November 22nd, 2010

Chandra Levy and The Rush to Judgment

A guilty verdict came today in the murder trial of Chandra Levy. She was an intern in Washington who might (or might not) have had an affair Congressman Gary Condit ten years ago. She was murdered while in Washington’s Rock Creek Park.  Fox News, at the time, turned this into its summer story as All-Levy-All-The-Time trying to force Condit from office.

But that isn’t why I write on the subject. I write because, according to this article, the evidence at the trial of Salvadoran immigrant Ingmar Guandique, who was arrested last year and charged with the murder, was reported as thin:

Prosecutors Amanda Haines and Fernando Campoamor-Sanchez obtained a conviction even though they had no eyewitnesses and no DNA evidence linking Guandique to Levy. And Guandique never confessed to police. Prosecutors hung their hopes in large part on a former cellmate of Guandique, Armando Morales, who testified that Guandique confided in him that he killed Levy.

But that news blurb doesn’t mean I have an opinion on guilt. I wasn’t in the courtroom hearing the evidence. By contrast, peruse the comments of the article and look at the rush to judgment in so many different comments. People make up their minds, not on hearing evidence over the course of a trial, but on how some reporter distills it all down to a few sentences. Here are a few samples from the last 10 minutes (there area already over 2,000 comments):

This sounds fishy. No direct evidence—I doubt that this guy would have been convincted if he was a smiling white guy without tattoos. Yes, he committed other crimes, but that doesn’t make him guilty of this one by default. I’m ashamed of our justice system for this decision and I hope it is appealed and overturned.

I think it is weird there is no DNA evidence but at least this guy is going to jail so he won’t attack any more people, just think about what his other victims went through, very glad he is going to jail!

This guy is innocent and the justice system is guilty!!!!!!….what a bunch of stupid attorneys, judges and jury group…seriously??…any fool can see that he did NOT kill her based on NO evidence…the Levy family did not put closure in anyway on this situation…it just reopened the wound!

so how did he become the murderer…wheres the evidence?! I’d love to see it!

another sacco and vanzetti trial

This man didnot do it. The DNA belongs to the middleman of Condit. Fear for his life and bribe for his family made him accept the verdict.

Those knee-jerk reactions are familiar with anyone that has picked a jury. It’s the rush to judgment over “these kinds of cases” if you happen to have a routine sort of fact pattern, such as a car accident. There are many who have already made up their minds. Facts aren’t really important to some people, because they have already made an emotional investment by forming an opinion on the case.

And the job of the trial lawyer is to find out who these people are before they get a chance to sit.

 

November 19th, 2010

Massive 9/11 Case Settles as Plaintiffs Meet 95% Threshold

The September 11 suit concerning 10,000 responders and clean-up workers at the World Trade Center settled in June for $712M, with an important provision: At least 95% of the plaintiffs had to agree.

And that has now happened, reports the New York Law Journal.

The plaintiffs lawyers undertook a spectacular risk by taking these cases on, and had to borrow millions of dollars to do it. While critics in the past have looked only at the fees they will earn, few ever look at the risks of failure. A big tip of the hat to Worby Groner Edelman & Napoli Bern for having the cajones to do this.

 

November 19th, 2010

Linkworthy (Themeless Edition)

Things I’d write about if I just had more time:

This really deserves it’s own post: Hospital errors play role in 15,000 deaths a month, study finds

Why write a law blog? (Blawgletter)

Medical Malpractice Waivers: A Bad Idea Whose Time Will Never Come (Alan Crede)

I don’t usually do intellectual property stuff, but…The Battle of the Breastaurants: “Twin Peaks: v. “Grand Tetons” (Siouxsie Law)

While I celebrated my four-year blog anniversary yesterday, Bob Ambrogi celebrates his eighth year anniversary today. (Law Sites)

A 14-year-old girl is hit by a speeding car, rendered quadriplegic and brain damaged, and is only able to recover $200,000? Scott Greenfield explains (Simple Justice)

A $2.5M verdict for post traumatic stress disorder gets cut in half by an appellate court. John Hochfelder explains how it gets done

Did you know there’s a Golden Asshole Award? And further, that it’s an actual honor to get it? Vickie Pynchon explains why (Negotiation Law Blog)

Banks and hedge funds investing in lawsuits. Max Kennerly takes it on (Litigation and Trial)

How does the tort “reform” lobby get funded? C’mon, you know the answer…

Pink Tape has Blawg Review #290;

Colin Samuels continues his Round Tuit round-ups, with a discussion of the TSA scandal involving their new groping policy;

And TortsProf continues on with a Personal Injury Law Roundup.

 

November 18th, 2010

Abraham Lincoln, Twitter, and This Blog

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address? Because it teaches people to be succinct.

And today is the four-year anniversary of this blog. When I started it, it was with the desire to take complex ideas and break them down to simple concepts. I don’t know how well that worked, but it’s something I strive for and seems related to the concepts above.

I picked up that lesson from my father, who ran one of the largest plaintiff’s medical malpractice departments in New York until he retired. He demanded that every case be described in one line, almost like a Twitter post. Because if you knew the one-liner, it meant you knew the case. It also came in handy when the judge asked you what the case was about. So a case might be described, for instance, as a “10 month failure to diagnose and treat breast cancer in a 53 year old woman resulting in…”

And master legal writer Bryan Garner insists that, when framing an issue for court, a lawyer should do so in no more than 75 words. If you can’t do it in 75 words you don’t understand it, and therefore you can’t communicate it to the court

Brevity and clarity are important. They focus the brain.

And with that, I give you America’s most famous trial lawyer, who delivered these words 147 years ago:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

See also:

 

November 17th, 2010

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue: