Courts in New York City are closed today for the snow storm, as they are in various places up and down the eastern seaboard. So what happens if the statute of limitations expires today, and the courts are closed?
I popped that question to David Gottlieb, who runs No-Fault Paradise (and theCPLRblog). In the comments of this post: Snow Day? he tackled the issue.
And the good news for New York practitioners (and their clients): We are safe. He found Martin v. J.C. Penney Co., Inc. 275 A.D.2d 910 (App. Div., 4th, 2000), which arose when the courts in Buffalo were closed for a storm on the same day the SOL was to run. We get the extra day because Judiciary Law 282-a provides that,
“[w]henever the last day on which any paper is required to be filed with a clerk of a court * * * expires on a Saturday, Sunday, a public holiday or a day when the office of such clerk is closed for the transaction of business, the time therefor is hereby extended to and including the next business day such office is open for the transaction of business.”
Check out comment #2 of his post for the decision. So unless someone can challenge the power of the court to close itself down, you’re good.
Of course, it would be slightly better practice NOT TO WAIT UNTIL THE LAST DAYTO FILE YOUR PAPERS.
Rep. John Murtha (D-PA) died yesterday, a week after routine gall bladder surgery (cholecystectomy). He was a powerful congressman with his finger on the button of Pentagon appropriations.
And with his high-profile death comes an opportunity to explore some medical malpractice issues.
So let’s do this in Q & A form:
What is the first reaction as to why this happened?
First up is the most common reason for malpractice litigation with gall bladder surgery: That the common bile duct was mistakenly cut. I don’t know what happened here, of course, since I don’t have the medical records or the autopsy results, but you can bet that is one of the first places people will look.
As basic background, the liver produces bile that helps us digest. It is transmitted to the intestines via ducts. The gallbladder stores bile. A schematic is seen here at left.
Was this due to infection, instead of a common bile duct injury? Some are claiming that the death occurred because the intestine was mistakenly cut during surgery, and that this caused an infection. Someone investigating the case would then naturally ask the following questions:
Was the cut intestine noticed during surgery, and if not, why not? Cutting something that you’re not supposed to cut is one thing. But failing to notice that it was cut is a whole different thing. This is often the dividing line between when a malpractice case is successful or not. Bad results by themselves don’t mean malpractice. Failing to recognize mistakes, however, is a different concept entirely.
If noticed during surgery, what was the response? This surgery was done via a laparoscope, in which the scope is passed through a small incision, with surgery done with a camera-assist. Depending on when and where the bad surgical cut happened, and whether it was noticed at the time, the logical questions are who, if anyone, was called in to assist in the repair and how was it done?
When were the first signs and symptoms of infection noticed and reported and what was done about it? If the cut was noticed during surgery, then in addition to any potential antibiotics that may have been given, would have been very strict discharge instructions to the patient on the signs and symptoms of infection and the critical nature of prompt action.
If this is a known risk of the procedure, why blame the doctor? This one is a classic, and defendants love it in the courtroom. But it is the wrong question to ask. The issue is not whether something was a known complication or risk, but whether it was avoidable with good care.
Think of it this way: Is a car accident a risk of driving? Does the fact that accidents are a risk of driving mean that the guy who ran the stop sign is not responsible?
Was Murtha just one of up to 98,000 estimated deaths from malpractice in the US each year (Study: To Err is Human)? Time will tell on that one. And we will see to what extent if death has an effect on the health care debate in Congress and the desire by some to grant certain immunities to the medical industry for malpractice.
On a last note, not only was Murtha deeply involved in political-military issues, but the surgery took place at the National Naval Hospital in Bethesda, MD. This adds another potential political element to any investigation or legal action in the event that family moves in that direction.
Maybe someone that knows Latin can help me. I’m looking for the proper way to write “Let the Lawyer Beware!” much the way the buyer must beware (caveat emptor). An online dictionary tells me that consultus is the Latin for legal expert, and from which consultant is derived; though jurista seems like a possibility and it also looks and sounds better.
So this post has nothing to do with being afraid of lawyers, but rather, as a warning to those with the juris doctorate.
Frankly, I’ve always hated the use of Latin phrases in the law, as it always seemed pretentious. My usage is usually de minimis, limited to res ipsa loquitor and a few other well known phrases. But if using Latin helps save someone from outsourcing their marketing (and ethics) to others, it will be a good thing.
Why write on this again? Because I’m featured in the ABA Journal this week, in an edition that deals with online activities, Wired! The article is part of The Business of Law section, entitled Search and Deceive, and dedicated to comment spam and the problems hiring marketers for law firms. (Kevin O’Keefe is featured also, and as you can see from the picture they used, he’s clearly more photogenic than yours truly.)
With the proliferation of social media forums and fly-by-night legal directories, lawyers need to be even more cautious when they enlist the services of outside sales and marketing firms to improve website traffic and search engine rankings.
The many problems with FindLaw, of course, equally apply, but the FindLaw postings occurred after the original article was written.
