February 3rd, 2017

Trump’s Hair and his Doctor (And a HIPAA violation?)

Surfing through Trump’s hair.

The New York Times ran a story yesterday about Donald Trump’s long time doctor, Harold Bornstein, and his disclosure that his ridiculous hair is maintained with the male pattern baldness drug Propecia.

President Trump takes medication for three ailments, including a prostate-related drug to promote hair growth, Mr. Trump’s longtime physician, Dr. Harold N. Bornstein, said in a series of recent interviews.

Hair! Trump! What fun! Right? And as a bonus, the drug is also linked to occasional, detrimental, sexual side effects. Trump! And Sex! It sells!

But just one little bitty problem. It appears from the article that the good Dr. Bernstein might not have had permission to disclose. Oops.

Bornstein, it seems, has been Trump’s doctor since 1980, giving him a wealth of very personal, and very private, information. But no contact lately.

Well, if doctor and patient didn’t have contact, how could he get permission to divulge information that is very clearly protected by the patient-doctor privilege? From the article:

[Bornstein] said that he had had no contact with Mr. Trump since he became president, and that no one from Mr. Trump’s White House staff had asked for copies of the medical records that he has kept for the last 36 years, or called to discuss them.

And then there is this, supporting the idea that Bornstein didn’t have permission to open his yapper to the press:

At times in the interviews, Dr. Bornstein was moody, ranging from saying that Mr. Trump’s health “is none of your business” to later volunteering facts.

Well, that’s not good, is it?

Privacy is the bedrock of the relationship, for if patients can’t have confidence in the confidentiality of what is said, they may omit things that turn out to be detrimental to their health. And that is bad. Bad. Bad. Bad.

From the Merck Manual, in an overview on the subject:

All people are entitled to confidentiality unless they give permission for disclosure or they clearly can no longer express a preference (for example, if they are severely confused or comatose). A federal law called the Health Insurance Portability and Accountability Act (HIPAA―Health Information Privacy) applies to most health care practitioners and its regulation, known as the Privacy Rule, sets detailed rules regarding privacy, access, and disclosure of information.

Ahh, the Privacy Rule. And here is all you want to know about it.

And a doctor could face criminal penalties, if the government was so inclined, and could likely face action against his license.

If Trump is pissed — and he’s always pissed at something — he could theoretically make a complaint to Health and Human Services and ask for enforcement. And HHS could, in turn, refer the matter to the Department of Justice.

Would HHS and DOJ say no to the boss?

January 23rd, 2017

Sean Spicer and the Ill-Fitting Suit (Updated)

Did Sean Spicer deliberately wear an ill-fitting suit?

Lawyers need to know a smidgen about fashion if we don’t want to look like fools before clients, courts and juries, which is why I’m bringing my limited sartorial skills to today’s post.

Many people across the country looked at Sean Spicer in his debut appearance as presidential spokesman, and the lies he was forced to spew about the size of the crowds for the inaugural Friday and the massive protests on Saturday, and then proceeded to…mock his ill-fitting suit.

He can see a picture of the slob. Many folks on the interwebs had fun with it. There is already a Go Fund Me page to Buy Sean Spicer A Suit That Fits that has been shared, currently, more than 6,000 times on Facebook. A couple of SeanSpicerSuit Twitter accounts have also appeared.

Daniel Politi at Slate snarked, for example:

“Some members of the media were engaged in deliberately false reporting,” Spicer said as he was gradually swallowed by his suit.

And my buddy Scott Greenfield, a lawyer fashionista, writes at Simple Justice:

According to respectable journalists, President Trump’s press secretary, Sean Spicer, beclowned himself already. Not by the ill-fitting suit he wore, but by declaring that the inauguration drew the “”largest audience to ever witness an inauguration, period.”

But perhaps we should rethink this?

Would somebody, in one of the most high-profile jobs on the planet — appearing for the first time before the international media in his new role in the White House — deliberately dress down?

And then I thought of some mocking Trump for taking the oath of office without the decency of buttoning his jacket. Except that he is hardly ever seen with a buttoned jacket (see for example, this photo of Republican nominees).

Are these slips of sartorial splendor connected?

This brought my mind back to an incident many years ago when I was trying a case in the Bronx. Opposing counsel came in each day with the points of his shirt collar haphazardly upturned. I finally pointed this out to him. Oh, he said, he knows. It was purposeful.

He didn’t want to look like The Insurance Company Lawyer in front of a Bronx jury, few of whom wear suits for anything other than a funeral.

