November 15th, 2019

Impeachment and the Art of Direct Exam

I caught a few minutes of the the impeachment proceedings and wanted to discuss one small point, because it relates to trial practice for a personal injury case.

OK, maybe you didn’t see that coming. But here I am.

Since this isn’t a political blog (except insofar as it takes on personal injury issues) I won’t get into the details of the inquiry, as I would likely never emerge from them.

No, instead I wanted to focus — for just a moment — on a trial tactic. And it came in the form of a direct exam of Ambassador Yovanovitch by Democratic counsel Daniel Goldman.

Direct exam. Few talk about it. It seems so boring. Cross is where it’s at! And summation! That’t the kind of exciting stuff that Hollywood likes and that law students dream of.

But in direct, the questions are short and simple, and designed to draw out two different things from a fact witness: Tell us the facts of what happened, and (sometimes) tell us how you felt about it.

Goldman shows the art of the direct in particular when asking Ambassador Yovanovitch about how she felt about intimidated and the smear campaign against her.

Forget the answers that she gave, for the purposes of this piece, and listen to the questions.

The idea is to get her to talk about an uncomfortable topic. Kinda, sorta, what personal injury lawyers do when they try to get their own clients to talk about how injury x affected their lives. (Because mental anguish is part of the damages.)

The questions are understated. There is no legalese. The questioner virtually disappears with the type of simple questions that it seems like an inquisitive and uninhibited middle school kid might ask.

On the tape, starting at 2:27, are these questions regarding the ambassador’s physical safety, that start with Goldman trying to pull out facts:

What did the Director General tell you? What happened next? Did she explain in any more detail what she meant about concerns for your security? Did she explain what the urgency was for you to come home on the next flight?

Then later on he tries to pull emotional testimony from her:

At 8:45 — So, just like that, you had to leave Ukraine as soon as possible? How did that make you feel?

13:37 — What was your reaction when you heard the President of the United States refer to you as “bad news?”

14:24 — What did you think when you heard President Trump had told President Zelensky that you were “going to go through some things.” What were you concerned about? Did you feel threatened? How so?

One might easily argue that if this was an actual trial these questions about her emotions would be objectionable since they don’t go to the facts of Trump asking a foreign government to interfere in our elections for his personal benefit, or using official acts to “persuade” that foreign government to do it.

But the comparison to a personal injury trial were unmistakable to my ear. Because the emotional fallout does matter. And therefore the questions were, in their essence, simplistically superb.

Make no mistake about this: This might look easy but it is hard work since it requires a mastery of the facts and hard preparation to gently guide witnesses along the path that you want them to go, without making it look like you are guiding the witness down any particular path. That work wouldn’t be obvious (and shouldn’t be obvious).

And if all goes according to plan, the witness is the star and the jury forgets the questioner is even there. There’s no posturing, or preening, or emotion, or speechifying.

It just sounds like you’re asking the same questions that any curious individual would ask: …And how did you feel about that? If this was a courtroom, Goldman would probably be standing behind the jury, out of their sight, so that the jurors could focus only on the witness.

Any trial advocacy class could use this footage as a demonstration on how to do a direct exam for a witness where such impressions and effects are relevant. It was a delight to watch.

The footage is below:

November 13th, 2019

Shit-Blogging Goes Mainstream

Back in 2010 I ripped into legal publishing behemoth FindLaw because they had turned to shit-blogging: Producing “content” in the form of writing up local car collisions and then closing with “If you’ve been injured…”

I wrote at the time:

To be clear, dreck-bloggers aren’t interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom.

This pattern has now hit the sports world. On the op-ed pages of the New York Times, former Deputy Editor of Deadpspin, Barry Petchesky, discuses how he was fired because his stories did not deal, in the words of Deadspin’s new owners, with sports. Deadspin had been bought by G/O Media, a private equity firm.

Deadspin believed that sports didn’t end at the locker room, but included a whole host of player and management conduct that occurred off the field. It had an expansive view of sports, just as I have an expansive view of personal injury law that I believe covers ethics, and SCOTUS and marketing and every other aspect of a professional service business.

