October 20th, 2017

Lawyers (and other advocates) Need A Hobby

The Paine to Pain race logo

All too often in life, those who are professional advocates get so wrapped up in their little piece of the world that they fail to see the bigger picture. This happens with lawyers, of course, but likewise with any political advocacy group you find.

Go to Twitter, for example, and you’ll see no shortage of people obsessed about one thing, and one thing only (and that one thing is, all too often, politics).

But if you want to be effective, you have to actually leave that advocacy behind and engage your heart and mind in a completely unrelated hobby. Only then can you step outside of your work and even attempt to view it objectively.

If you are advocating, then you need that objectivity, because the people you’re trying to convince are not those that already drank your flavor of Kool Aide. The advocacy is geared toward are those that don’t have an opinion, or are open to being persuaded because they are not all-consumed with confirmation bias.

For me, as regular readers know, that hobby is putting on the Paine to Pain half marathon trail race each year that now attracts about 700 athletes from 15 states. We get about 200 volunteers to help. This is not a small undertaking on my part.

But, believe it or not, I think this makes me a better lawyer. While it is time spent away from writing briefs and “being productive” in the office, it helps to give me perspective.

Having raced over these trails, and seen so many others do it including some with disabilities, I’m more rounded as a person. Not because it’s running, but because it is something other than lawyering.

It also makes me a better project manager, which is a large part of being a trial lawyer if you are the one with the burden of proof. If you don’t line all your ducks up in a row and prepare, prepare, prepare, then you won’t succeed, regardless of whether the “event” is a trial or a conference you are directing.

It doesn’t really matter what your passion is outside of your area of advocacy. It could be sports, music or your local church/synagogue/mosque. If it happened to also be a community based hobby, as mine is, you will also get the incidental benefit of becoming more well known in your community, which might bring with it unexpected opportunities.

If your advocacy consumes you and you can’t look at the rest of the world objectively, you aren’t going to be a very good advocate. Engaging those outside hobbies are critical to perspective and effective advocacy. And might have additional professional benefits.

September 6th, 2017

New York Attempts Real Tort Reform

When I use this blog to write about tort reform, it’s often with scare quotes around the reform. Because reform means to improve something, not destroy it. When that phrase is commonly used, however, it’s used in conjunction with finding ways to close the courthouse doors to those who’ve been injured or wronged.

But that doesn’t mean that real tort reform isn’t taking place. Just this past year we saw three bills pass the New York Legislature by wide bipartisan margins, all currently awaiting the signature of Gov. Andrew Cuomo:

A subtle change in mandatory supplemental insurance if you are hit by an uninsured or underinsured vehicle that is likely to have a very dramatic positive effect for most drivers that carry more than the minimum insurance;
A “date of discovery” rule for medical malpractice cases, so that the statute of limitations starts to run in cancer cases from the date the malpractice could reasonably have been discovered, not from the actual date of the malpractice; and
A change regarding venue, so that cases can now be brought where a collision actually took place, even if none of the parties live in that county.

But there are more bills in the hopper, and by hopper I mean pending at various points in the vast legislative maze that needs to be navigated before any bill becomes law. Sam Senders, one of my readers who does structured settlements for Arcadia Settlements Group, put together a short list that he shared on LinkedIn, that you see below.

Perhaps if people started using the phrase tort reform properly it would shine a big, bold light on those that actually try to deform the civil justice system by slamming the courthouse doors closed on consumers.

Sam’s list of bills, with my editorial comments, that constitutes real tort reform:
—————–

1: Admissibility of an Opposing Party’s Statement: This bill modestly changes a hearsay rule by making admissible statements made by a company’s agent or employee. This change is supported by the State Courts of Superior Jurisdiction Committee and Tort Litigation Committee.

2: Apportionment of liability: This bill comes into effect in tort cases where one defendant has settled, so that the remaining defendants must elect prior to trial whether to reduce liability by the amount of the settlement or by the amount of the equitable share of damages delegated to the settler in the verdict. Currently, the law is that a non-settling defendant gets a setoff from a settling defendant equal to the greater of the actual amount paid or the percentage of liability, with the determination made after verdict. This current practice actually acts to dissuade settlements, and that runs counter to the public policy of the state which is to encourage them.

