the Senate and the Assembly. If Governor Cuomo signs it. He should.

The settlement issue comes up in the personal injury context when you have joint tortfeasors. Assume that Defendant A wants to pony up some money but Defendant B does not. Presently, if you accept the offer from A, then B gets a choice after verdict regarding a set-off. B can either deduct the percentage of liability of A (the equitable share), or the gross amount of the settlement that came from the settling defendant.

This choice is a windfall for B. But worse than simply being a windfall, it actively discourages settlements. Few plaintiff’s want to see themselves stuck after a verdict with Defendant B getting the bonus of this choice. The devilish law is Section 15-108 of the General Obligations Law.

But it’s the public policy of New York, and I suppose every other state, to encourage settlements. It lowers the burdens on the courts, eliminates appeals, and a compromise brings finality.

What does the amendment do? It forces the non-settling defendant to make its choice of the manner of set-off before trial.

The justification of the amendment is:

The key feature of the statute, and the feature most criticized by the statute’s detractors, is that it rewards defendants who do not settle and can penalize plaintiffs and defendants who do. [This leaves] the non-settlor with the choice of an “amount paid” reduction or an “equitable share” reduction.

This benefits the non-settlor in two ways. First, in those instances in which the settling tortfeasor’s payment turns out to exceed what the trier of fact later determines to be the settlor’s equitable share of the damages, the non-settlor benefits by the difference between those two sums. The second benefit accorded to the non-settlor is that the risk of settlor’s solvency, formerly borne by the non-settlor, is now eliminated. The non-settlor is able to deduct settlor’s equitable share whether or not settlor actually could have paid such sum. By virtue of these features, the non-settlor often obtains windfall reductions of liability, usually albeit not always at the plaintiffs expense…
This bill would allow the non-settlor the same alternatives as currently exist, but require that the choice be made before, rather than after, trial. The non-settlor still would get to choose whether it will reduce its liability to plaintiff by the amount of the settlor’s payment to plaintiff or by the amount of the settlor’s equitable share of the damages. The difference is that because the non-settlor would have to make the choice before the verdict was rendered, there would be an added incentive to a defendant to settle, rather than to sit back and choose the “best of both worlds.”

Governor Cuomo should sign this common sense legislation. Or build more courthouses and hire more judges.

June 19th, 2019

Are Personal Injury Cases Plummeting?

Harvard Law introduced today something called the Caselaw Access Project. All they did was take 360 years worth of American jurisprudence until 2018 and make it easily searchable by terms. Then you can see trends.

How extensive is the CAP web site?

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

Just that. Pretty cool, right?

Given all the noise that gets made in the press about personal injury cases I decided to pop the phrase “personal injury” into the search bar to see how much of an impact my little corner of the law is having on the courts.

Two fast observations: First, as you can see from this graph for the years 1900-2019, the number of personal injury cases has been plummeting for the past 20 years:

On the vertical axis to the left is the overall percent of cases in which the term comes up. On the bottom horizontal axis are the years, and you can set whatever years you want in order to find the trends. I used 1900 as my start date because I’m a sucker for round numbers. You can noodle with it and pick other years if you like.

When you go to the live site you get more data than mere screen grabs and can fine tune a bit. And for this we find that the peak year was 1996 when the term was mentioned in 3.4% of the cases. And that was at the peak.

Currently, personal injury is mentioned in just 1.9% of cases, a stunning drop of 44% in just 23 years.

You can also, if you like, look at the data in absolute numbers as opposed to percentages. You’ll find a similar drop looking at it that way.

The drop is even more stunning when you use the word negligence (which obviously would be used more often due to a greater variety of circumstances). This time I ran the chart from 1800 until today so that you see an even longer term trend, from 14% to 6.4%, with peak use of the word in 1907:

What are the reasons for the drop? I’ll probably write more on that another day. But safer products, safer cars and safety laws such as mandatory seatbelts are likely to be contributing factors.

I speculated back in 2014 that the rapidly advancing tech that’s being designed for self-driving cars would have that effect, as some of the tech finds its way into “regular” cars. I described how that happens earlier this year in discussing the death of the stick shift, in part due to safety technology.

One more graph for you, this showing how the number of injuries from car collision has also dropped — from its peak also in 1996. This from the National Highway Transportation Board:

Expect a wealth of analysis to come out of this new website as policy wonks look more intensely as to the trends in our courts. It would be easy to spend hours looking at this stuff. I spent only 30 minutes, but will return.

Quick pro tip for law students: Don’t go into personal injury law.

June 18th, 2019

Geico Asks for Immunity

New York’s annual legislative session ends Wednesday. And that means, predictably, a mad rush to get legislation enacted without having to wait another year. Or, conversely, a mad rush to stop legislation.