Petchesky was clear on his view of the scope of a sports editor:

We wanted to show the world the reality of sports, to help readers and players alike understand the labor issues, the politics, the issues of race and class that don’t materially change when the power dynamic is owner/player. In 2014, we obtained audio of then-Los Angeles Clippers owner Donald Sterling’s racist rant against what he considered ungrateful black employees. “Do I make the game, or do they make the game?” Sterling said. Deadspin’s position was that it’s all in the game.

With this purchase, Deadspin follows Sports Illustrated to the grave. Control of SI had been given to “wannabe tech company” TheMaven, which last month fired half of Sports’ Illustrated’s vaunted newsroom, and then went about trying to “hire” local people for peanuts to cover local teams.

In other words, SI is becoming a “content mill,” much the way FindLaw set out to do 10 years ago. Deadspin will presumably follow the same route as it’s website becomes zombified to run local stories that are little more than click-bait, or computer-generated articles.

And this isn’t much different than many financial articles, which are now written by computers instead of people. Every so often I see articles that will give some generic statement about a company’s earnings and I think, “Huh, you can say that about pretty much any story.” Then I Google the sentence and see that it was a line repeated over and over and over again. (See: The Rise of the Robot Reporters)

This use of artificial intelligence to write news stories isn’t limited to margin players of the news business. It’s being used by the Associated Press, Washington Post and Wall Street Journal.

The obvious problem with all this, of course, is that such pieces – whether written by computer or clueless human — focus only on the who, what, where and when. They really can’t answer why.

This downgrading strips all nuance, color, flavor and human analysis as to the greater ramifications of what an incident means. Context is lost. A robot writer cannot, for instance, understand the significance of ambulance chasers and what that might mean for society at large. It can only report on who was arrested. Or how much a stock changed relative to expectations. Or the scores of a minor league baseball game.

Computers will never see the fire in the eyes of the people involved. No matter how many shit-blogs are churned out in a subject area, th eye will always be devoid of context.

Even lowly bloggers such as myself get pitched on these “services” with “content writers” sending me emails every day asking for my humble little piece of digital real estate so that they can spam the web with their links attached to generic and dreadful “how to” pieces.

I’d rather this space go quiet than publish their pablum.

The “content” writers, whether they are human or computer generated, can’t deal with emotion. They don’t find humor and heartbreak. They can’t sit back and wonder at why things are the way they are.

As Petchesky noted:

Deadspin was the voice of the long-suffering fan, finding the humor and the heartbreak in everything in the world of sports. It was the fan wondering why he was paying $200 to go to a football game to watch a team whose owner would rather pocket profit than pay to improve the roster. It was also the fan troubled by the culture and the politics of sports, the fan who couldn’t help noticing that the larger issues of the real world spilled onto the field. Sticking to sports, pretending that sports can take place in a vacuum, would have been profoundly dishonest.

It’s only getting worse. Im not sure what, if anything, I can actually do about it. But when quality vanishes in favor of quantity, it should be noted, and a small prayer uttered that people will still see and respect quality, and allow it to rise to the top.

November 8th, 2019

Feds: Cops at Center of Ambulance Chasing Scam

Good. Let me say it up front. Good.

For years I’ve heard through the grapevine, from new clients or other attorneys, about folks being injured in auto collisions and somehow, someway, some lawyer got their telephone number and contacted them, oft times while they were still in the hospital.

From there they were steered to clinics and doctors of dubious character. They would, in turn, bill the No-Fault insurance system up the wazoo for treatment that might (or might not) be warranted. And, of course, the cases land with a certain cadre of unethical lawyers. The injured were being victimized a second time by now being in the hands of the unscrupulous. (See: Ambulance Chasers, Runners and Other Creeps.)

But I could never get anyone to go on the record here, as their concerns were not the big issue of ambulance chasing, but the very personal issue of the broken leg, pelvis or back. I even pitched the idea of running a sting to a friend in a D.A.s office. to no avail.

