May 14th, 2019

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

I think I need a “Leaving Accident” sign.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 14th, 2018

Gunfire in the Classroom is No Accident

The story popped up yesterday that a teacher in California “accidentally” fired his gun in a classroom. He was teaching a class in gun safety at the time.

Headline after headline read that way: Accident. Accident. Accident.

No. No. A thousand times no. ‘Twas no accident. It was negligence. There’s a difference, for this was preventable with the exercise of reasonable care.

I covered this ground in 2013 when the NYPD changed its Accident Investigation Squad to the Collision Investigation Squad. According to then Police Commissioner Raymond Kelly, “In the pqast, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.”

An accident it when a deer bolts into the path of a car. A collision occurs when a second car is following too closely and slams into the first. One may not be avoidable, no matter how much due care you use. The other, very much avoidable.

Accidents do not simply “happen.”

And so it is with guns. Accidents don’t really happen.

As Jim Wright points out at Stonekettle, “there are no accidents with guns.”

For example, if a child picks up a gun to play cops and robbers with a sibling and shoots it, it is not an accident. It was negligence by the gun’s owner for leaving a loaded pistol in an unsecured place.

Part of the problem here is that the use of the word “accident” has been ambiguous. Similar to bimonthly meaning either twice a month or every other month. Or the word “sanction” meaning something has been approved (a sanctioned event) or is a punishment.

Accident has been unfortunately used in both matters where there is fault and matters where there is not. But there is a massive difference in meaning, particularly with news events such as this, where a shot is fired in a classroom.

Media headline writers should recognize this problem. They are, after all, in the word smithing business.

It’s lazy to use the word accident when it doesn’t actually convey the true meaning of what happened. It makes negligent conduct appear as if there was nothing that could be done to stop it.

And that is the media being negligent, for with the use of due care, the persistence of such ambiguous conduct can easily be crippled.

December 4th, 2015

Al Sharpton, the NY Post and Yellow Journalism

Julia Marsh’s Twitter biography photo

There are only two possibilities in this story regarding Al Sharpton’s daughter’s slip and fall lawsuit, for which the New York Post used this headline:

Sharpton’s daughter skips first court date in $5M sprained ankle case

First, that the NY Post is simply bashing Al Sharpton, via attacking his daughter Dominique Sharpton, for no reason whatsoever; or

Second, that NY Post writer Julia Marsh is utterly and contemptibly clueless about litigation.

Apparently, she has a trip and fall case against the City that resulted in an ankle injury. I care not one whit about the actual details, since that isn’t the point of this post. Nor is this about Sharpton, his past, or his politics.

The point is that Dominique’s case has a compliance conference yesterday. Curious as to what kind of conference a client could possibly have missed, I looked it up. It turns out that this was a routine conference where the lawyers head to the courthouse to work on discovery issues that may still need to be completed.

Let me be clear about this: Clients never, ever, ever, go to these things. It’s the lawyers working on scheduling. These things are sometimes so routine that there is a cottage industry of per diem lawyers that will handle them for $100 a pop.

Even when they are not routine, and there are actual legal issues to be discussed, the clients still never go. In fact, in NYC, the clients rarely ever even go to jury selection in a civil case. While it might happen some places, I’ve never seen it here.

Yet there was Julia Marsh writing her idiotic lede:

The Rev. Al Sharpton’s daughter was a no-show Wednesday for the first court date in her $5 million sprained ankle case against the city, letting her lawyer stand in for her — but the night before she was putting that ankle to go use, marching in a raucous anti-gun demonstration in Times Square.

Is it possible that Marsh simply didn’t know better? Doubtful, since Marsh covers the courts. I know this firsthand because she contacted me right after Dr. Katz filed his now-dismissed defamation suit against me. Also, her Twitter profile concedes it:

A New York Post reporter covering Manhattan Supreme Court. Send news tips to [email protected]

I don’t think this is what she was taught in journalism school.

There’s a reason I am deeply cynical about what I read both online and in the papers. I covered this a few weeks ago with the sensationalistically written story of the 8-year old boy who sued his aunt. Marsh now provides another fine example.

October 15th, 2015

The Media Hit Job on the Evil Aunt

So we all know about that super, duper evil aunt who sued her 8-year-old nephew when he jumped into her arms and she fell and broke her arm, right?

