June 29th, 2010

A Dead Child In Central Park (6 Legal Issues)

It is rare for me to discuss a local accident. But I do so today regarding the tree limb that fell over the weekend killing a 6 month old girl in Central Park that also critically injured her mother. She was holding the baby and posing for a picture being taken by the father on a clear summer’s day. It is, essentially, a trauma that could have happened to anyone.

And I write because WABC-TV called me to discuss the liability issues on the air, and it raised a number of concepts that local television isn’t really equipped to handle in soundbite format. And the last two of those issues are things that the Legislature should address:

First — A Duty to Inspect: The tree was inside the Central Park Zoo, run by the Wildlife Conservation Society that also runs the Bronx Zoo. But the limb was overhanging an area just outside the zoo where it came down. Who’s responsible? The answer is that the owner of the tree has a duty to inspect and maintain that tree. And the landowner over which that limb hangs, and under which its patrons walk, also has that duty. And given that this is not an obscure part of the woods but one of the most heavily trafficked spots in Central Park, that duty is rather substantial.

Second — Contractual Obligations: Based on news reports, the Central Park Conservancy has a contract with the Parks Department to do inspections. This would be a contractual obligation that could likewise make them a defendant if a suit were brought.

Third — Notice of a Troubled Tree Limb: The issue of notice is critical, meaning that the zoo/park would be responsible only if they knew, or should have known, that there was a problem with the tree limb. This is similar in concept to the banana peel on the supermarket floor. Just because someone slips on it doesn’t make the store responsible. The store needs to have known it was there (an employee saw it or customer told them) or it was so blackened and old that it is clear the store should have known about it with reasonable care. Those same concepts apply to the tree limb, and much will be made in the investigations about the adequacy and reasonableness of the inspections that took place (if they took place).

Fourth — The Rush To Find a Lawyer: This veers off now away from responsibility to the sad fall-out of tort “reform.” If a municipality is going to be sued, then local laws require people to file a Notice of Claim within 90 days of an incident so that the municipality can investigate. That means that while the husband/father is grieving and trying to help his stricken wife, he has to go looking for lawyers and meeting them. That is terribly unfortunate, but the sad result of attempts by our Legislature to limit actions by forcing excessively tight limitations periods on those that have been injured.

Fifth — The Demand for Damages: Not only must the father find a lawyer fast (and without a clear head he runs the risk of making a mistake in who he hires) but that lawyer must then make a demand for damages in that Notice of Claim. In other words, without even knowing what the future holds for his wife, there must be some number stuck in the Notice. This is a practice that has been mostly legislated out of existence, except for this one place in the Notice of Claim. But that number will bear no relation to reality. Since the extent of the injuries won’t be known at such an early stage, the lawyer must cover all contingencies and assume a worst case scenario. But this unrealistic number will then be broadcast in headlines far and wide by the media as if it actually has meaning. The Legislature should get rid of this provision, as it serves no useful purpose whatsoever other than for headline writers.

Sixth – Valuing the Life of a Child: In New York, unlike the vast majority of other states, a parent cannot sue for grief over the lost child. An action can only be brought for the pain and suffering of the child, or a wrongful death action for the financial loss. So if a child was knocked out at the time of a car accident, for example, and doesn’t physically suffer and dies afterward, the law deems the child’s life to have little value since there was little financial loss to be expected. The family is thus unable to hold accountable those that did the true damage. While some may feel odd about financial recoveries under such circumstances, it is really up to the people who suffered the loss to decide if they wish to donate money to charities, fund education, or embark on any other type of expense that they believe appropriate. The Legislature should bring our archaic wrongful death law into the modern era, and rid us of this insult to grieving families.

June 28th, 2010

My Turn In the Jury Room (And Who Should Sit Jury Duty On What Kinds of Cases?)

In 1997 I sat as a juror. And a post by Scott Greenfield on whether criminal defense attorneys would make good jurors in a criminal case, and the fact that I picked a jury last week and just re-told my experience to opposing counsel, leads me to today’s reflection on whether personal injury attorneys could sit fairly in a personal injury case.

The question can equally be asked, of course, about whether doctors and nurses can sit in malpractice cases, and you can follow this through for any other profession.

