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)

 

January 24th, 2011

Ten Commandments of Winning Trial Advocacy

A guest blog today, from Judge Ralph Adam Fine, who has been sitting on Wisconsin’s Court of Appeals since 1988, and was a trial judge for 10 years before that. (And who hails from New York.) He’s the author of  the How to Win Trial Manual, a lecturer on trial techniques, and an author of books on evidence, both federal and Wisconsin.

I asked him to pen this after a conversation I had with a federal court clerk, who told me that he continues to be stunned at the cluelessness of many lawyers that step into the well of the courtroom to try a case (often those from larger firms).

The skills below, of course, are things that Avvo is incapable of quantifiying.

And now, without further ado, a very short course on winning trial techniques…

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The most important thing to remember when you’re trying to persuade a jury or a bench-trial judge is that you must make them see that you really believe in your client’s case—that justice is on your client’s side, whether your client is a person or an entity. Everything else, to paraphrase Rabbi Hillel’s observation about the golden rule, “is commentary”—as are these ten “commandments” and my book, The How-To-Win Trial Manual (Juris 5th rev. ed 2011). As Winston Churchill wrote when he was a young man, to persuade others, you, yourself, must believe, and that belief must shine out!

    1. Your theme must resonate with what the jurors (or judge) knows from life; it must “ring true.

    2. Give the jurors a simple solution and eschew law-school-instilled hyper-complexity. Jurors will apply Occam’s Razor to your case; do it for them with your theme, and you will win!

    3. Do not argue inconsistent theories (I did not stab him but if I did it was self-defense) or present theories that are consistent so that they seem to be inconsistent (Wrong: She was not negligent, but even if she was, the defendant has overstated his injures. Right: She was not negligent, and, moreover, the defendant has overstated his injures.) Lesson: never use the phrase “but even if”!

    4. Do not use your direct-examination witnesses (whether fact or “expert”) to elicit information or opinions. Rather, you must frame and ask your questions so that the jury (or judge) knows the answer before the witness responds. This way, the jury (or judge) will see the “truth” in your argument from the get-go and not have to rely on their assessment of the witness’s credibility—even a liar can say true things.

    5. Do not use a lectern. You do not want to have anything between you and the persons to whom you are speaking, either the jury or judge. Yes, I know, some judges will not let you roam. If that’s the case in your trial, stand next to the lectern, but not behind it.

    6. Do not read. The jury (or judge) must see you as the “truth-giver” in your trial. Truth-givers speak from their heart; they do not read. If you doubt this, consider whether you would read a prepared script when discussing something important with your significant other even though a missed phrase could be lethal. The jury (or judge) must see that you believe in what you’re saying and reading from a script, or relying on notes too much, prevents that.

    7. Do not object in front of the jury either to the admission of evidence or to a question asked by your adversary. Truth-givers do not object because the truth cannot possible hurt them. If you cannot keep out evidence using a motion in limine, then you will have to deal with that evidence and make it work for you as a positive part of your proof! Trust me, this is not hard, as I show in my book and demonstrate in my workshops.

    8. When arguing a matter before the judge (whether in front of the jury or when the jury is not there) never say that you are doing something “for the Record.” First, it is insulting to the judge because you are already telling the judge that you will be appealing. Second, and this is crucial, whenever you say “for the Record” the judge (or the jury if the jury is there) sees that you are just going through the motions and that you really do not believe in what you’re saying. Indeed, during my nine years as a trial judge, a little voice in me said “deny” whenever I heard a lawyer say that he or she was doing something “for the Record.” Other judges tell me they have similar reactions.

    9. Do not rely on the burden of proof in your opening statement. First, the burden of proof in civil cases is essentially meaningless—a zillionth of an ounce on one side of an equally balanced scale is a “preponderance,” but no one would ever make a decision based on that difference. For lay people, something is either true or not true. In criminal cases, although the burden of proof is significant in closing argument, using it in your opening statement is counterproductive; when the jury hears that your client sits there “presumed” to be innocent and is “cloaked” by the constitution, most of them will see this as a concession that your client really did the things the prosecutor says your client did.

    10. Finally (for this list), your “opening statement” must be an opening argument and can be so without being “argumentative.” Thus, you must put your personal credibility behind your client’s cause every time you speak to the jury, and no time is more important than in the beginning because if the jurors see from the get-go that truth and justice is on your side, they will root for you, and, using the tools of denial and rationalization, shunt aside your adversary’s evidence. Thus, instead of the bland and neutral, “the evidence will show” x and y, you must say something like, “I will prove” x and y. That is not “argumentative” because you could have just as easily used the less-persuasive “evidence will show.” Something is “argumentative” when you cannot make that substitution, as in “send them a message” or some such exhortation.

 

January 20th, 2011

An “Elective” Amputation?

The stories are legion of frivolous claims brought by plaintiffs. And one of the things I should be doing more of, is showing that defense lawyers are capable of equally frivolous conduct. Today will be one of those days.

