March 8th, 2013

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….
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The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness. This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos. Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors. The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts. A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

November 6th, 2012

Court of Appeals Judge Theodore Jones Dies at 68

Judge Theodore Jones. Photo courtesy of New York Court of Appeals.

New York Court of Appeals Judge Theodore Jones died suddenly last night of an apparent heart attack. He was just 68. Judge Jones ascended to New York’s high court by way of the Brooklyn courts, where he was highly regarded for his respect for both the law and lawyers.

That respect is reflected in the following introduction of Judge Jones delivered a few years ago by Evan Goldberg when the New York State Bar Association gave him an award. The remarks are reprinted here with the permission of Goldberg.

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Our speaker this evening is well known to us all. Judge Theodore Jones has long been a friend of the trial bar, after years of being a trial lawyer himself. He started in the Legal Aid Society, then went to private practice and began his career as a judge in the Juvenile Offender part of Kings County. All this helped shape his judicial character, as a jurist who honestly wants to help people.

His rapid elevation, from Supreme Court, to Administrative Judge, to the Court of Appeals is a testament to the high regard his colleagues have for him. And his TV persona, exhibited during the infamous 2005 transit strike let other people in on what was, at that time, Brooklyn’s best kept secret; that when Judge Teddy Jones got onto a case, an equitable resolution was soon to follow.

When the trial bar lost Judge Jones to the Court of Appeals, we all grieved, because we need judges like him for our trials, but we took collective solace in the knowledge that he would be safeguarding the rule of law in a Court deserving of his inspired participation. Whether he’s penning a scholarly opinion or driving for the green on the golf course, he always devotes his impressive skill with full effort, skill and passion.

For me, personally, Judge Jones has always been available to lend his ear and offer advice. His inclusive, fathering approach is innate. He regularly attends the lawyer golf outings and he’s so good. How good is he? He’s so good, we don’t even have to pretend to lose. Um, not that we do that. Judge Jones is also quite the marksman, a skill he undoubtedly honed when he was a Brooklyn Court Street lawyer. His service as a captain in Viet Nam may also have helped.

Just two days ago, our association’s Diversity Committee gave Judge Jones a lifetime achievement award for his longstanding efforts to advance minorities in our profession. Whether he’s working with high school students, seasoned veterans, or anything in between, Judge Jones is everyone’s BFF. I was truly honored on behalf of our association, when Judge Jones agreed to be our speaker. Ladies and gentlemen, I present Associate Judge of the NYS Court of Appeals, the Honorable Theodore T. Jones, Jr.
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Update: From the New York Law Journal, a sampling of opinions from Judge Jones.

November 5th, 2012

Ethical Duties of “Independent” Counsel for a Hospital’s Resident

Mark Bower

While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.

The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…

——————————————By Mark Bower

Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.

Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.

Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.

Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.

Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does not appear or participate in the settlement negotiations.

Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.

This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.

Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.

The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.¹ The “independent” counsel may earn gratitude not shared by the resident doctor.² The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.

This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.³ The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.

As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.⁴

In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail. Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”

The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.

1. The “independent” attorney looks to the insurer, not the client, for future work. “[T]he attorney’s relationship with the insurer is usually ongoing, supported by a financial interest in future assignments, and, like other long-term relationships, sometimes strengthened by real friendship.” See 4 Ronald Mallen & Jeffrey M. Smith, Legal Malpractice, §§ 30:3, at 150 (2010 ed.).

2. Barker, Miller et al, “Insurer Litigation Guidelines: Ethical Issues for Insurer-Selected and Independent Defense Counsel,” ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012.

3. E.g., Restatement (Third) of the Law Governing Lawyers § 16 & cmt. e (perm. vol. 2000) (describing duty); Cinema 5, Ltd. v. Cinerama, Ltd., 528 F.2d 1384, 1386 (2d Cir. 1976) (attorney owes undivided loyalty to every client).; Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 311-12 (1995).

4. See, e.g., American Bar Association’s Model Rules of Professional Conduct, Rules 1.8(f), 5.5(c) (ABA 2011).

May 31st, 2012

Can There Be Liability When Texting to A Driver – Pt. 2 (Point/Counterpoint)

This is the second of two posts on whether liability can attach to a person that knowingly sends texts to a driver, on the theory of contributing to the driver’s distraction. Part one was by Ray Mollica.

Mark Bower now responds:

————————–By Mark Bower

Notwithstanding Mr. Mollica believing that he is right, or even knowing that he is right, I think he is wrong. However, a NJ trial-level court has agreed with him. The case was dismissed, and it seems unlikely that an appellate court will reverse that. Which demonstrates that although I am overruled, I am still right, and they are still wrong.

I note in passing the confounding misfortune that the plaintiff’s attorney goes by the nickname “Skippy.” Cute (or cutesy) names, or nicknames, that may be endearing in person, have a way of diminishing the seriousness of a case. That may have happened here.