Many in the media have commented on the fashion style of Michelle Obama, as well as that of Hillary Clinton and her pants suits, so I’m going to take first crack (I think) at the fashion style of the new administration (because how you present yourself, be it in law or politics, matters).

Here’s my Trump Administration fashion theory: You don’t wear Brooks Brothers to storm the castle. The mob behind the screaming populist with the billowing jowls, carrying pitchforks and torches, do not wear fine suits. The mob wants to destroy. The mob laughs at those who mock an ill-fitting suit.

To test my theory, I looked up images of Sean Spicer. And, unsurprisingly, I found photo after photo of him showing fine fashion sense in well-tailored* clothes. Ask yourself if this looks like a man who would inadvertently wear an overly large slob suit on his first day as presidential press secretary:

I think the ill-fitting suit that looked like it came from the wrong rack of a second-hand store was no accident. There’s an image-maker someplace advising on how to deliberately downgrade appearances, and I think we’ll see much more of it.

As for me, when I speak in front of a jury, I would never wear french cuffs. Or a bow tie. Or braces. Or a pocket square. Or funky socks. I try to be boring. But that’s just me, as I dress for the point I am trying to make — my point being that I don’t want my clothes to distract my jurors.

And when my clients appear before a jury, I don’t tell them to wear a suit if the only suit they own is the one they wear for special occasions, meaning funerals. I advise them to wear their church clothes, so they are comfortable and that neck tie doesn’t cause them to squirm.

I don’t think the Spicer/Trump clothing issues are an accident as they appeal to the mob, and we’ll see in the coming months whether my theory holds.

For now, though, be wary of quickly jumping all over the suit(s) that Spicer elects to wear. It’s quite possible that it’s all a very deliberate appeal to his base. And that we are being trolled.

Addendum, 1/23/17:

Fact: Sean Spicer’s Suit is Bad (GQ Magazine)

Sean Spicer Must Be Taking His Suit Advice from Donald Trump (Racked)

*Addendum, 1/25/17: OK, my theory might be for the birds. As pointed out to me elsewhere, one of the “well-tailored” suits (the one with the lavender tie) isn’t exactly well-tailored. And, stories have come out that Trump was pissed at the way Spicer was dressed. So, while I tried to give him the benefit of the doubt by postulating it was part of a grander theory that you don’t storm the castle wearing Brooks Brothers, it seems I blew this one. Some more:

Trump is obsessed with what his staff wears. Don’t let their costumes distract you. (WashPo – Robin Givhan)

Trump reportedly wants to fire Sean Spicer because he doesn’t like the way he dresses (Death and Taxes)

Did Sean Spicer Get a Trump-Approved Makeover? (Hollywood Reporter)

January 18th, 2017

Zervos v. Trump (An Apprentice Sues Trump for Defamation — A Look at the Issues)

Summer Zervos

Donald Trump, who’s becoming a regular on these pages, was sued yesterday for defamation by a former Apprentice contestant, and it is clear he will have his hands full with this one. This post will look at a dozen issues in the Complaint, both as to how plaintiff’s counsel screwed some things up with lousy lawyering, and what may give Trump trouble.

First: Suit was brought by Summer Zervos. She claimed (along with many other women) during the election campaign that Trump sexually assaulted her back in 2007, and he called her a liar for having said so. So, the statute of limitations having expired for assault, she sued for defamation on his recent denials.

The same tactic was used against Bill Cosby, using the denial of old assault claims as a means to bring a defamation action. Cosby’s claim of “self-defense” in denying the accusations failed (in federal court in Massachusetts).

Second: She is represented by “celebrity attorney” Gloria Allred, who last appeared on my blog in 2009, and not in a good way. Calling her a publicity hound would be an insult to hounds everywhere. When publicity drives a suit, instead of good lawyering, opportunities are lost (for the client).

Third: Today’s Exhibit A is the complaint Allred apparently drafted with her local counsel, Mariann Meier Wang, and I say apparently because if you read the first few pages, it doesn’t look anything like a legal pleading and I can’t imagine any competent lawyer drafting anything like this. (Zervos v. Trump)

It is a scream for publicity. A howl for attention. Perhaps, in some bizarre way, she is perfect for Trump — two people who will stop at nothing until they get the cameras turned on them. It has been used for an improper purpose, to deliberately put inflammatory material before the court for the purposes of garnering press.

For the non-lawyers checking in, a complaint is supposed to have “plain and concise statements” in consecutive paragraphs. They are supposed to have, as much as practicable, a single allegation in each paragraph.