And that’s where we are today, with Geico attempting to halt legislation that would hold it (and other insurance companies) accountable for bad faith in settlement negotiations. Yes, out-of-state-readers, it’s true, New York currently has very limited ways to stop insurance companies from trying to screw you over in your time of distress.

This legislation was first proposed in the wind-swept wake of Hurricane Sandy in 2013, when insurance companies thought it would be a really cool idea to deny coverage for damaged homes. If a policy excluded wind damage, the insurers would claim water was to blame. If it excluded water damage, they would claim wind was to blame.

The denials had a common background – they were dealing with people who had their homes destroyed and were, therefore, in great economic distress. Because everyone needs a roof over their heads. So the denials gave the insurance companies some, let’s call it, leverage.

Delay and delay and force the homeowners to hire lawyers to sue. Then, when the pain is deep enough and the homeowners desperate enough, maybe settle for 50 cents on the dollar. Or 70. But even if the insurers had to cough up 100 cents on the dollar on some claims, so what? That was merely what they had to do anyway. Every cent saved was profit.

And that is part of the base model of the insurance company: Take in as much as you can in premiums and pay out as little as possible and invest the money in the interim.

The legislation that is proposed, that Geico is afraid of, would put a stop to that as well as bad faith tactics in auto policies and elsewhere.

Right now, in an auto case, if an insurance policy is only the bare minimum $25,000 or maybe $100,000, and the damages are $500,000, the insurance company has a vested interest in offering only a portion of the policy. Sure, it’s possible that someone will spend $20,000 and try the case to verdict. But that often makes little economic sense, and all the lawyers know it. You can win but still lose. So why offer the whole policy even if you would, in good faith, owe it?

The only avenue for relief currently is to take an excess verdict against the insured when the insurance company has elected to put its own interests ahead of those customers, because you can’t sue the insurance company directly.

And then, and only then, if the insured is smacked for a big, fat verdict in excess of the insurance policy, there might be some relief. But that relief only comes if the defendants — who you just sued and perhaps, inflicted a bit of anxiety on — then assign their own rights to sue the insurance company for bad faith back to the people that had sued them. And if those people are gone? Or say “screw you, we don’t feel like helping you as we got nothing to take anyway so it doesn’t matter to us?” Well, sorry Charlie.

The bad faith legislation that is now pending would fix this problem, a problem created by the fact they are currently required to act in good faith but there is only one very poor method of enforcement.

Enter, stage right, Geico to oppose this common-sense legislation. In a mass email yesterday from Rick Hoagland, a Geico senior vice president, to its policy holders, it urges people to call their legislators to stop the legislation and protect the insurance company profits.

OK, maybe Hoagland didn’t word it quite that way. He claimed, instead, that legislation protecting both policy holders and the people they may injure would somehow be bad for them. George Orwell would have been proud.

He writes, instead that:

I am the senior vice president of GEICO, your insurance company in New York, and I am writing to ask for your help. The New York State Senate and Assembly are considering multiple pieces of legislation in the next few days that, should they pass, will likely increase insurance premiums for YOU and all New Yorkers, even if you’ve never had an accident.

He doesn’t say it would increase premiums but rather, he speculates. He provides no empirical data. More importantly, he doesn’t tell his insured that the legislation protects them from the bad faith practices of Geico, the company that they paid money to in order to protect them in the event something goes awry. And it is those bad faith practices that could put their own homes at risk in the event of a verdict in excess of their insurance policies.

And, of course he doesn’t tell his readers that the bills are designed to protect them. No, he claims that they “make it easier for trial lawyers to sue insurance companies.”

Here’s an idea, why not just put us personal injury lawyers out of business by dealing in good faith to begin with? Look, Geico I solved your problem! (You’re welcome. No charge.)

Here’s the Geico pitch, compete with links to the bills, which I urge people to read so the they know they are consumer protection bills. The reason he provided links is because he knew, no doubt, that few people would actually click them or get an explanation as to their true purpose:

Assembly Bill 5629-B and its companion bill, Senate Bill 3634-B, along with Assembly Bill 5623 and its companion bill, Senate Bill 6216 , are going to make it easier for trial lawyers to sue insurance companies and will have negative, long-lasting impacts on New York policyholders and taxpayers. (Simply click on the appropriate bill number to link to the text of the legislation.)

The legislation would allow a direct case against the insurance company for bad faith, so that the victims don’t have to rely upon the people they just sued to tender their rights against the insurers.

Geico, of course, would like to make enforcement of good faith laws difficult, thereby giving it a certain level of immunity. Why not offer 20K on a 25K policy when you know it will cost the injured plaintiff that much just to try the case? There’s almost no downside for them for acting in bad faith.