And it turned out she wasn’t really super, duper evil, or even a little bit evil, and took the kid Halloween costume shopping recently.

It was just a suit against the homeowner’s policy. So how and why did it go viral?

It’s because of the way that Daniel Tepfer of the Connecticut Post, who I think is the author of the initial piece, wrote the original, slanted article (or the way his editor re-wrote it to bait readers).

Sure, the part about the kid being 8 was mildly interesting, and led to the suit being lost, because kids will be kids. An OK local story I guess. Maybe they’d get a few hundred clicks.

The part about suing a relative is a complete non-issue, because, as I explained yesterday, relatives (and close friends) sue each other all the time since they are the ones most likely to be in the home, or in the crashing car, when the injuries take place. But it doesn’t mean they are going after personal assets.

No, the part that sizzled and engaged the Internet Outrage Machine!!!! were the ways the boy was described and the minimizing of the injuries.

We now know, for example, that the woman had two surgeries and may need another on her busted wrist despite it being four years later. So that sounds to me like a nasty fracture. But that is not what Tepfer & Co. presented. No, this was what he presented the woman’s injuries:

“I live in Manhattan in a third-floor walk-up so it has been very difficult,” she said. “And we all know how crowded it is in Manhattan.”

And then there is the damage the injury has done to Connell’s social life.

“I was at a party recently, and it was difficult to hold my hors d’oeuvre plate,” she said.

There was no mention of surgeries (which included internal hardware, according to the complaint), or the difficulties with activities of daily living that would come with a busted wing. Not the part about trying to dress one-handed, doing buttons, tying laces, showering, cooking, cleaning, typing or simply cutting a piece of food. Try it sometime, dear reader, try it. Go a whole morning one-handed.

But as presented by Tepfer, it was about walking up stairs and holding an hors d’oeuvre plate.

Ahh, the hors d’oeuvre plate! That was the thing that so many commenters seemed to pick up on. Not the pain and incapacity with injury and surgery, no sirree. Nope. Because it was left out of the article.

Tepfler then did the same thing in a follow-up piece after the defense verdict. This was his lede:

The case of the aunt who sued her young nephew over a reckless birthday hug, may have hinged on a plate of hors d’oeuvres.

Now when you think about it, having pain while just trying to hold a small plate of food four years later would be significant to anyone. But only in context, and that context was stripped away by Tepfer and the CT Post.

I can think of only three reasons why Tepfer decided to write such a slanted article:

1. He was more interested in mocking the aunt and writing clickbait than doing journalism;

2. He was sloppy and lazy; or

3. He ran out of room to write because the web, as everyone knows, sharply limits your ability to describe a broken wrist.

Take your pick. But since he followed up with a second piece, that led with his diminishing the extent of the injuries, I think #1 is a pretty safe bet.

It trying to evaluate why Tepfer did this to her, you might also consider this little nugget that he wrote about the kid:

In court Friday, the boy, now 12 years old, appeared confused as he sat with his father..

Was the boy actually confused? Was he intrigued? Fascinated by the proceedings? Was there something about the boy, now 12, that led Tepfer to believe he was incapable of understanding that this was a mere claim against an insurance policy? When my kids were 12, they were certainly able of understand these things. They wanted to go to court with me and see what it was like.

Maybe it just made better reading to have a confused boy and an aunt that sued him because she couldn’t hold a plate of hors d’oeuvres? Actual truth — as in the fly-on-the-wall, gods-eye-view truth of what actually happened — seems to be missing. Truthiness is good enough, I suppose, for the Internet. As long as it gets clicks.

So congratulations to Tepfer and the CT Post. You got a shitload of eyeballs at your site for your clickbait. You can now charge more for ads.

And you only had to sacrifice your professionalism and dignity in order to do it.

(An email was sent to Tepfer this morning soliciting comment. He has not yet responded.)

December 29th, 2014

The WSJ Rips Me Off — Now What? (An Open Letter)

To the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here. It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1. It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2. My, oh my, you certainly copied a big chunk of my piece, didn’t you? A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3. Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4. Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important — because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem. We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post. You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you. I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

Well, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. – I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.