Who was getting the cell phone numbers and info on the injuries? Tow truck drivers? Nurses? Hospital administrators? Arrests happen sometimes, but not often enough as far as I am concerned.

But now the feds have done it, and if the allegations coming out of the Southern District of New York are proven, it seems it was some police officers in the NYPD were stealing the information to forward on to the medical clinics and the lawyers.

This is the lede from the New York Times (which didn’t bother to link to the original document):

For years, Angela Meyers, a 911 operator with the New York Police Department, fielded emergency calls, then filed reports about the calls within the department.

But according to court documents, when someone called 911 after a car accident, Ms. Meyers did something else: She also passed victims’ information to an insurance fraud ring in Queens.

The article goes on to discuss the six current and former NYPD officers involved in the medical scam ring, and the fact that 27 people have already been arrested.

The kickbacks involved some 6,000 auto collision victims being steered in this manner, with over 60,000 people having their confidential information unlawfully disclosed. (Dear Media, they are called collisions, not accidents.) But the press release notes that this “is a fraction of the number of actual accident victims whose confidential information was unlawfully disclosed as part of the No-Fault Scheme.”

I’ve railed about the subject before, oft time with use of the internet for the solicitation: On plane crashes, train derailments, and explosions. Sometimes, as with this crane collapse, it is an out-of-state lawyer using the internet for solicitation here in New York.

It may be painful for me to see a few of my brethren at the bar act dishonestly, but it is far, far worse to let it continue. Corruption needs to be rooted out.

I’ve often noted to people that lawyers who are unethical at the start of representation are not likely to be ethical later as their interests are directed to the self and not the client, one of the many valuable lessons I learned as a puppy lawyer. And that concept is mirrored in the SDNY press release:

FBI Assistant Director William F. Sweeney Jr. said: “The charges alleged in today’s indictment describe a scheme that blatantly violated HIPAA laws and actively targeted those the act was established to protect. May today’s arrests be a reminder to everyone that capitalizing on the pain and suffering of others won’t win you any favors in the court of law.”

But it isn’t just those caught up in the scams that are injured. It’s everyone else, too. When I stand up to pick a jury, there is, at times, an extraordinary amount of skepticism about the case, and that is before the facts of the case have even been discussed. Corruption by a few bad apples has a deleterious affect on the good.

And the insurance companies use these scams for their own benefit, leaping to the assumption that all cases are fraud. Even when the injuries are clearly documented, the adjusters use it as an excuse to behave in its own bad faith conduct.

Now this part is important for practicing lawyers, wondering which of our brethren were caught up in the scam: It may be you.

No way! How could that be! Well, if a cop or tow truck driver sends a case to Unethical Firm (for a tasty and unethical fee) and then Unethical refers case to Legitimate Firm, then Legitimate and its injured client may find itself in the middle of an investigation. As I noted some years ago, that happened to one of the most prominent personal injury firms in the city. And that is how illegitimately obtained cases can get “laundered.”

I’m guessing this story will have quite a few acts to go, and I intend to follow it up here as it continues.

October 25th, 2019

It’s “Eric Turkewitz Day”

There are three kinds of people in the world: Those that get things done, those that watch things get done and those that wonder how things got done.

Last night in New Rochelle I was honored by Meals on Wheels at their annual gala for getting something done. Not for its organization, dedicated to getting meals into the homes of those that can’t get out, but for community service in putting together a half marathon trail race that has averaged 700 people a year over the last several years. We get registrants from 15-20 states each year, and net proceeds go to the trails and parks.

We get good reviews.

But writing about myself isn’t exactly my comfort zone, as regular readers know. You noticed that the prior paragraph says “We?”

I write today with a broader message. About volunteering.

Stick with me here, because this time I hope to have a point.

The room last night at the gala was stuffed full of volunteers, people who are doing things for their community. People who get things done. For many of them the volunteer work they do is completely divorced from their occupations.