The dismissal of this case, and Mr. Mollica’s confidence in his rightness, stem from the simple premise that the person sending a text message to someone driving a vehicle, owes no duty of reasonable care to anyone. That premise is presented as a self-evident axiom. Absent a duty, and the breach of that duty, there can no liability. Basic law school reasoning. But I don’t accept the “no duty” premise to be so self-evident.

That “there is no duty recognized anywhere for a person sending a text,” is likely factually correct (for now), but only because the sending of text messages is a new form of communication, and the law simply hasn’t caught up with the technology yet. The law evolves slowly, deliberately, and gradually, while technology progresses a lightning speed. So there is a lag time between them. The NJ case is an attempt to bridge that gap, and the judge deciding it wasn’t ready to make the leap. Eventually, some other judge will. It’s just a question of when.

The use of cell phones is now near-universal. Many homes have eliminated land lines, and depend on cellular service entirely. That process has taken around 20 years.

It has taken those 20 years for the state legislatures to catch up with the dangers of “distracted driving.” Eight states that have banned the use of handheld cell phones while driving: California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon and Washington. Police officers in seven states can pull over a driver if the driver is using a cell phone, even when no other driving offense has taken place. Cell phone use for bus drivers has been outlawed in Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and Virginia, All states except Alaska, Arizona, Florida, Hawaii, Idaho, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin and Wyoming have banned all cell phone use by teenage drivers. (Teenagers are more likely both to be involved in fatal car crashes and to talk on cell phones while driving.)

Teens are also the most frequent texters. Teenagers and drivers in their twenties and thirties are the most likely to text while driving.Texting is an even greater distraction than talking on a phone while driving. A majority of states have banned all texting while driving. The only states that have not are Alabama, Arizona, Florida, Hawaii, Idaho, Indiana, Maine, Mississippi, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas and West Virginia.

These evolving motor vehicle rules show that the law is gradually catching up to the technology and dangers of distracted driving. The next step is to catch up not just with the distracted driver, but with the person knowingly distracting the driver. (Actual knowledge – what the law calls “scienter” – is the key here.) The NJ case, although unsuccessful, presented a good (but not perfect) fact pattern for a test case. Cell records showed that the driver and his texting girlfriend had exchanged 62 TM’s that day before the accident. There was strong circumstantial evidence, and only a weak non-denial, that the girl knew her boyfriend would be reading and responding to her texts while he was driving.

The seeming fact that the girlfriend knew that her texts would be read and responded-to while the boyfriend was driving, is a crucial fact (and question of fact that would have to be proved at a trial) on which liability turns. Under the circumstances here – and assuming arguendo that the girlfriend actually knew the circumstances of her texting – I see no sensible reason to hold that the law imposes no duty to the public at large, not to distract the driver and thereby increase the likelihood of a distracted-driver accident.

Let’s try a slightly alternative scenario: A passenger riding shotgun is telling the driver a joke. So far, so good. The driver finds the joke funny, and laughs. OK…. The passenger wants to perpetuate the hilarity, and reaches over and starts to tickle the driver. Hmmm…. The driver laughs uncontrollably from the tickling, and an accident results. Would any reasonable person say the passenger did not share fault for this accident? Would a judge say the tickler has no responsibility as a matter of law?

Let’s make it more clear: The passenger and driver get into an argument. The argument turns physical. The enraged passenger punches the driver in the head; the driver loses control and causes an accident. No one would say the passenger has no responsibility.

The NJ judge found that the absence of the texter’s “physical presence” in the car was a defining distinction. To me, that is a distinction that makes no difference. To me, the crucial fact is that the texting girlfriend (supposedly) knew that her texts would distract the driver, but she didn’t care. She was oblivious to the dangers she caused. Why should “physical presence” or absence be the defining quality here, the line that is drawn? Although clear and easily understood, I think this is a meaningless distinction.

We want our law to be certain, so we know how to conduct ourselves in accordance with it. The problem is that there are infinite variations of circumstances and behaviors, so that absolute lines can’t apply well to the variables of every situation. The number of accidents due to drivers texting is likely to increase, and with that, so will the judicial awareness of the problem. Going back to lawschool 101, “the duty to be obeyed is defined by the danger that is perceived.”

That the judge in this one case did not perceive the danger clearly, and therefore did not recognize the duty, does not provide a long-term remedy. I predict the law will eventually catch up to the danger of texting a driver, and texters who knowingly distract drivers with their texting, will do so at their peril. We’re just not there yet… today.

May 31st, 2012

Can There Be Liability When Sending Texts To A Driver? Pt. 1 (Point/Counterpoint)

Today’s post is a two-parter, this representing a debate between two New York attorneys over a recent case in the news: Suit was brought regarding a car accident and the plaintiff sued the person repeatedly texting the driver, claiming that she should be held to be partly responsible for distracting the driver. The texter was not in the car. The novel case was tossed last week by a New Jersey court.