It’s good to see these problems now leaking out of the legal blogosphere to mainstream legal publications.
But I still need that Latin phrase. Though I’ll accept Middle French, Middle English and any other dead language. Anyone? Bueller? (Yeah, I know, like he’d ever know Latin…)
Now I know what you’re thinking with this headline: “John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?”
No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluff interview with New York Magazine earlier today where this question and answer appeared:
Who is your mortal enemy?
Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers
Awww, isn’t that cute. Johnny-boy wants to kill me and all the other personal injury attorneys in the country. We’re his “mortal enemy.”
The guy must have been sued big time and got clobbered to have that type of hissy fit. Oh wait. It was the other way around.
That’s why Stossel is so much fun to write about. You see, he was the plaintiff in a lawsuit after professional wrestler Dave Schultz slapped him twice. But he didn’t just sue the wrestler that smacked him down, but the World Wrestling Federation as well. The case reportedly settled for $400,000. Here is the video of the two slaps (with an out take above):
So what happened to change his mind? Usually, I refer to tort “reformers” as people who have never been seriously injured by the negligence of another. The hypocrites suddenly see the light when they become injured.
So here’s my list of theories on why Stossel flipped backward after being compensated for his injury:
1. He wasn’t seriously injured, but claimed that he was, and therefore assumes others that make claims are just like him;
2. He hated his own attorney, and therefore assumes others are just like him or her;
3. He realized that beating up on lawyers is super easy to do because when we defend ourselves we sound like, well, lawyers;
4. If you shill for big business, you get lots of speaking fees for conventions.
5. Since the time of that incident, he’s been sued or threatened with suit a number of times and isn’t too keen on being on the other side. From a profile on Stossel comes these revealing incidents that tend to support the “I hate being on the other side” theory:
Accuracy isn’t one of Stossel’s strong suits. He’s admitted to making a number of serious mistakes in the past, he’s been sued in connection with his reporting, and the “research” he’s used to prop up his arguments has been routinely debunked by leading academics. In 2000, for example, Stossel declared that organic produce was worse for you than conventional fruits and vegetables; it turned out his report had been based on faulty research and he was forced to issue a public apology. When he argued that global warming was a myth, no less than 104 Nobel Prize winners took him to task. (For his part, Stossel said he was relying on another group of “unnamed” scientists.) More recently, he had to issue a correction and an apology to the evangelical pastor of an African-American church after he distorted his words.
Stossel is — and this is fun to add — not just a hypocrite on tort “reform” but on his avowed libertarian philosophy. He has stated that “Free markets, not coercive governments, are the consumer’s best friend. The people who are really ripping us off are the lawyers, the politicians, and the regulators.” Yet, when it comes to litigation, he wants Big Government to come riding to the rescue to protect him.
In April 2002, Stossel hosted a fundraiser in south Texas for Citizens Against Lawsuit Abuse, a corporate front group that was helping doctors seeking caps on malpractice lawsuit damages.
Ahh yes, Big Government coming in to protect negligent doctors. That is just what anti-government libertarianism is all about. Way to go Johnny-boy.
And now, after digging around a bit, I come to The Admission as to why he actually flipped. From the same Washington Monthly piece comes this whopper:
While he doesn’t include it in the book, Stossel did once offer the real explanation. In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, “I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”
If he ever decides to give up his career as a pseudo-journalist, he would make a perfect spokesman for the US Chamber of Commerce, which has, ahem, started its own frivolous lawsuit.
As a famous reporter has been heard to say, Hey, give me a break.
I was amused some months back when I was named one of New York’s personal injury “SuperLawyers.” I had some ambivalence about it since it was difficult to know much about the magazine’s methodology in making selections.
But no matter now; the company has now been sold to Thomson West and my days on the list, it seems safe to say, are numbered. I’d bet good money I won’t be on it next year.
So you can bet that FindLaw will make sure that SuperLawyers keeps a healthy distance from me next year. But they really have a bigger problem than little old me.
You see, folks, FindLaw will want it’s big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word “synergy” into the ears of the powers-that-be.
So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.
Over at Bob Ambrogi’sLaw Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies. He writes:
[Christopher Kibarian, president of the Business of Law group] said that a key priority for Thomson will be to provide assurances of the independence and integrity of Super Lawyers ratings. Super Lawyers already employs a rigorous selection process, he said, one that has been recognized by bar associations and courts across the country for its credibility and sophistication. It combines peer nominations and evaluations with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
On top of that, Thomson will create an independent advisory board to ensure the integrity and independence of the ratings process.
FindLaw’s credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer’s brand, which already suffers from credibility problems. But as long as they keep FindLaw’s dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.
If Thomson West has any hope of success here it will have to figure out way to rise to a higher place. As the legal blogosphere confronts ugly lawyer commercials, ghostbloggers (more, more and more) comment spammers, and marketing hustlers of every stripe, the major companies should be trying to reassure its customers that if they are entrusted with the marketing of a lawyer (and therefore with the lawyer’s ethics) they won’t screw things up. And right now, the opposite is happening.