3: Expansion of economic and non-economic damages: This long overdue bill adds to the types of damages that may be awarded to people for whose benefit a wrongful death action is brought, to include grief. Currently, New York is one of the few states in the nation that, by law, refuses to recognize grief as an element of damages in wrongful death cases.

4: Expansion of judgment creditor’s rights: This bill would add a new Section 1405 to the Civil Practice Law and Rules to expressly permit a plaintiff, as judgment creditor against a defendant, to recover and collect an unsatisfied judgment or portion of a judgment directly against a third-party defendant found liable for contribution or indemnification.

5: Prohibits ex-parte interviews on personal injury and medical malpractice cases: Currently, defendants are permitted to interview a plaintiff’s treating physicians. Without a stenographer. Without the plaintiff or counsel being present or even notice being given to the plaintiff that the interview will occur. These interventions may, of course, impact treatment (many doctors want nothing do with lawyers and lawsuits) and they may also deeply affect privacy as defense lawyers may start asking questions about ailments wholly unrelated to the issues of a lawsuit. (Such as STDs, abortions, drug/alcohol issues, psychiatric treatment, etc.) This bill prohibits defense counsel from conducting such ex-parte interviews.

6: Increases trial lawyer contingency fees on medical malpractice claims: Yeah, I know, supporting this looks very self-serving. But you know what? Ever since the Legislature dramatically cut attorney fees in medical malpractice cases in the ’80s, making them some of the lowest in the nation, many injured people can’t find lawyers. Many cases are simply too expensive and too time-consuming to warrant the risk given the crappy fees, effectively giving the medical community immunity for many acts of malpractice. This bill repeals the sliding scale fee for attorneys in medical, malpractice and brings the fees in line with other personal injury and wrongful death actions (one-third of the recovery).

There it is. Six bills. Covering real tort reform.

August 11th, 2017

About Eric Bolling’s $50 Million Defamation Suit – And the Ad Damnum Clause Loophole

Eric Bolling

News junkies know that yet another Fox News anchor has been shit-canned over allegations of sexual harassment, this time it being anchor Eric Bolling. Fox has “suspended” him for allegedly sending lewd texts and photos to colleagues.

But I’m not here to deal in the actual details, but rather, the $50 million suit he has filed against his accusers in New York state court, and the procedural quirk that allows him to make that claim despite New York’s apparent prohibition on doing it.

You see, Bolling’s attorney didn’t file a Summons with a Complaint, but rather, a Summons with Notice. To us New York lawyers, this is a very significant procedural issue. The brief document is here: EricBollingSummonsWithNotice

A Complaint has details in a defamation case, setting forth actual words that were written or uttered that are claimed to be false and injurious. This Summons with Notice crap, does not. It’s substance merely states:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed.

While it is legal to start a suit this way, it is most certainly not the way lawyers practice. He now has just 20 days to file the Complaint or risk dismissal.

But time wasn’t a barrier for any of this — he could have waited to draft a Complaint if it had merit — so why start suit in such a crappy fashion?

My theory:

There will be no real lawsuit to follow. This was rushed out the door to intimidate others from stepping forward and grab press. Put a big whopper of a number in the filing — in this case $50M — and people who may claim to have been harassed may simply say I don’t need this crap.

There isn’t any other reason I can think of. If it is brought to the attention of a judge, s/he is likely to simply strike it. But the damage has already been done.

But wait! What about that mammoth $50M number? Regular readers know that I have railed against those who put ad damnum clauses into their pleadings. New York (thankfully) outlawed this practice for personal injury cases back in 2003 (and defamation constitutes personal injury). It used to apply only to medical malpractice cases, but in 2003 was changed to all personal injury cases. CPLR 3017(c) states:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

New York’s Grand Poobah of Procedure, the late Prof. David Siegel, thought a monetary sanction should be levied. In his authoritative treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 3017.”