Lawyers are kinda orderly like that. Because it makes it easy to admit or deny allegations and the court can then figure out what actual facts or issues are in dispute. And that can be really, really important because…

Fourth: The complaint, as it exists now, is a lost opportunity. A smart lawyer would put in those simple statements, then see if Trump denies them, and then cross-examine him on those denials. If done right, this can be very effective. Because if a defendant denies something he should admit, he has now done it with his counsel by his side. Not only is the defendant tarnished, but so is the lawyer. Both the witness and his lawyer would look like a fool in front of a jury if Trump denies a fact that is easily provable.

But as written now, it is impossible for Trump to admit or deny almost every single paragraph due to the drafting. And that is a big bonus for Trump.

Fifth: The plaintiff failed to verify the complaint. Oops. This is real basic lawyering, and it’s a simple couple paragraphs at the end of the complaint where the signer states that the above is true. It is not required for the complaint, but if the complaint is verified by either the plaintiff or the lawyer, then the answer must be verified too. And since Trump lives in Manhattan, where the suit was brought, he could be forced to personally sign that answer, with its admissions and denials.

An interesting side note on this is that the lawyer can verify the answer if lawyer and client are in different counties. But it seems doubtful that Trump will change his residency (based on current comments) and odds are his lawyer will be in Manhattan. So if the plaintiff had been smart enough to verify, and had used simple statements, Trump could have been forced to sign on the dotted line. Now he doesn’t.

This was a blown opportunity.

Sixth: While those golden opportunities are lost, there is other material in there that will be fought over tooth and nail in the early going that will give Trump a headache. Such as proving the falsity of comments related to other women. Like this Trump tweet:

“Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”

This can be a real problem for Trump, as he potentially brought other women into the suit as witnesses with his over-the-top tweets. This is not a place he wants to be, for while he may be able to attack this particular plaintiff as a fabricator (‘Look, she kept coming back to me, over and over again!’) that is more difficult with more witnesses.

Seventh: In New York, parts of pleadings can be struck for unnecessarily putting “scandalous or prejudicial matter” in them (CPLR 3024). While it is highly unlikely that a court would kill the whole suit, of course, given that we have liberal pleading requirements that focuses on putting the defendant on notice of the facts, this could be an early issue. It wouldn’t be a winning argument, but would be one used to stall and delay the suit with motion practice.

Eighth: Another early defense argument may be that the conduct of putting immaterial comments and opinions in the complaint was done for an inherently improper reason, and that could theoretically be sanctionable under our court rules. (While it would be a rare court that grants sanctions in New York, I expect a Trump lawyer to go on the offense. More motion practice, more delays.)

The response would no doubt be that it is impossible to harm Trump with the allegations, even if some of the material is irrelevant or that the complaint suffers from prolixity. In other words, no harm, no foul. While it’s a crappy complaint from a lawyer’s perspective, this would be the better of the two arguments.

Ninth: But the reason to go after the manner of filing the complaint is that this doesn’t appear to be a case likely to be dismissed outright by the court, but rather, one that will go through discovery. There appear to be sufficient allegations in there that x happened and then Trump lied about it, thereby defaming the plaintiff. And that means, ultimately, the deposition of Donald Trump on his conduct and comments. And because the complaint references other women as well, the discovery would be quite wide-ranging.

If Trump can somehow force the complaint to be modified, he could conceivably try to limit discovery when it comes to his conduct toward women other than the plaintiff.

Tenth: The plaintiff lives in California and the defendant in New York. Federal court was, therefore, an option. In favor of bringing the action in federal court, instead of state court which counsel chose, is that federal court is far less likely to put up with nonsense and you are far more likely to get far-reaching discovery. While it depends on the particular judge you draw, state judges tend to be more restrictive here.

In addition, federal actions tend to move much faster. So if the plaintiff actually had a political motive — such as getting a deposition of Trump done before the 2018 mid-term elections — federal court would have been the way to go.

Eleventh: On the other hand, federal court has a one-day limit on depositions. New York state court does not. That means Trump can’t filibuster his way through the day with word salad answers and hope that it’s done.

Twelfth: I said months ago that Donald Trump was a one-man-bar-exam. Everything he does ends litigiously. It doesn’t appear that this will stop anytime soon.

November 27th, 2016

Is Trump Trying to Lose After Winning?

