December 14th, 2008

The Bill of Rights and John Peter Zenger (Updated)

With Monday being Bill of Rights Day, it gives me a chance to write about a shopping plaza. Yeah, I know, that isn’t really the first thing to jump to your mind when discussing our rights. But as you can see from my photo, this particular shopping strip is called Bill of Rights Plaza, and it’s a couple miles from my home.

As it happens, Westchester County, just north of NYC for you out-of-towners, played a pretty big part in the creation of freedom of the press. It started with an election in 1733 on the village green in front of St. Paul’s Church in Eastchester. It seems that some folks wanted to vote, and others tried to stop them. Yes, I know that some things haven’t changed.

John Peter Zenger wrote about those voting irregularities, and in doing so was critical of the colonial governor. But since criticizing the British crown or its colonial puppets was not something to be tolerated, he was promptly arrested and put on trial for seditious libel. The truth of his writings was irrelevant under the law of seditious libel. To help insure a guilty verdict, the governor picked the judges.

Zenger’s defense — and the reason I write about it 275 years later — was novel; instead of contesting whether he he was guilty of the crime, he contested the law itself. Since what he wrote was true, he argued, he couldn’t be guilty of libel. The jury was asked to disregard the law, a concept we now call jury nullification. And the jury found Zenger not guilty.

From this one trial was born a concept that every member of the press (and every blogger, whether you think you are press or not) cherishes, for it now forms part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Whether our nation’s founders thought it would be a good idea to name a shopping plaza after the Bill of Rights is another story. But if it makes a child or two ask their parents about that sign, then it seems to be worth it.

Updated:
Marc Randazza at the Legal Satyricon has put up a sensational Blawg Review #190, dedicated to the Bill of Rights. He’s got commentary from around the legal blogosphere on all ten.

Frustrated Bronx Trial Judge Takes Aim at Appellate Court, Legislature And Attorneys Over No-Fault Law’s Serious Injury Standard

A clearly frustrated Bronx judge vented heavily in an opinion Monday on the vast waste of judicial resources that New York’s No-Fault law has wrought. Supreme Court Justice Paul Victor, trial judge in Vidal v. Maldonado, cited to legislative defects, inconsistent decisions from his superiors at the Appellate Division, First Department, and “cookie cutter” motion practice in implicitly urging legislative reform of the confusing law.

New York’s No-Fault law had originally been designed “to weed out frivolous claims and limit recovery to significant injuries.” In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault. (See New York’s No-Fault Law Problem With “Serious Injuries.”)

But instead, due to legislative failure to explain the terms it used in defining what constitutes a “serious injury” under the Insurance Law, it has become a morass of motion practice and inconsistent decisions. This results in “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

One part of the “serious injury” definition, for example, is that the injury results in “significant limitations of a body function or system,” while another definition is that the injury was a “consequential limitation of a body organ or member.” Justice Victor wrote of the legislature that “The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used,” and that with respect to the terms above “there appears to be no practical difference.”

Justice Victor has now seen enough, a fact that is evident in the first caption of his opinion: Another Frustrating Assembly Line “Serious Injury” Motion. He goes on to explain how so many of these motions are fought, from both the defendants and plaintiffs perspectives.

The judicial time spent is extraordinary, the judge pointed out. That is because

“a thorough review of the record and current appellate decisions requires a great expenditure of limited judicial time. In any event, the decision rendered is usually challenged and refuted by the losing side; and thus many (too many) of these cases are appealed , and many of those appeals result in non-unanimous (and sometimes acrimonious ) decisions which are often difficult to reconcile with prior precedent.”

He then goes on to discuss some of the precedent from the Court of Appeals, as well as the conflicting opinions of the Appellate Division, First Department, which reviews his decisions on appeal. And there seems to be little doubt they will be seeing this one.

One reason the appellate court is likely to see this is that Justice Victor explicitly rejected one of its opinions calling it “questionable and out of step with the more liberal guidelines provided by the Court of Appeals” with respect to how the law is to be applied. He did this while acknowledging that it is “a precedent which ordinarily would be absolutely binding on this Court.”

In his view, however, he had no choice in rejecting appellate case law. In a section of the opinion after the details of the case are explored — a section entitled Competing Statutes and Rules of Construction — “A Judicial Dilemna” — he says that due to conflicts, he must choose one or the other of how to approach the “difficult and frustrating” task of a judge weeding out frivolous claims or small cases, based solely on paper submissions.

According to the judge, “This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law.”

The decision is a must-read for any New York practitioner that deals with automobile cases and the “serious injury” threshold of our No-Fault insurance law. It is a terrific exposition on the confusing state of the law brought on by the legislature.

