November 2nd, 2024

On NOT Running the NYC Marathon

In a letter to the New York Times editor 20 years ago, I referred to the NYC Marathon as a “magnificent piece of urban theatre.” With a one to two million spectators, random New Yorker’s (including cops and firefighters) cheering for middle-of-the-packers, handmade signs in a thousand comical iterations, it a wonder to both to behold and participate in.

Some call it a 26.2 mile block party; I prefer to think of it as a very long stage. I have pre-planned beer stops, airplane around the turns, slap the outstretched hands of little kids and adults alike, and do my very best to whoop and holler and engage with the crowd, as I have usually determined by mile five that I probably won’t win. Because without the people it would be just another footrace.

On Marathon Sunday, New York City — where people don’t generally chat up strangers — becomes the biggest small town in the world. Everyone talks to everyone, and everywhere, if you are within spitting distance of the course.

Sometimes, especially as I age, I suffer minor injuries in training that curtails me. So I end up doing the event as a fun run instead of racing it. Hence the beers.

I’ve blogged about this before, including a Blawg Review (as well as reflections about running Boston). It is an extraordinary experience, and I’ve been lucky enough to do it 23 times.

But this year I’m out. I had my best training in years — with hundreds of miles running roads and trails, sometimes at night — and was hoping to actually race this year for a good time (on the clock, instead of simply hamming it up).

Instead I’ll be spectating. Just one week before the race I pulled a calf muscle while scrambling up a steep pitch on a hike. Then limped for a couple hours to get down the easy way. Then pulled the other calf muscle a few days later while limping down the stairs.

But if you think I’m tapping this keyboard to whine and complain about my misfortune you are mistaken.

Life is a series of experiences. Family, travel, jobs and if we are lucky, recreational. It’s the reason I was sworn in at the United States Supreme Court. It’s the reason I keep coming back to run New York.

Hopefully the good experiences we have in life will outweigh the bad when our time has come.

In my job over the last 38 years I’ve represented many, many people with lousy experiences. It’s why they needed a lawyer. It’s why I run races in a turkey suit come Thanksgiving time. I let my feathers fly to appreciate my luckiness.

In other places there are, of course, far worse experiences than those represented by the records in my file cabinets, often by many orders of magnitude: Ukraine invaded by Russia, civil wars in Sudan, Syria, Libya and elsewhere, crisis in Venezuela, and 100 years of Islamic extremists trying exterminate Jews and Israel. Horror stories abound of killing, starvation and displacement.

And me and my aging legs? I can’t whine. I’ve been as lucky as a guy can get. I’ve been able to run the streets of NYC for no other reason than the thrill of running the streets of NYC. Again and again and again.

To those that are running the race, I wish you all the best of luck. And hope that you are able to appreciate how lucky you are simply to have this opportunity. And to cherish the experience.

December 11th, 2018

Defending Al Sharpton’s Daughter

On the one hand, I hate to refer to Al Sharpton’s daughter, Dominique Sharpton, as “Sharpton’s Daughter” as she has an identity all her own. We all do.

On the other hand, nobody would be writing about her $95K settlement for her trip and fall case if her name was Jane Jones. The headlines below occurred because she is not only the daughter of someone famous, but a famous person many love to pillory. You’ll notice that it is Papa Sharpton whose name appears in the headlines.

This trip and fall occurred on New York City streets, and it was the City that was the defendant.

I saw the headline in the Post first, then looked around to see what others were writing. Here are a few:

Al Sharpton’s daughter gets $95K settlement for sprained ankle (NY Post)

Al Sharpton’s Daughter Bags $95,000 Settlement for Sprained Ankle (Breitbart)

Al Sharpton’s Daughter Sprains Ankle ‘Real Bad’ On NYC Street, Scores $95,000 In Settlement (Sarah Palin)

Then a few tweets about that sprained ankle. You can find plenty, but this is a sample from “Sheriff” David Clarke:

Now I smelled something about the headlines. And that’s because I’ve litigated plenty against the City of New York and know that it doesn’t give up the taxpayer coin easily. And if the City could make a point by knocking down a high-ish profile case, it would.

So I logged into the court system and pulled up a document to see about that “sprained ankle.” It took all of two minutes to find what I needed. Here’s a bill of particulars that outlines the injuries.

DominiqueSharpton-Bill of Particulars Download

It turns out that the “sprained ankle” was actually ankle surgery (along with a number of torn tendons and ligaments). Now I know that confusing a sprain with surgery isn’t the kind of mistake that I would make, or any of my readers would make, or any family, friend, or random stranger would make.

To make that “mistake” one needs an agenda to distort the news. The Post story had a single line about the surgery buried in the story, but oddly omitted that from the headline.

Neither Breitbart nor Palin — who picked up the story from the local source that being the NY Post — could be bothered with mentioning the surgery. A 95K settlement over a sprained ankle is far more likely to generate outrage and clicks than a story where ankle surgery was needed. Surgery, you might rightly guess, didn’t fit their agenda.