Stealing a page from 60 Minutes’ old Point/Counterpoint, and the delightful send-up of that show on Saturday Night Live (Jane, you ignorant slut…), we hear first from Ray Mollica. Mark Bower responds in the second post:

——————————————-By Ray Mollica

When I heard about “Skippy” Weinstein’s lawsuit which sought to pin liability against a young woman on the basis that she had sent text messages to her boyfriend while he was driving, and thus contributed to the cause of what was a horrific accident, I did a mental version of the facepalm. I immediately felt this was frivolous litigation and no good could come of it.

As the day went on, and discussions and comments with colleagues were had, it turned out that many in our profession did not agree with me, or at the very least, thought we should give a lawyer named “Skippy” the benefit of the doubt, as he was just doing his best for two clients who each lost a leg. Well, being who I am, I respectfully still believe I am right. Check that; I know I am, and my reasoning is fourfold, beginning with the more practical and moving outward to somewhat esoteric.

Initially, my thoughts went back to first year law school, and the elements of a tort: Duty, Breach of Duty, Actual Cause, Proximate Cause, Injury. Well, in this case we know of the actual cause: a car striking two very unfortunate persons on a motorcycle; and the proximate cause: the driver of the automobile being careless enough to distract himself by looking at a text message on a phone. The duty? Well, the only duties involved were those related to the driving of a motor vehicle. However, there was never any duty on the part of the texter. Rather, there is no duty recognized anywhere for a person sending a text, so therefore there can never be a breach of a nonexistent duty.

Next, my thoughts turn to the idea that should this theory be upheld by a malleable jurist, it would set the motor vehicle litigation industry partially on its ear. Without wanting to sound alarmist, it occurred to me that much energy would be devoted both pre and post-suit into finding out who, if anyone had texted or phoned the defendant driver at any time vaguely contemporaneous to the subject accident so that this person [persons?] could then be added as either direct or third-party defendants. Knowing that my adversaries had third-partied people with only the most tenuous theoretical liability [the driver of the car that was rear-ended at the stop light] it was no long stretch it was a near certainty to come to pass.

Furthermore, considering the often [though not always] overreaching blanket demands for cell phone and social media records, now it would appear that cell phone records would have to turned tuned over, including text messages, as a matter of and now under the rubric of “material and essential for the defense.” In this day and age of smartphones, this would include emails – emails that some might not want disclosed for a myriad of reasons, including attorney client privilege.

This moves me to the next point: for many reasons the public hold us in relatively low regard. As the old joke goes: “What do you call 500 lawyers on the bottom of the ocean? A good start.”

As people who sent texts to drivers – whether they had a reasonable belief that the person was driving and therefore liable will only be answered by litigation – involved in an accident are more and more drawn into lawsuits for reasons they will not find clever, or appreciate the attorney’s out-of-box thought processes, the status of our chosen business will become inexorably lower. They will hate us all the more, these jurors of ours, these voters being asked to support tort litigation reform. It would be terrible publicity, and “Skippy” Weinstein’s case already has been.

In the realm of public relations the “Trial Lawyers” are always fighting an uphill battle, and Mr. Weinstein and his 15 minutes just made the slope a few degrees steeper. This is just more ammunition to use against the plaintiff’s bar in a world where reading the comments section to an article relating the horrible story of a child killed by a mechanical rolling gate can make a practicing attorney nauseous.

Rather, it behooves attorneys to occasionally take a step back and look at the big picture. And the big picture is that while Mr. Weinstein was creative in trying to help his own grievously injured clients, it was bad for the rest of us as it made that many more people say “look at these lawyers!” and shake their fists at the sky in disgust.

Finally, as personal communication technology has exploded in the last decade, so has the attempts of the insurance industry to invade the spheres of cell phones and social media. I am of the opinion that we are rapidly creating a private [as opposed to governmental] “Big Brother” with companies seeking the authorization to access, read and download facebook pages, email, cell phone records and now text messages. Whenever a defense attorney asks my client if they have a facebook account, or I get a demand for some similar type of disclosure, I can’t help but ask myself if this is the world we want to live in. So I ask: is this the world we want to live in? Where every text is potentially an actionable deed? Will people in the future have to report their teenagers average daily texting for their homeowner’s policy?

As of this writing I have learned that the Morris County Superior Court Judge David Rand granted summary judgment dismissing the negligent texting claim. But the cat is out of the bag. There will surely be another case with very specific fact, and some other practitioner will do their damnedest to think out of the box, and differentiate his case from Mr. Weinstein’s, and we’ll be here all over again.

(Mark Bower responds here)