In this labor law case decided today (Cullen v. Makely) by the Appellate Division (Third Department), a scaffold collapses and a laborer’s leg gets crushed and needs to be amputated. The guy sues the owner of the property. The property owner then turns around and brings a third party action against the guy’s employer for indemnification (if we lose, you give us the money back, because you’re the ones that rigged the bum scaffold). The owner (defendant) makes a motion for summary judgment on that issue against the employer (third party defendant).

In order to prevail on this indemnification claim, however, the property owner must prove a “grave injury” under our Worker’s Compensation law, which as it happens, includes “amputation of an arm, leg, hand or foot.” Pretty clear cut, right? Especially since it was supported “plaintiff’s medical records and an affidavit from his treating physician who opined, with a reasonable degree of medical certainty, that the amputation he performed was due to plaintiff’s chronic pain and disability primarily resulting from his work-related traumatic accident, superimposed on a childhood injury.”

Rather than concede defeat, the poor defense lawyer raises this defense: The amputation was elective. Really. S/he did do that. Don’t take my word for it though, listen to the court:

In response, third-party defendants relied upon their attorney’s affidavit alleging that the amputation was elective and was not caused by the work accident, but was necessary because of plaintiff’s prior leg injuries arising from an accident approximately 30 years earlier when, at the age of five, he was run over by a truck. That affidavit, which lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact, was insufficient to rebut the medical opinion of plaintiff’s physician.

Is there anyone in this world who thinks a construction worker would electively have his own leg amputated? Or that any doctors would violate their Hippocratic Oath in order to do it? (OK, maybe this one, but I mean normal doctors.)

What’s really amazing is that after the third-party defendant, the employer,  lost in the court below, someone actually thought they could prevail on an appeal.

 

January 14th, 2011

Has Your Avvo Rating Decreased? (And Why Is There “No Concern” Over the Disbarred Lawyer?)

I got an email from lawyer-rating site Avvo two days ago. It told me that my Avvo rating had dropped from 6.7 to 6.6. The top score is a 10.

Had I done something wrong? No.

Had I been reprimanded or disciplined somehow? No.

And I also noticed that a lawyer that had been famously disbarred was listed as having “No professional misconduct found.” What’s going on around here?

The Avvo rating, it seems, is based upon its super-secret “mathematical model.” It made me wonder a bit about the 11 herbs and spices that went into this, so I read their explanation:

The rating is calculated using a mathematical model that considers the information shown in a lawyer’s profile, including a lawyer’s years in practice, disciplinary history, professional achievements and industry recognition – all factors that, in our opinion, are relevant to assessing a lawyer’s qualifications.

According to that explanation, my rating should go up, not down.

But if my rating got lowered for no apparent reason, I wondered if others were lookin’ a bit better than, perhaps, they deserved. So I checked out the former Chief Judge of New York, Sol Wachtler, to see how he was doing. He had a bright green check mark that said “No Concern.” And a statement that said “We have not found any instances of professional misconduct for this lawyer.” [Update: The Wachtler listing was updated after this post appeared; see the comments.]

So I guess that part about him being arrested, convicted, jailed and disbarred doesn’t really matter to Avvo’s “mathematical model.” Judge Wachtler was subsequently re-instated to the bar, but how could Avvo miss a story that played out on the front pages of the newspapers?

Now I don’t write this to pick on our former Chief  Judge who has done his time, as this is very old news. I do it to pick on Avvo and demonstrate that whatever “mathematical model” it claims to use clearly continues to have problems.

This isn’t the first time I’ve checked in on the company. I saw in January 2009, for instance, that there was “no concern” over a registered sex offender. It’s two years later now, and Avvo still can’t seem to get its act together with respect to the most basic of ratings (finding misconduct), according to my utterly unscientific check of exactly one famously disbarred lawyer.

But one thing Avvo has been very good at is gaining attention for itself. There have been no shortage of articles, and links, to the site. That gives it Google juice, and thus a self-fullfilling prophecy is born; if lawyers are worried about potential clients seeing an Avvo rating, then they will want it to be a perfect 10. If you Google Avvo, you will find there are now over a million hits.

And how do you get the higher score? How do you get to be a 10? Well, Avvo is perfectly happy to tell you that “Peer endorsements do affect the Avvo Rating.” Ahhh, so if you can persuade your friends to review you, that will help get you a better objective rating. But ignore Avvo and just be the best lawyer you can be, and your rating may drop. This, of course, doesn’t make sense in any logical universe.

But it does make sense if you want to make a buck. Avvo, after all, isn’t in this game to be altruistic. If  you let your friends know about the site, and get them to review you, your rating will go up. Big win for Avvo. Big win for anyone that plays Avvo’s game. Not such a big win for lawyers that just do their job.

And there’s more. I know this will come as a great shock to many but, if you pay the company a fee, they will give you benefits; like turning off the advertisements that would otherwise run right next to your name.

