Category Archives: Personal Injury

 

August 7th, 2008

Is SueEasy the Worst Lawyer Idea Ever? (Updated and Bumped to Add WhoCanISue.com)

This post originally appeared April 13, 2008. It has been bumped up due to another moronic entrant into the field of trolling for lawsuits. The new site, at the bottom of this post, is WhoCanISue.com. And it, like SueEasy discussed here, raises substantial ethical and litigation issues:
—————————————————————-

When I first heard about SueEasy, I thought it was an April Fool’s joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort “reformers” to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn’t benefit from any PageRank by my linking to it.)

According to the site, “SueEasy is neither a law firm, nor is it a lawyer referral service.” That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn’t mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn’t want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here’s something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It’s like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client’s case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York’s ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. (“Really? The site did that? Oh, my, I’m shocked, just shocked to find out. I’ll have a talk with my people and maybe we’ll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.”)

So my advice to those seeking an attorney:

  1. Ask around first. Your friends, relatives and neighbors are the best place to start.
  2. Ask another attorney, even if outside the field you need. While you wouldn’t want a medical malpractice attorney to handle your real estate venture, and vice versa, there’s a pretty good chance that the attorney will at least know where to look for the right person.
  3. After you get a few names from the above methods, you can check out their websites to see if they give clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
  4. An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this possibly be so dangerous as to harm your case or career. Any attorney who uses it for serious personal injury cases may well be committing malpractice.

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff’s lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

See also:

———————————–
August 7, 2008 Update: Another idiotically named marketing business has popped up, called WhoCanISue.com. TortsProf goes in search of the mystery owners (and read the comments). Screen shots of the commercials for this business are here.

Any lawyer that participates in these operations is an embarrassment to the profession.

More on this at:

 

July 29th, 2008

Video Shows NYPD Cop Assaulting Cyclist (Updated-NYPD Beats Downed Man)

You have to see it to believe it. One of New York’s Finest, while monitoring a monthly demonstration that favors bikes over cars, simply walks over to a cyclist and clobbers him. If I didn’t see it on video, I wouldn’t believe it. Worse yet, the cop then arrests the bicyclist for attempted assault, disorderly conduct and resisting arrest.

First, the video (with a hat tip to Simple Justice and Concurring Opinions):

Perhaps even more incredible than the flat out assault on the rider is that apologists have started to come out of the woodwork because, you know, for some people cops can never do wrong. Here is the New York Post’s pathetic attempt to defend the indefensible:

It looks like one thing led to another Friday, and the unidentified officer seemingly pushed a Critical Mass rider to the ground as the group snaked through Times Square.

Nobody was hurt.

And, since the rider got a traffic ticket and was cited for resisting arrest, there may be more to the story than what’s on one online video.

Seemingly pushed? That reminds me of Groucho Marx: “Who you gonna believe, me or your own eyes?”

And “Nobody was hurt” is now a justification for assault by the police? The rider, now identified as Christopher Long, could have broken his neck with that fall. Why do I think that if the spouse of the unnamed editorial writer was the victim, s/he might be singing a slightly different tune?

And “there may be more to the story?” Good grief. If there was more to the story — if Long was a trouble-maker that the cops were looking for — you wouldn’t see the other cop in the video just standing there. The two would have cornered and held Long.

The Post goes on to sum up: “It’s hard to root against the cops.” Well the masses are not rooting against the cops. That is a miserable straw man argument. This cop (Patrick Pogan, a 22 year-old rookie) should be terminated. This cop should go on trial for assault. This cop should pay the piper. For our safety.

And if the video isn’t enough to convince the Post, maybe they should look at the flat-out lies Pogan made about the incident in the supporting deposition that he gave about the Long arrest, where he claimed that Long deliberately rode into him (click the image below to enlarge):

Obviously, the video shows Long doing exactly the opposite, trying to steer away from Pogan as Pogan started walking into a path that would intercept Long.

And here’s the really interesting part: The cop did this in full view of a big NYC crowd. And yet still believed he could get away with it. And without video, there is a good chance he would. Because what jurors — unless they happen to be defense lawyers in which case they would get booted from the jury panel — would believe a cop would act that way?

With a little bit of luck, the cop will not only be arrested, but a civil suit will be brought. And perhaps, and I know this is fanciful thinking, other cops will actually start to get rid of bad apples as they tarnish the names of the good ones.