But Bolling’s lawyer may have discovered a loophole to grab that press. Because CPLR 3017(c) doesn’t list Summons with Notice as one of the documents that prohibits the ad damnum clause. Here it is again with emphasis added:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And yet, the Summons with Notice (CPLR 305) requires a prayer for relief (“shall contain”) except in medical malpractice cases:

(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

So it appears that when CPLR 3017(c) was amended in 2003 to forbid the placing of a specific demand for relief in a Complaint, the Legislature forgot that CPLR 305 requires it in a Summons with Notice.

We lawyer types have a word for that discrepancy: Loophole. I don’t know if Bolling’s lawyers knew it existed when they drafted this document, but there it is anyway. But when I sat down to write about the odd way this suit started, I certainly didn’t realize it. While I came to critique the way this suit was started that’s what I found instead.

A loophole.

And one that the Legislature should fix in the next legislative session by amending both CPLR 305(b) to add all personal injury suits to the actions that prohibit the demands for relief, and adding Summons with Notice to the list of documents that prohibit it in 3017(c).

July 27th, 2017

From McCain’s Mouth to the Trial Lawyer’s Ear

John McCain, July 25, 2017

When Sen. John McCain made his return to the Senate this week after his brain cancer diagnosis, all ears were on what he was saying about Trump’s attempt to alter/change/abolish Obamacare.

But as I read his comments from the Senate floor something else entirely jumped off the page at me. His comments about political “adversaries.”

And that word adversary is put in quotes for a reason, for one must appreciate that today’s adversary is tomorrow’s ally. If people disagree 75% of the time, for example, it means that they agree 25% of the time and will sometimes want to work together.

He was referring to politicians, but the same holds true for divorcing parents, or in my case, trial lawyers.

His comments, with my bolding for where I think the importance lies:

The Senate, Mr. McCain said, has not “been overburdened by greatness lately; they aren’t producing much for the American people. Both sides have let this happen.”

In self-reproach, he added: “Sometimes I’ve let my passion rule my reason. Sometimes I made it harder to find common ground because of something harsh I said to a colleague.”

Lawyers, of course, are duty-bound to zealously advocate for clients. Sometimes, however, that zealousness and passion spills over to the personal when two folks argue and jockey over an issue. But reason dictates that no matter how hard you fight over an issue, that you can’t let the passion get in the way of the big picture.

For one day you might need to talk candidly to that legal adversary, as when it comes time to settle a case. How well have you served your client if, due to passion, you are unable to have that candid conversation with your adversary to settle because you got caught up with the passion over the smaller one?

While lawyers involved in litigation talk about winning and losing, what we are really doing is engaging in risk management. At some point, depending on the facts, it may be in the client’s interest to take 80 cents on the dollar. Or 50. Or even 25. So too for the lawyer on the other side, recognizing that an all-or-none bet is not necessarily the risk that the client can afford to take.

Passion, as McCain notes, sometimes spills itself all over reason. And that’s well worth trying to remember in the heat of a fight.

July 25th, 2017

Different Kinds of Lawyers (Protecting Free Speech)

Today is a tale of two lawyers. Actually, two different kinds of lawyers.

The first is the ambulance chaser. And no, I don’t mean the kind that literally go running to hospitals where they weren’t called. That may happen, but it’s rare.

No, I’m talking about the rarefied air of Supreme Court litigation — where a select few lawyers race to those whose cases have been accepted to scream that the lawyers that got you this far can’t do this high faultin’ stuff, hire me instead. To get the glory.

The other kind of lawyer is the one that does the grunt work, toiling in a press-free arena.

Those two types are now sharply juxtaposed with a post from intellectual property and free speech lawyer Ron Coleman — see what I did with that link? –in his story on That Great Free First Amendment Thing.

Coleman has been handling a case for years for a rock group called The Slants, by their leader Simon Tam, who were denied a trademark for their band’s name because it was disparaging to Asians. Such was the law, as trademarks would not be issued for “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Coleman took In re Tam and argued that, if the group wanted to reclaim a weaponized racial slur — which the gay community has done with a variety of insults such as dykes and queers — why should the U.S. government stop them from doing so? The government should not be in the business of stopping disparagement.

