April 20th, 2015

Boston Marathon, 2015 Edition (Updated!)

Today 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

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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.

April 15th, 2014

Passover and the Boston Marathon Bombing

Exterior, Kings County Supreme Court (Brooklyn) — Photo credit, me.

Once again, a confluence of two seemingly unrelated events. On the one hand, today is the first day of Passover. On the other, it is the one year anniversary of the Boston Marathon bombing.

Passover celebrates breaking away from tyranny and bondage and the establishment of freedom and the rule of law. While celebrated by Jews, we recognize its universal symbolism. So too do others, as we see the Ten Commandments displayed in courthouses around the country as an example of one of the first descriptions of written law.

The bombing, by contrast, represents both anarchy and totalitarianism. Anarchy from the acts of violence themselves, and (to the extent news stories are accurate that this was an act of militant Islamism) the use of that anarchy to promote theocracies where religion reigns supreme and freedom is restricted.

I have a place in my heart for the Boston Marathon, having been privileged to run it in 2009 and again in 2012. This year it is run with a still-fresh wound, despite the brave faces many victims wear.

But this will not be the first time a marathon is run in the wake of a terror attack.

In 2001 the NYC Marathon was run just two months after the World Trade Center fell, and the fires were still burning. As we crested the Verazzano Bridge at the one mile mark of the race’s dramatic start, you could see the hole in the downtown skyline.

There were some that didn’t show up to run that year, concerned over reports in the week before the race that a bridge was the next suspected target. Rumors and fear ruled the day.

But 25,000 did show up. And the streets were teeming with people that day for a massive public event for which adequate protection could not be assured. And the reason for the lack of protection was simple, if you want to live in a free society, you can’t “protect” 26 miles of roadway through the streets of New York.

We knew that back then. People with guns or backpacks with bombs could emerge from the crowd of 2 million at any time. Runners and spectators alike had bulls eyes on their chests. But it was important to be there and to celebrate New York and to say that we would not live our lives in fear. Cowering was not an option.

And it will be important again next Monday when the 118th Boston Marathon is run. The crowds will be thick and the runners stoked, with each participant — runners, volunteers and spectator alike — tossing caution to the wind to be there. They know that others will be watching them on this great stage.

The police will try to protect parts of the race course, of course, as they do in New York and all major sporting events. But the reality is that the security is a thin veneer. There is always a way in a free society to wage an attack.

Freedom is like that. It is hard to gain, as recent events show in the Middle East and now Ukraine. In biblical times it took us 40 years of wandering in the desert to get there.

It’s easy to become complacent about freedom and to take it for granted when there is no challenge to it.

But when the challenges to freedom come — and terror attacks are certainly such challenges — it feels good to see people willing to put themselves out there to celebrate it, and thereby protect it. Spectators will, quite literally, be manning the barricades.

Cowering is not an option. #BostonStrong

May 29th, 2013

Liability for Boston Marathon Bombings?

So apparently there was a panel discussion held by 500+ lawyer firm Edwards Wildman Palmer on potential liability for the Boston Marathon bombings. You can read an article about it in the National Law Journal here, but this is the lede:

Government agencies probably won’t face much liability from those physically or fiscally harmed by the Boston Marathon bombings, but the race sponsors could prove vulnerable depending on the terms of their insurance policies.

No, they didn’t invite me to participate. But given that I do personal injury work, have run my share of marathons (including two Bostons and 13 New Yorks), and am the founder and race director of a popular 1/2 marathon race, I figure this subject is pretty damn close to my wheelhouse.

So here’s the answer on potential liability: No. As in, it won’t happen, no way, no how, you gotta be kidding me, and I can’t believe there was actually a panel discussion regarding it. Was someone just looking to create topics to burnish their CLE credentials? Did someone need to buff the old resume a bit?

OK, enough snark, this is the reason there won’t be liability: You simply can’t control a 26.2 mile race course in a free society that rambles along public streets in a big city. It’s hard enough just stopping locals from colliding with runners as they push strollers across the course trying to get to breakfast/church/stores; there is no way to control it all.

The cost of trying to implement such control is prohibitive both in cost — all those cops don’t come cheap and someone has to pay for them — and in freedom. We don’t charge people $5,000 to run races and we don’t turn our cities into police states in order to stage events that are designed as communal celebrations of life.

Will there be some changes in big events? Sure. We saw a bunch after the September 11 attack (runners can only bring clear bags into the athletes village at the start and they are subject to search, for example), and we saw some recently in a race Central Park, but this will not stop a determined bomber who will simply find another spot on the route, or a mass transit vehicle, or restaurant or bar, etc. You can’t protect it all, just ask the Israelis.

So BigLaw thinks this is worth a panel discussion. But if calls came to my SmallLaw office from a potential client, they would be unlikely to get get their feet in the door.

(hat tip Overlawyered)

May 2nd, 2013

The “New Normal” After Boston?

In the wake of the Boston Marathon bombings, I wrote down some of my thoughts about the event (Boston Marathon Bombing — And the Lives We Lead), since the race is one of my favorites. One of those thoughts, at the end, was this:

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

This guest post below addresses that very theme; it was an essay written by my running club president Steven Stein for our weekly newsletter, which went out last night. Last weekend he ran a race in Central Park and noticed that things had changed. A lot.