Elsewhere:

And regarding a new police beating video that has surfaced:

Updated: Scott Greenfield has a piece on how this case would have likely wound its way throught the criminal courts if there were no videotape: Follow-Up on the “Big Shove”

 

June 25th, 2008

Taxation of Confidentiality Agreements (Amended)

An issue has arisen in recent years about the taxability of personal injury settlements when a confidentiality agreement is reached. Generally, such settlements are not taxable pursuant to IRS section 104(a)(2). But the issue reared its head due to a settlement involving Dennis Rodman back in Amos v. Commissioner of Internal Revenue when Rodman kicked Amos, a camerman, in the groin during a Chicago Bulls game. (Amos-v-Commissioner.pdf)

Prior to suit they reached a $200,000 settlement. But part of that settlement included a confidentiality clause. So the IRS brought an action claiming that part of the settlement was taxable. And the Tax Court agreed, ruling in 2003 that while the proceeds for the personal injury portion were not taxable, that any part of the money that was in exchange for the confidentiality agreement would be. The court wrote that “if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination.” In the end, the court ruled that Amos was to be taxed on $80,000 of the settlement.

And so that opened up any personal injury settlement that includes a confidentiality clause to potential scrutiny. So what’s a lawyer to do? (Question courtesy of Drug and Device Blog.)

While others have suggested placing a number, perhaps $1, in the agreement on the value of the confidentiality agreement — part of the “express agreement stating what the amount paid pursuant to that agreement was to settle” — I think an issue still lurks. It seems quite possible — and I say this without much in the way of knowledge of tax law — that the IRS would want to go to the merits and look at the actual injuries and compare that to the amount received if they believed a great disparity existed between injuries and recovery. It seems that a $5,000 injury that resulted in a $100,000 settlement, for example, would raise eyebrows regardless of what the legal papers claim.

But the problem really exists if it is simply the defendant that seeks the agreement, as has traditionally been the case. The defendant doesn’t want to be seen as a mark to other potential litigants.

The internet age and issues of privacy and identity theft, however, shift that dynamic. Would a plaintiff receiving a large award really want the information public? Likely not. In fact, at my firm’s web site where I discuss case resolutions I have stripped out the names of my clients for just this reason. Those recoveries are no one’s business but the parties themselves.

And so the solution for an attorney to explore with the settling client — I’m not a tax lawyer and this is not tax advice, disclaimer, disclaimer, yada, yada, yada — is actually somewhat simple: Both sides are seeking that confidentiality agreement. The consideration for the confidentiality agreement is the mutual promise for confidentiality. Plaintiff, simply put, doesn’t wish to alert potential thieves and hustlers that such funds exist. This is a real issue.

(Addendum: The preceding “simple” analysis may well be wrong, as the IRS might still say it has value and tax it.)

Along these same lines, an attorney should be wary of signing any agreement that says the funds are being paid to dispose of a claim was dubious, frivolous, meritless or any such other claptrap. Incredibly, I have seen releases written that way. (“But that’s our standard release, everyone signs them!”) Signing such a document could be seen as an admission that the amount paid was for something other than personal injury, and therefore subject the client to taxation.

(Second Addendum): The safest course of action may be to take back a Hold Harmless agreement from the defendant. That is to say, if they wish to have the confidentiality agreement, then they must also agree to defend and indemnify the plaintiff if the IRS comes calling, and claiming that there was value in the confidentiality agreement.

And yes, I did have fun doing an image search for Dennis Rodman.

See also: More On Taxation of Confidentiality Agreements (Drug and Device)

 

May 29th, 2008

New York State Trial Lawyers Assoc Says Thank You In Full Page Ad

The ad takes up a full back page in today’s New York Law Journal. And it is a thank you from the New York State Trial Lawyers Association to the almost 150 members of the organization that traveled to Albany to lobby the legislature last week to help preserve the civil justice system and increase judicial salaries. NYSTLA, for those that don’t know, is the preeminent trial lawyers group in New York.

So the questions are:

  • If you have an attorney handling a personal injury matter, is the name of your lawyer on the list? Or at least someone from his/her firm?
  • And if not, did s/he attend last year or the year before?
  • Is s/he actively working in some way to preserve the civil justice system?
  • And if they have never done anything in this regard, why not?

Here is the ad: NYSTLA-Ad.pdf

A big thank you to the folks at NYSTLA for their organizational skills in getting us in to meetings with our legislators. It was a job well done.

 

May 15th, 2008

JetBlueLoo Follow-Up: What Really Happened?

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded “ludicrous” to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn’t respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight – excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem – I didn’t really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight – very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA’s would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn’t know what to do.

I can’t say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it’s safe to say that JetBlue’s account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur — and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.

More:

Photo credit: Wikimedia Commons