When I put on the race, we turn out about 200 volunteers on race day, handling a wide variety of race logistics needed to put on an event that rambles a giant loop through multiple jurisdictions. I chose a photo for this post that included a few of those volunteers for a damn good reason.

When Meals on Wheels does it, it isn’t a one day affair after a few months of planning, but a month-in and month-out commitment to give something back to the community.

Volunteering is like that, giving people a chance to step out side the box they have placed themselves into and get another perspective on the world while helping others.

Professionals in particular, I think, need to do that as many of us become so consumed with the profession — be it law, medicine or any other — that it myopia becomes easy. We become known for doing x, and as a result become ever more specialized in life regarding that x. But in doing so many of us unwittingly lose sight not only of the big picture, but all other pictures.

So get out, step up, and do something different, even for just a few hours a week. Being the person that gets something done is rewarding not only to those that benefit your actions, but for yourself as well. It’s good for the soul.

OK, short preach/pitch over.

Now about that headline calling saying that today is “Eric Turkewitz Day.” Well, it is in New Rochelle. By proclamation of New Rochelle’s mayor.

And October 28th will be “Eric Turkewitz Day” again, this time by proclamation of the Westchester County Board of Legislators. And I have the documents to prove it.

One fun little note about the documents — and this includes citations and proclamations from statewide legislators — is that much of the information comes from the little bio that I wrote for the official gala program.

But I had no idea that, when I mentioned my dog Tucker McDoofusPants in that bio, it would end out in many of those official proclamations.

The Mayor said, “So let it be written.” And it was.

October 10th, 2019

Personal Injury and …Copyright? Seriously?

Well, it isn’t often (read: never) that personal injury law runs headlong into copyright. But here we are.

As many people know, when you sue somebody over a broken body part the defendant gets to have that body part examined by one of their own doctors. This is known as a defense medical exam, or medical-legal exam, but sadly often referred to as an independent medical exam despite being an inherently adversarial situation.

But regardless of terminology, the defense still gets their exam. And every so often that may entail a neuropsychologist exam.

And these exams are often contentious because what actually happened (a fly-on-the-wall view) and what doctors write in reports may be starkly different. Some exams last just 2-3 minutes. A few years back there was a big hullaballoo when a lawyer had someone secretly record that exam to prove the point. The appellate courts ultimately said no dice, not without a court order. Notes only.

In a neuropsych exam nobody asks you to touch your toes. The point is to ask questions and get answers.

And so, because recording the exam needs a court order, lawyers (or their representatives) sit there and take those notes.

Full stop! The reason I’m writing this is that a doctor actually tried to claim, I shit you not, that the plaintiff’s representative couldn’t take notes about the questions. Only the answers.

Client showed up with lawyer for exam. Doc tells lawyer no note taking regarding the questions allowed because “it might violate copyright law.” Lawyer refuses to budge on the issue and doctor refuses to do exam.

Next stop, motion practice.

If the defendant were to win such an argument then it would be even more difficult than it is now to cross-examine the doctor at trial. After all, no notes. And the trial lawyer wasn’t in the room (or would likely be disqualified as also being a witness).

Justice Arlene Bluth, a trial court judge in New York County, made short work of that outrageous copyright argument.

“Because an IME is used solely for litigation purposes, the Court cannot limit the ability of plaintiff’s counsel (or a representative) to take notes in order to zealously represent his or her client.”

So what if the test is copyrighted? Use a different test, says the judge.

The doctor, the court also notes, had one other itty, bitty problem: The doc was merely speculating that it might be a copyright violation, having provided zero proof that it was. Not that it would have mattered, of course, as the court made clear.

And the idea that only the answers could be recorded and not the questions was equally dispensed with by the court. How, Justice Bluth wrote, would you actually enforce such a rule? The lawyers’ notes from such exams, after all, are privileged. Are our seriously understaffed courts now going to do tens of thousands of in camera reviews after these exams?

And that’s how copyright law managed to wangle its way into a personal injury case.

The case is here: Nieto-v.-CLDN Download