But first my experience: This was a criminal prosecution, the nuts and bolts of which were that two guys were walking down the street in midtown Manhattan peering into cars, while being trailed by two undercover cops watching the peering. One was on trial, and we weren’t told why the other wasn’t.

There were about 30 jurors in the pool, and I was the very last one to be questioned. And this was the interesting part: There wasn’t a single question on what type of law I practiced. Calling the questions perfunctory would be an insult to the concept of brevity.

The trial lasted two days, and consisted of the two perps stopping at a fish truck — yes a fish truck — and the cops watching from a neighboring deli while the defendant and his buddy tried to make off with the shrimp. In the middle of the afternoon, in the middle of midtown. They did not win any awards for genius that day, or likely, any other day of their existence. One cop broke the tip of his pinkie grabbing the guy that was standing trial. That added a charge.

When we got the jury room, I spoke quickly before anyone had a chance to voice their opinion and dig into any position. I’ve had juries that were out deliberating for days, and I didn’t want anyone to stake out a position quickly, because changing minds after they are made up can be difficult. I asked my fellow jurors to simply comment on one piece of evidence that they thought was interesting, without saying whether the guy was guilty or not.

That discussion gave him 30 minutes of deliberations, which I think we all later agreed was 29 minutes more than he deserved, but it was good to flesh out the evidence that we heard. Everyone wanted to do the right thing.

Afterward, I asked both the prosecution and defense counsel why they kept me. The prosecutor said she wanted someone that was smart for a slam-dunk case (though all she knew was that I was an attorney). Defense counsel said he liked lawyers, because lawyers were always looking for loopholes.

It was, I think fair to say, an experience any trial lawyer should go through. It’s good to appreciate on a first hand basis what happens on the other side of the jury rail.

My biggest reaction to the questions and answers that flew during trial, however, was the urge to leap over that rail, push the lawyers out of the way, and say “That’s not how you ask a question. Here, let me show you…”

But what of PI lawyers sitting on PI cases and docs/nurses sitting on malpractice cases and crim defense lawyers sitting on criminal cases?

My experience, both as a juror and as one that has spoken with thousands of picked and potential jurors, is that most people that get picked truly want to do justice. Most people. Though their visions of justice may vary quite a bit.

And the trick is, obviously, ferreting out the bad apples, which is to say, those whose ideas of justice may be vastly at odds with your client’s. Can the doctor sit on the malpractice case or the PI lawyer on the PI case (or the criminal defense lawyer on the criminal case)? Sure. Why not?

Do you think that plaintiffs’ personal injury attorneys would be biased in favor of all plaintiffs? If you thought that you would be very wrong. Because we all see something that the public doesn’t see. We see all the reject cases that aren’t worth a damn. There was no negligence, or if there was, it didn’t cause an injury. Of if there was, the injury was too small to make it worthwhile. Or the potential client wasn’t credible to us. Reject, reject, reject. In the malpractice realm, I reject a healthy 95-98% of the time.

A juror has to know how to reject a bad case, and this is something we are used to doing. In fact, if we don’t do it well, we face bankruptcy because it is our time and money that is being spent on the matter. The contingency fee system can be harsh that way. This tends to make us rather objective in evaluating suits.

And the doctors? Some can sit, some can’t. Some are so wrapped up in the politics of medical malpractice “reform,” drinking the insurance industry Kool-Aid, that they are too biased. Others have no problem sitting, as they often see the screw-ups of others, and some have been angry about those screw-ups.

So you gotta ask those potential jurors, since you only have three peremptory challenges to work with here in New York, to look inward. “How will you feel,” you ask the doctor, “To tell your co-workers that you brought back a verdict against a doctor, assuming you think the verdict is justified?” And you watch the reactions, the hesitancies, and listen for the word choices they make. Some are comfortable with it, some not.

Jurors pick themselves. Some can do it when the issues are close to their profession, some not. There’s little point being coy about it and ignoring the elephant in the room. You ask.

In Greenfield’s case, the judge excused high profile defense lawyer Gerry Shargel. Why? Mayor Mike Bloomberg sat jury duty. So did Rudy Giuliani. And Chief Judge Judith Kaye. No one is excused. If the lawyers think the person can’t be fair, so be it, but the idea of dismissing people just because of their occupation is something we don’t do in New York anymore. Because some of those potential jurors might turn out to be damn good ones.