Since Stein grew up outside the U.S. he brings a perspective different than most to the concepts of freedom and security. It is reprinted here with his permission:
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It was a clear, crisp, beautiful spring day. 7:50 a.m. on a Sunday morning and New York City was just beginning to wake and stretch. The drive into Manhattan from New Rochelle was quick and uneventful, and I parked in my usual parking lot on 66^th Street just a short block walk from Central Park.

Everything was familiar and normal. The temperature was in the low 50’s and I decided there was no need to check a bag for the race. This decision was made in part due to the pleasant temperature as well as a warning from New York road Runners that new security measures had been put in place since 4/15/2013, the Boston Marathon.

As I headed up the parking lot ramp onto the street, I saw the normal flurry of activity on the streets. Runners with their race bibs pinned to their shirts were scurrying towards the park. Parents were leisurely pushing strollers towards the park. In fact, everyone I saw on the streets seemed to be gravitating towards the park on this sun filled morning. A perfectly normal spring day in New York City.

I entered the park on Central Park West and 67^th Street, by Tavern on the Green. This is when I first encountered the New Normal. A Security Checkpoint! No entry without being asked to show contents of your bag, including the contents of my Spi Running Belt strapped around my waste.

Mixed emotions. I was happy that there were new security measures in place to keep us all safe. Then I thought; “will I ever be able to walk into the Park without being subjected to a security search? Is this New Normal just applicable to events in the Park, or are these permanent measures?”

A few hundred yards into the park, I saw a young guy looking inside his backpack on a park bench. Did he go through security screening? Should I tell someone I saw a backpack? What did this guy look like? Should I remember his face? What is the new normal? What are the rules? Why is a perfectly normal morning being spoiled by these abnormal thoughts?

As I made my way deeper into the park, in the distance I saw the normal long line of Porta Potties. Good thing they are still at the race. Something’s normal. But as I got closer, I saw that the New Normal included a checkpoint to get into the Porta Potty Area. A big Yellow sign read Security Screening Area.

I looked left, and I saw a NYC Police security crane with a security booth lofted 40 – 50 feet into the air with cameras pointed in every direction. Another Big yellow security signs read. Attention: Due to Enhanced Security Measures, Baggage Will Only Be Accepted In The Provided Clear Bags. Another New Normal. The $25 New Balance red backpack I purchased last summer specifically for race-day will now lie unused in my closet at home.

This was my first organized race since April 15th, and the National Anthem took on a deeper, more meaningful meaning than ever before, as I thought about those who lost their lives and those who were badly injured in Boston. I thought about the land of the free and the home of the brave, and how thankful I was to be living in the greatest nation in the world. The word Free stuck around in my mind for quite some time. Are we becoming prisoners in our own free land?

The race itself was as normal as it ever was. Crowded in the beginning and then it opened up after the first half mile. After the race I walked over to the post-race festival, set up to support lung cancer research and awareness through the Thomas G. Labrecque Foundation. In its 10^thyear, the event was founded in honor of former Chase Manhattan Bank chairman and CEO Thomas G. Labrecque, who died of lung cancer at age 62. Labrecque was the model of good health and a non-smoker all his life.

Another security checkpoint to get into the festival area on Ramsey Field!

As I made my way back to the parking lot on West 66^th street, my thoughts turned back to the New Normal. Is this just a knee-jerk reaction? Are the organizers and security professionals worried about copy cats? Was this a reaction to an isolated incident in Boston, or should we be expecting these events on a more frequent basis? Will security measures be eased any time soon?

Whatever the answer, there is a New Normal. Just like 9/11 changed forever the way we fly, the way we travel, and the way we enter buildings, the Boston Bombings have changed the way we gather and congregate for our organized races. We say we will not be defeated, we will not be terrorized. But they have already changed what is normal, and enforced a new, less free normal existence upon us. What is the right balance between being prudent, protecting a crowd from a repeat incident v.s. being free and not thinking about such threats all the time?

I grew up in a country where we left our front doors open when I was a young kid. As the country became more and more riddled with crime, most houses installed burglar alarms. Soon alarms were supplemented with burglar bars on every window, then a security gate on each exterior door, and in no time high fences and walls surrounded most residential properties, then electrified fences were installed, and each neighborhood had a private security company on call to protect you as you arrived home and walked you to your front door.

Ten years went by and we realized we were living in our own fortresses. Free in our own self-created prisons. With each security feature added, at first it was uncomfortable, but we soon got used to it and it was normal. But when one looked back at the open doors with no gates and no alarms to the prison we had created for ourselves, it was an enormous change.

My point – although I do not have a solution, lets be prudent about what security measures we put in place, let’s be safe, let’s rely on the security professionals and law enforcement to protect us, but let’s be careful not to imprison ourselves in our own free country.

April 19th, 2013

What Does A Smile Mean? (Updated x2)

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis, drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast, Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

Updated June 24, 2013: People Magazine ran a cover photo in its June 11, 2013 edition — three amputees, three brave smiles. If a defendant tries to claim a smile in a photograph means the person isn’t injured, just show them this cover.