The classic face palm

On Twitter today, Donald Trump appeared trying to snatch defeat from the jaws of victory. He actually claimed, for no apparent reason, that “millions” of illegal votes had been cast. This comes as Jill Stein is asking for votes to be recounted in Wisconsin, and potentially Michigan and Pennsylvania, recounts that are unlikely to change the election unless some one, or some government, actually hacked into the states computers to alter the vote counts. Theoretically possible, but not very likely.

Two thoughts on this idea of seemingly trying to lose after you have won, that come from the trenches of the law but are widely applicable.

First, back in 2009, a defendant won a criminal trial, and then the defense lawyer, perhaps out of habit, asked the the jury be polled on their verdict. The blunder was widely noted in the blogosphere.

There is no reason on earth for such a request, because once the defendant has won a criminal trial, it’s all over. The fat lady has sung, you grab your coat, make sure the jury is discharged, and get the hell out of the courthouse as soon as possible lest someone find a technical problem with the jury’s verdict. You certainly don’t ask for someone to look for a problem if you have won.

As you may expect, and the reason that story made news, is that when polled a juror said it wasn’t her verdict, the jury went back into the jury room and an adverse verdict then appeared.

Second, as every lawyer knows, when you have won an argument in front of a judge, you just shut up and sit down. Period. You don’t give the judge a reason to revisit a decision any more than you give a jury a reason. Maryland trial lawyer Bruce Godfrey quickly noted this on Twitter:

He seems so desperate to always be in the news, for anything at all, that he is willing to shoot himself in the foot to do it.

Remember, Trump is the guy that will “negotiate” with the Russians and Chinese, the Syrians and Iranians, the Saudis and Palestinians. He will get the nuclear codes.

What could possibly go wrong as he continues to troll the world so that his name stays in the headlines?

November 18th, 2016

If Trump Tries to Register Muslims…

Jonathan Greenblatt, CEO of the Anti-Defamation League

If you came here today to read about personal injury law, fuggedaboutit.

The question today is, if Trump tries to register Muslims as he has previously promised to do, what will you do?

And one answer comes from Jonathan Greenblatt, the head of the Anti-Defamation League, who said, “As Jews we know what it means to be forced to register.”

As I sit here, I can’t believe I’m actually typing this stuff. But, in fact, one Trump sycophant, Carl Higbie, has cited one of the most reprehensible episodes of our last 100 years in support of the idea that this is a viable option: That being the internment of Japanese Americans during WWII pursuant to an executive order, and the subsequent Supreme Court holding in Korematsu v. United States that this was legal.

The decision is widely derided as one of the worst Supreme Court decisions ever. And while few could imagine it ever being upheld if the issue came before the high court again, you never know what happens when a charismatic person whips up hysteria. The fact that it is being discussed is mind-blowing in itself.

Greenbelt went on to write,

“I pledge to you that because I am committed to the fight against anti-Semitism that if one day Muslim-Americans are forced to register their identities, that is the day this proud Jew will register as Muslim. Making powerful enemies is the price one must pay, at times, for speaking truth to power.”

While no one knows right now what Trump will actually do — there is no shortage of “ideas” he spouted on the campaign trail that are devoid of substantive discussion — this is one that actually affects the very essence of our republic (and is one hell of a recruitment poster for Islamic militants).

With this as a prelude, we turn to the issue of whether we follow Greenblatt’s example if Trump actually carries through on his madness. Two arguments in favor. First, there is the poem of Pastor Martin Niemöller, who wrote “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.” You know the rest.

The second comes from Yad Vashem, the Holocaust museum in Israel. I remember being struck by something as I visited as a teen — the very first thing visitors saw was a row of trees outside the museum, called the Righteous among the Nations. Each tree was dedicated to and honored non-Jews who had risked their lives to save Jews during WWII. This was the thing, above all else, that the designers of the museum wanted people to see first.

I am not sitting here typing that Trump = Hitler. But there is no doubt that the alt-right now feels empowered, the KKK and American Nazi party are celebrating, and that there are likely to be substantial, additional instances of bigotry during the course of the coming administration.

As NYT columnist Paul Krugman wrote on Twitter:

So, Trump has selected a white supremacist as strategist, a racist as AG, and a crazy Islamophobe for Nat Sec. But we can work with him!

I am not so wise as to be able to predict the future, for I most surely did not predict that we would be here now as a nation.

It matters not one whit whether the attacks are against Muslims, African-Americans, Jews or any other group.

The lessons of Pastor Niemöller, and the lessons of those honored as the Righteous Among the Nations at Yad Vashem, should speak to all of us.