But wait, there’s even more! If you order soon, there may still be openings for “sponsored listings” in your area! That’s right, like a gazillion other lawyer search companies, Avvo is in the pay-us-to-highlight-your name game. This is the pitch I got from them in September;

I wanted to let you know that we have a sponsored listing position open for Medical Malpractice in New York County. This is your chance to be showcased throughout Avvo when consumers are seeking legal assistance. Not only will you get listed above top-rated Avvo attorneys in search results, you’ll also get featured on every page where consumers (who live in New York County) are researching Medical Malpractice information.

Then I got another one in October, another in November and another in December. Nice. They look just like a thousand other pitches I’ve received.

So in the end, it really isn’t about a rating, and perhaps lawyers that watch Avvo should stop pretending it is. It’s about generating buzz by getting your lawyer friends to rate you, getting higher Google page rank, and ultimately getting fees from lawyers to have their names stuck  up above the listed ratings. Avvo has just figured out a more sophisticated way to do this than most of the other slobs out there. The ratings, it seems, aren’t really all that important except as a come-on to the lawyers that the company wants to pitch services to.

The company has now expanded to add doctor-ratings. There is exactly zero chance this will be any better than lawyer-ratings.

(All Avvo links coded as “nofollow” so as not to make the situation even worse)

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Updated: I noodled around with Avvo and added some faux awards like SuperLawyers and ABA Blawg 100. My rating went up. The Blawg 100, of course, says nothing about my skills in the courtroom. And my SuperLawyers “rating” is one that I’ve already discussed my ambivalence about.  If I paid money for another faux award, the Million Dollar Advocates Forum, would that also increase by “rating?” I also added a few speaking engagements and op-eds I’ve written.

And this was interesting, I inadvertently listed the same publication twice. When I deleted the redundant one, the rating went down. In other words, not only isn’t there any check on the quality of the publication, there isn’t even a check on redundancy.

In essence, the Avvo nonsense doesn’t really rate lawyers at all, but rates their ability to promote themselves by giving them information. Then they contact you to try to sell you advertising.

See also: Attract Clients with a Crappier Avvo Rating (Big Legal Brain)

 

January 11th, 2011

An Arizona Massacre (Who Are the Heroes?)

Jared Lee Loughner mug shot

I rarely write about criminal defense law, since it isn’t what I do. But today it’s worth taking on the subject in light of the attempted assassination of Rep. Gabrielle Giffords and  the murder of Judge John Roll and five others. I write because it deals with the heroism of lawyers.

Several people have already been properly placed on pedestals due to their split-second actions in the face of great danger that saved the lives of many others. Had Bill Badger, Patricia Maisch, Roger Salzgeber and Joseph Zamudio not acted swiftly,  Jared Lee Loughner would likely have continued his rampage.

But there are others that we also need to celebrate.  And this likely includes his new defense lawyer, Judy Clarke, who defended the Unabomber and has been involved in other high profile defenses. I assume she will have the assistance of others.

Why celebrate the defense lawyer? Because here is a person that will:

  • Represent a hated individual;
  • Receive death threats from other wackos out there;
  • Be outgunned by the Department of Justice;
  • And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.

In other words, she and her team will voluntarily take on one of the crappiest jobs in America, and do so at great personal risk. Whatever personal risk may usually exist for the criminal defense bar — and it surely does for many who represent some tough characters with even tougher frenemies — it will likely be magnified a zillion-fold in a case like this.

I would have left this subject alone until I was reminded by an Above the Law story yesterday by David Lat of some of the risks.  He discussed how attorney Tali Farhadian has moved to a prosecutor’s office after being reviled as one of the “al Qaeda Seven.” The “al Qaeda Seven” was the name Liz Cheney used to describe those lawyers that had the audacity to defend accused al Qaeda terrorists. While Cheney’s contempt of the Constitution was repudiated by many in the public eye, you can be sure there were many people hailing  her conduct. That is just the type of spewing that can set off unstable people, and in a nation of 300 million, there are a few out there.

If you want to know what motivates a lawyer to take the risks of stepping into the malestrom, the answers will be many. For some it will  include a deep appreciation for the Constitution, or a passion about an injustice being done. But those aren’t the only answers. The “How can you represent a guilty person” question is the classic cocktail party query that defense lawyers get (and us PI guys are spared), and I’ll leave it to others to more fully answer how they handle that: See, for example, Bennett, Greenfield, Kindley, Spencer, Koehler,  Seddiq, Tannebaum, Horowitz, and Gamso.

But suffice it to say from my outside-the-criminal-defense bar perch, that I am continually impressed that there are people out there that will take great personal risks for people so universally reviled. This is not about the run-of-the-mill drug bust, DUI, or even a murder. I’ve always been impressed with those that had the courage to take the extraordinary heat simply for doing the job they were trained to do.

And since my personal definition of a hero is a person that sacrifices safety or comfort and goes to a place of danger, and does so for the benefit of others, then these defense lawyers will fit that bill.

Will it benefit the lawyer also by being associated with such a high-profile case? Sure. When it’s all over, there will likely be plenty of people wanting their services. But they have to survive the crazies first, and in a case like this, they are likely to be crazier than usual.