This was not a one-off error for the NY Post, by the way. I covered this case back in 2015 when the Post ran a headline about Kid Sharpton missing a court conference for this matter — a conference that no client ever, ever goes to. It’s a scheduling conference that the lawyers handle. Yet there was the yellow journalism headline, trying to make something out of, quite literally, nothing.

And both stories were written by their regular courthouse reporter Julia Marsh, who certainly knows better after handling the beat for so many years. It’s not like she doesn’t know how to pull documents off the easy-to-use New York State electronic filing system.

This was, near as I can tell, a run-of-the-mill case of the City of New York neglecting its streets and someone inevitably getting hurt while crossing one. When you’re looking out for cars, pedestrians, dogs, bikes, scooters and other distractions, both dynamic and static, it’s easy to miss a pothole. The nature of the distractions may well affect the way a jury apportions liability between plaintiff and defendant.

This 90-second video, for instance, helps to show how a very small, but unexpected, defect will cause huge numbers of people to trip.

To settle this case, as with any other, the City would have done a simple analysis trying to figure out the “value” of the injuries, factored in the extent of their defect and adjusted downward for the plaintiff sharing part of the blame. They would also factor in how a plaintiff appeared — was she a nun or a convicted criminal? And they might, as they no doubt did here, adjust further downward if the plaintiff said dumb things on social media.

The only thing noteworthy to the suit was that some tabloids could figure out a way to create outrage by distorting what happened.

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.

August 30th, 2011

City of New York Once Again Rebuked by Appellate Court; City Answers Stricken

The City of New York has once again been shot down by an appellate court for failing to provide discovery in personal injury actions where it is a defendant. In two separate actions last week the Appellate Division First Department reversed lower court rulings that had failed to strike the Answers of the City for non-compliance. The appellate court granted automatic wins for the plaintiffs after years of being frustrated by City failure to provide discovery.

Last year I wrote about one of those cases, Elias v. City, a trip and fall case where the city had repeatedly ignored discovery orders.The Appellate Division First Department slammed the City with a $7,500 sanction. The Appellate Division, now further disgusted by the City’s lack of compliance, wrote:

Although we previously directed defendant to comply fully with the outstanding discovery requests and ordered it to pay plaintiff $7,500 as a penalty for the delay in complying (71 AD3d 506 [2010]), defendant has still failed to comply fully. Over a three-year period, the City has repeatedly failed to provide discovery, despite nine court orders and sanctions imposed by this Court. These circumstances “create[ ] an inference of willful and contumacious conduct” (Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]) and warrant the ultimate sanction of striking defendant’s answer.

…

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant’s request to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer (see Byam v City of New York, 68 AD3d 798 [2009]).

See that citation to Byam at the end? That is a Second Department case that the First Department is citing to.

The newfound determination to hold the City accountable for discovery failures, the same as other litigants, has a deep history to it, and reflects a reversal two years ago in the patience that the courts have had with City cases. The City’s Corporation Counsel published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

The appellate judges were not amused, and 18 out of 20 of the First Department judges castigated the City in an unprecedented letter to the New York Law Journal. That letter contained this passage, which should have been seared into the minds and conduct of the City’s laweyrs:

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

The City was being hoisted up on its own petard, claiming that the Courts were infeffcient while itself causing delays. While the First Department judges had oft times given the City a break when it came to its past failures — “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions — that time has now clearly come to an end.

The second case the Court decided last week on the subject was Henderson-Jones v. City of New York, in which 10 police officers entered her home without a warrant, found marijuana, arrested her, subjected her to strip searches, and detained her for 30 hours before she was released without charges. The plaintiff was able to identify two of the officers by remembering their badge numbers. One repeatedly refused to show up for deposition and the City claimed it could not identify the others.

Both the First and Second Departments have clearly weighed in on the City’s repeated failures and delays, and it seems, a new era of accountability is being forced upon it.

(hat tip — New York Law Journal)

January 27th, 2011

Bloomberg: City’s Tort Victims Should Bear Own Costs

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor Mike Bloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”

The mayor, in wide-ranging comments made in front of the lawyers group that he continued with me afterward, said, “Look, let’s be blunt here. Who is in a better position to pay the costs of an injury if a city bus injures people? Our strapped city budget, or the victims? Yes, we know that some of them can’t work, can’t take care of their kids, or even go shopping for food due to their injuries, but we have to be realistic. This is tort reform, and we need more of it here.”

In his remarks, the mayor noted the political realities of the situation: “This city has a lot of businesses in it, and if they don’t make decent profits, it won’t be a good situation. And I know all about profits, having built a pretty handsome business before the voters asked me to take this job.” “Let’s face it,” Bloomberg continued in my interview with him, “personal responsibility is so yesterday.”

OK, maybe my quotes aren’t quite exact, and I didn’t meet with him in the traditional sense so much as I channelled his inner thoughts. But they are not far off from reality. Bloomberg actually did stand before the lawyer’s group yesterday. And he really did argue for various forms of immunity for the city for its negligence.