This was a First Amendment issue and Coleman picked up the ball and ran with it all the way to the Supreme Court. It’s the same issue that the Washington Redskins faced when their trademark was stripped from them for being disparaging.

And a funny thing happened when the court granted cert. The “Chasers” came out of the woodwork to try to snatch his years of toil (done for free) so that they could claim the glory. According to Coleman, “The vultures were calling. Circling. They smelled fresh kill.”:

Experienced federal appellate lawyers knew very clearly what was happening before their eyes: In re Tam was going to be a winner. And now that, after six years of wretched anonymous work by others from the trademark registration application through the TTAB appeal, the panel appeal in the CAFC and the en banc appeal, the vultures wanted in on it…

I got calls. Simon Tam got calls. And they all went more or less like this:

You guys were simply delightful in the Federal Circuit, coming out of New Jersey and all that. Charming country lawyers. But now it’s you against the Solicitor General, the Justice Department. And, really, the justices themselves. They don’t like strangers, and they don’t like amateurs poking around at the First Amendment. So you need us.

The Redskins lawyers told us it was time to hand over our case to them, because we couldn’t win it the way they could win it. We could keep our names on the brief if we wanted, but it was time to get out of the way. This could only be handled by Supreme Court Elite — the SCOTUS regulars, former SCOTUS clerks who knew how to play the justices the way no Jersey bumpkins ever could.

Coleman was not amused. He told them to pound sand. And with the case now over with a resounding 8-0 victory last month, he gets to write about the vultures. And he does.

Which brings us to the second kind of lawyer, the one who toils in virtual anonymity. For Coleman was also helping fellow blogger Patrick Frey, an assistant district attorney out in California who writes the conservative legal blog Patterico’s Pontifications. He’s played along as part of a couple of my April Fool’s gags in years gone by.

Patterico blogged about the Speedway Bomber, Brett Kimberlin, charitably described by Eugene Volokh as a “colorful past convict and current assiduous litigant who has been suing various conservative bloggers.” And Kimberlin sued him in Maryland.

The problem was that Coleman is a New York and Jersey guy, and he needed a Maryland attorney to assist. He tried hard to find a good-sized law firm, that could afford to do the pro bono work, to help. Crickets. Ken White at Popehat sent up the Popehat Signal to look for help. More crickets from the locals.

So Maryland employment lawyer Bruce Godfrey — see what I did there again? — stepped into the breach. He was not part of the big firm that was really needed because a lot of time would be spent, but big enough. And Godfrey came through in spades.

Because the case was just dismissed. Patterico writes:

I can’t say enough about these guys. They stood by me at all times, working for no pay — all for the righteous cause of defending free speech. Ron Coleman juggled this case with his internationally known pro bono case for the Slants, which resulted in total victory and a landmark opinion for free speech. In addition to his fine legal work with Ron on the briefs, Bruce Godfrey dealt with a prickly and difficult client (that’s me!) on discovery issues, and spent countless hours cataloguing, redacting, and organizing the voluminous discovery — not to mention dealing with the court and Kimberlin, and navigating me and Ron through the Maryland legal world.

I’m not going to sit here and claim that I agree politically with Coleman or Patterico or Godfrey on any particular political issue. Because that is not the point. The First Amendment doesn’t belong to the right or the left, it belongs to all of us. When the rights of one are curtailed then the rights of all of us are.

One only need look at places like Turkey, Russia, the Phillipines that have previously experienced some levels of freedom and democracy to see how easily such rights can be lost.

So a tip of my hat today to the three of them, for standing their ground and persevering. We are all better off for the time and effort they have spent.
———-
Updated with other takes:

Patterico Wins, and You Need to Know (Greenfield @ Simple Justice)

Brett Kimberlin lawsuit against Patrick Frey (Patterico) thrown out of court (Jacobson @ Legal Insurrection)

Patterico Vindicated: Judge Rules Against Brett Kimberlin’s Failed Federal Suit (McCain @ The Other McCain)