Links to this post:

A Serious Rant About the Permanent Consequential and Significant …
AUTO – SERIOUS INJURY THRESHOLD – INSURANCE LAW § 5102 Vidal v. Maldonado (Sup. Ct., Bronx Co., decided 12/8/2008) Okay, maybe “rant” is too harsh a term for the court’s critical exposition of the state of the common law on the “serious …

posted by Roy A. Mura @ December 29, 2008 9:07 AM

December 9th, 2008

Another Way Recession Affects Personal Injury Cases (Courthouse Closes Doors)

I’ve previously described how this particular recession may affect personal injury lawsuits, which are generally perceived to be recession proof given since folks get hurt regardless of how the economy is doing.

But problems in a severe one can come up be due to insurance companies going belly-up and forcing delays as the suits get managed by the State Liquidation Bureau. Or there can be problems financing the cases if credit lines dry up.

Now a third reason: Cash-strapped New Hampshire is suspending jury trials and leaving judgeships vacant.

December 8th, 2008

WSJ Law Blog Showing Bias Against Plaintiffs Firms in Dreier Case? (Updated)

New York litigator Marc Dreier was arrested by Canadian authorities for impersonation in an apparent scam to procure $50M. It also seems that tens of millions may be missing from the firm’s escrow account. I didn’t know anything about the 250-person Dreier firm, but the WSJ Law Blog referred to it’s firm founder and sole equity partner as “a prominent New York plaintiffs’ lawyer.” [Update: The reference to this being a plaintiff’s firm has now been removed from the story.]

Hmmm, a plaintiffs’ firm with 250 lawyers that I didn’t know anything about? I checked their website and found this, showing it to be one of the BigLaw firms:

Dreier LLP has grown to a firm of more than 250 attorneys, with its principal office at 499 Park Avenue in Manhattan, and additional offices in Los Angeles and Santa Monica, California; Albany, New York; Stamford, Connecticut; and Pittsburgh, Pennsylvania. The firm’s principal practice areas are commercial litigation, real estate, bankruptcy and corporate reorganization, employment law, corporate and securities, entertainment, sports law, intellectual property, including patent, trademark and copyright law, matrimonial law and tax.

The firm also has two affiliates within our offices which have specialized practices and are of counsel to the firm. Pitta & Dreier LLP specializes in labor law; and Pitta, Bishop, Del Giorno & Dreier LLP specializes in government relations. The firm is also affiliated with Dreier Stein Kahan Browne Woods George LLP which has its primary offices in Santa Monica, California and specializes in entertainment litigation and corporate transactions, as well as Dreier Sports Opportunities Group LLC, which is a sports marketing and consulting firm.

So why did the WSJ Law Blog decide to call it a “plaintiff’s” firm? There are plenty of crooked lawyer stories to go around — that will happen in a nation of a million lawyers — and I suspect the number of lawyers gone bad is probably equally weighted on both sides of the litigation aisle.

Was this just a cheap shot at plaintiff’s firms in general, which as a general practice are not favored by the business-oriented WSJ? Why magically turn a BigLaw firm into a “plaintiff’s” firm? Or is the firm description too vague to be depended upon?

P.S. — The whole story sound similar to my ear to the case of legendary car maker John DeLorean trafficking in cocaine to prop up his struggling car company. Short story theme: Big shot player gets in deep money trouble and panics to try to rescue the business by doing something monumentally stupid.

Linkworthy

Jeffrey Toobin has an article in the New Yorker on retiring Chief Judge Judith “Don’t call me Judge Judy” Kaye. Among the nuggets in the article, missing from my own piece on her retirement, was this gem on getting jurors to work together:

The jury room, with its dozing strangers awaiting the call to dispense justice, never fails to stir her soul. (Kaye always says “jury service,” not “jury duty.”) No detail is too small for her attention … the in-house magazine for jurors has a crossword puzzle but, per her directive, no answers. “I want the jurors to learn to work together by figuring it out,” she said

Coverage Counsel with a link to an up-dated FAQ from the NYS Department of Insurance on all the latest insurance issues;

David Giacalone of f/k/a fame on the History of Snowmen;

David Hyman has been doing a series of posts on medical malpractice caps at the Volokh Conspiracy. This is the first, with links to all others at the bottom of it;

Eric Dinnocenzo takes on a WSJ editorial on medical malpractice damage caps;

The ABA has a holiday card. With Claus Enterprises, Ltd. having a somewhat unique disclaimer;

TortsProf has the Personal Injury Law Round-Up, once again chock full of the latest stories of the week;

Blawg Review #189 is up by Colin Samuels at Infamy and Praise. If you were expecting a populist theme, say of the Alice’s Restaurant variety, forget it. Three-time Blawg Review of the Year winner Samuels takes to the high seas with the Rime of the Ancient Mariner.