One topic was medical malpractice and the claim that doctors are moving away from upstate due to a fear of litigation. Well, they are moving away from upstate it is true, but upstate is economically distressed. It’s fairly well known that doctors and other professionals tend to move to nicer areas if they can.

No real surprise there. Good food, theatre, a vibrant city life, and many other benefits for which people have been moving to cities. Factories close and workers move. Those workers are also called patients.

But Bloomberg tries to claim that this migration is actually due to medical malpractice issues. Really. He does. His exact words (Bloomberg-TortReformSpeech):

This fear of litigation drives up the cost of health care, and it can lead to a shortage of doctors in certain specialty fields – as we see Upstate. In Western New York, a recent survey found that 91 percent of emergency departments had to transfer patients to another hospital in 2009 because of lack of coverage in a necessary specialty.

Anyone here think I’m going to let him get away with that?

Let’s turn to an actual study, that was captured in this 2007 article in the New York Times (Few Young Doctors Step in as Upstate Population Ages) a different reason is presented, and it has everything to do with (surprise!) doctors moving to wealthy areas because they want to make more money and have a nice lifestyle:

In New York, the study found 6 percent growth in the number of doctors practicing medicine in the state from 2001 to 2005, for a total of about 77,000 doctors. But the way they are spread throughout the state is wildly uneven.

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region. For instance, during the years the study was conducted, Essex County in the Adirondacks lost 22 percent of its doctors, while there was a 19 percent increase in Nassau County, on Long Island.

And as doctors upstate retire — one-third of the physicians in Binghamton are 55 or older — recruiting replacements is becoming more difficult. “I worry that new physicians may not see certain areas in the state as viable or attractive,” Ms. Moore said.

There is little question why, since statistics show a steady exodus of jobs and a decline in prosperity in upstate New York. In the last three decades, the population drain has contributed to New York’s loss of Congressional seats, to 29 today from 39, and state figures show that the number of 20- to 34-year-olds in the region decreased by 22 percent in the 1990s.

Nice try Mr. Mayor. Perhaps you even found some folks who believed the nonsense you spouted.

He also tried out the concept of neutral medical malpractice panels to pre-screen cases. Thanks, mayor, but we already tried that in the ’80s and it was a miserable failure that led to years-long delays in cases getting resolved. (See: Why Medical Malpractice Panels Fail)

Doctors, it seems, didn’t want to take time out of their day to sit. And there were no witnesses, just records. It was therefore impossible to resolve the “patient said” / “doctor said” disputes as to facts.

He tried out the old “unfair verdicts” routine:

How can we make our tort outcomes more predictable, more equitable, and fairer? Litigation was designed to promote fairness, but today, civil litigation is more like the lottery: a few people get a windfall of cash, but most lose out.

Well, that is why we have judges that can toss out arbitrary and unfair verdicts. I’m way ahead of you on that “windfall” nonsense. See How New York Caps Personal Injury Damages.

And he trotted out the old “run it like a no-fault system” routine:

Certain classes of claims, such as those arising from cerebral palsy or birth defects, are such painful cases. And they often lead to arbitrary and unfair verdicts. Why not instead experiment with alternatives like a no-fault system where payments depend on injury, not fault? This would compensate families evenly and fairly without the expense and delays of litigation, and would remove the powerful disincentive for new doctors to become OB/GYNs.

Who said the no fault system was fair? He’s clearly never heard of sham no-fault exams by allegedly “independent” doctors that last only a few minutes and are designed with one thing only in mind from the insurance company that is paying the benefits; Find a way to cut those benefits off.

He tried out this one also: “The size of judgments, and the fact that they can be recovered even when the plaintiff is at fault, has helped drive a huge increase in tort payments.” He forgot to mention, of course, that if a plaintiff is negligent then the verdict is reduced by the same percentage amount in accordance with CPLR 1411.

But I think this was the real crux of his argument…that because the city pays a lot of money it must therefore be unfair:

Of course, the City should pay in cases where it is primarily at fault, but judgments in those cases would not amount to anywhere near the half billion dollars a year we currently pay.

This isn’t the first time I’ve heard this. In July 2009 I systematically pulled apart a piece in Forbes that came from a fellow at the Manhattan Institute that hit this point. If the city doesn’t compensate the victims of its negligence, of course, then that means someone else is bearing the costs. And I refer not only to the medical costs, or the economic costs from lost wages if the person works, but to the costs of the suffering involved.

By the way, Bloomberg touts Texas as a great example of tort reform, where victims get double-screwed (Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)). But when did it become good public policy to take those that have been injured by the negligence of others and tell them they must fend for themselves? Is that anyone’s idea of personal responsibility? (It’s worth noting that doctor disciplinary proceedings in Texas have more than tripled in the last ten years, a subject I’ve written about before. Is that because bad doctors see Texas as a safe haven?)

C’mon mayor, this is like shooting fish in a barrel. Don’t you have any real arguments to make?

(The WSJ also has an article on the speech, in which I am quoted from an older blog posting: Mayor: Tort Reform Would Cut Costs)