June 20th, 2010

Happy Father’s Day, from Me and Harry

With my kids now tucked in and, I hope, happily in dreamland, I wanted to finally write that Father’s Day message. But Harry Chapin already did it as well as could be done with Cat’s in the Cradle, about his son Josh growing up while he was out there trying to make a living with his guitar. I think of the song with every school play, baseball game and other event that comes up in the lives of my kids.

And so, to all those father’s who spend more time that we’d like away from the home, in order to support that home and do our best for the people that we represent, I bring you this live rendition of Chapin. I was surprised, in hunting this down, to learn that the song had been covered by so many others, including Guns N Roses, Johnny Cash, and others (compilation). But this version is all Harry:

Harry Chapin, live, Cat’s in the Cradle

June 17th, 2010

Empire State Bldg Jumper Loses Suit Over “Emotional Distress”

Do you remember Jeb Corliss? He’s the clown that tried to BASE jump off the Empire State Building in 2006, got busted by security, and then sued the building claiming emotional distress. I know, I know, that sounds even dumber than the claim of being fired for being too sexy, but it’s true, he actually did make such claims as I wrote about a year ago: Empire State Building v. Jeb Corliss.

Well, first he was convicted of reckless endangerment, and sentenced to three years probation and 100 hours of community service. Then his lawsuit for defamation — he claimed it was defamatory to claim his conduct was illegal, a concept that fell by the wayside upon his conviction — and his claim for emotional distress, were tossed out.

Justice Jane Solomon wrote that “Preventing an individual from jumping off of the 86th floor of the Empire State Building is neither extreme nor outrageous,” (h/t Overlawyered).

And just to make sure he got the point, the judge also banned him from ever setting foot in the building again. Why do that? Presumably so that if he tries again, and again endangers the lives of the pedestrians on the street below, a future judge can add contempt of court to the charges that he will face.

He was also fired from his job as host of the show Stunt Junkies. And the Empire State Building’s lawsuit against him for disrupting its business will be allowed to go forward, meaning that he might stand to lose a pretty penny in cold, hard cash when this is all over. Unlike the overwhelming majority of injury cases, it’s rather unlikely that there is an insurance company standing there beside Corliss for his intentional act.

Was all the publicity worth it?

Maybe he can commiserate with ‘too sexy’ banker Debrahlee Lorenzana who is now the laughing stock of New York (because with two wars, a crappy economy and a massive oil spill, we need something to laugh about). They’d make a great couple in the never-ending pursuit of celebrity. They could even make babies together: Imagine the offspring of a dipsy banker and a brainless stunt junkie. I know there’s a joke in here waiting to get out, but I can’t really top what the two of them have already accomplished, and besides, their abuse of our court system saddens me too much.

You see, when people go into the courthouse for “regular” lawsuits over real wrongs and real injuries, it is the high-profile nonsense that jurors will have have read about. It’s the nonsense lawsuits — the outliers — that get all the attention, and they get it for just that reason, they are outliers. And that taints the jurors’ perceptions of the justice system, and makes everyone more cynical about how our judicial system operates.

Jeb Corliss and Debrahlee Lorenzana may have made fools of themselves,but they have hurt others who actually need access to the courts.

June 17th, 2010

Debrahlee Lorenzana’s ‘Too Sexy Lawsuit’ Updated

A week ago I wrote of the loser lawsuit by Debrahlee Lorenzana who claims she was fired by Citigroup for being too good genetically sexy, because we know that happens all the time. And the subsequent revelation that she also happened to love plastic surgery, participated in a reality TV show on the subject, had a couple of breast augmentation surgeries among other stuff, and that she was likely to have more than a few credibility issues if this suit ever survived the inevitable summary judgment motion.

While I contemplated that her lawyer would dump her when the TV show stuff came out, in now seems that she has dumped the lawyer instead, claiming that her sex discrimination lawyer was in fact a discriminator himself, based on an old, abandoned lawsuit by someone else.

And just when you thought it couldn’t be any wierder, she hires Gloria Allred instead (previously here: Gloria Allred v. OctoMom (What’s a “Celebrity Lawyer?”)) who apparently isn’t even admitted to practice law in New York.

Who cares if the case is a dog, as long as you get your name in the papers, right?