It’s time New York finally put a stop, once and for all, to the bad faith of insurance companies. The law requires good faith dealing and the Legislature should give consumes the tools to enforce it.

The email is here:

May 14th, 2019

Dear Media: Can you stop using the word “accident”?

I think I need a “Leaving Accident” sign.

It’s a funny place to find a story on personal injury law — inside the pages of Outside Magazine. But when a good point is made, it makes no difference where that point is found.

Outside gets involved because the article is called: How We Talk About Drivers Hitting Cyclists. It seems that bicycle riders aren’t too keen on getting hit by vehicles that are much bigger than they are, and getting squashed or worse. And so, an outdoors magazine hits a junction with personal injury law.

Their story starts with a triathlete out for a spin getting bounced off the grill of a Ford F-150 and soaring through the air to an unhappy landing that was, thankfully, survived, albeit with significant injuries.

But the story isn’t really about that one rider, or the many other bicycle riders that have been hit and injured or killed by cars and trucks.

The story is about how the media writes about those crashes, with the subtle (mis)use of language leading to a shifting of blame, or a minimizing of the significance on how the crash took place:

News stories often play a key role in shaping public understanding of traffic safety. And when news stories victim-blame or fail to convey the larger context in which these crashes take place, they do deep injustice to the victims and the conversation about road safety in general.

In the past, I’ve noted that the word “accident” is a poor language choice to describe a motor vehicle collision or other mishap, as that word is the same one used for a deer that bolts into the road. Why use the same word for an unavoidable crash as you would for one that is avoidable with reasonable care?

Even the NYC Police Department noted this problem in 2013 when it changed its Accident Investigation Squad to the Collision Investigation Squad.

Sometimes, of course, this misuse of language is intentional. Such was the case when Senator Rand Paul decided to excuse the negligence of BP during the Deep Water Horizon blowout in 2010 that polluted the Gulf of Mexico:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,”

Well, yeah. It wasn’t Mother Nature at fault there. It was humans. And the question was who to hold accountable for the disaster. That assumes, of course, that Senator Paul actually cared about accountability.

OK, I digressed. Let’s return to the unintentional biases of language that gets used to whitewash responsibility.

Outside writer Joe Lindsey breaks it down further that I simplistically had on prior occasions, with these points that come from two studies on the use of language in media:

Two new studies on inaccuracy and subtle bias in mainstream-media reporting about driver-cyclist crashes highlight the extent of these issues. What they show make clear just how deeply rooted the problem is—and how difficult it will be to fix.

Those studies fixed on three issues related to language: First, words that indicated whether the cyclist or the driver was assigned blame for the crash; Second, the use of passive, clinical language that reduced the human role; and Third, whether the stories framed the crash as a one-off episode or put in a larger context of road safety.

In reviewing 200 serious crashes, researchers found that in 80% of them, news writers described the main actor in the crash as a vehicle —- not as a person:

“Sometimes the story would say that the person was hit by a car, which is passive,” says Tara Goddard, an assistant professor of urban planning at Texas A&M, who was involved in the study. This language distances the driver’s actions from the crash.

Cars, of course, don’t generally get up out of the driveway on their own to run someone down. A driver needs to be involved.

And then there’s the use of the word “Accident.” The other of the two studies found that in 189 news reports of cyclist fatalities in crashes in a Florida county over a ten-year period, that “accident” appeared in 48 of them; another 12 used the word “incident.” In 55 of the stories, no mention was made of a human driver.

Of course, except for those cases where nature has intervened (the deer bolting into the road example) virtually every crash involves human error of some kind. But the stories, oft times, simply don’t reflect that.

And third, there was the victim blaming. While this may be an age-old staple of both criminal and civil defense trial lawyers, the objective media writer doesn’t stand in the shoes of an advocate.

Why, for example, would a news writer mention that a cyclist who was hit by a truck moving 60 mph note that the rider wasn’t wearing a helmet? It wouldn’t matter, so why skew the reader toward a narrative that is utterly irrelevant?

Presenting factoids, the Outside piece argues, takes the light off of significant safety factors (for example, road design) to make the crash seem like a one-off instead of part of a larger community safety problem.

This factoid presentation is then compounded, sometimes, by bias, or simple sloppiness of an investigator who provides initial thoughts to the press — thoughts that are often wrong, as the Gothamist has pointed out.

The desperate need for speed in reporting these days, with news cycles that have evaporated, means that initial information (often from anonymous police sources) is often both wrong and repeated.

But the limitations and problems of the need to file stories quickly are, by now, well appreciated by the press. And it means that they need to be doubly careful in that choice of words: Careful that crashes are not downgraded to mere accidents; that drivers/riders are held to blame instead of vehicles; that collisions are seen within the broader context of community safety; and that victims are not chastised as blameworthy based solely on irrelevant factoids.