December 29th, 2018

Google Maps Comes to New York – and other legislative stuff

People love to yell and scream about those damn politicians, don’t they? Well, since fair is fair they should get a solid pat on the back for getting stuff right, shouldn’t they?

New York’s Gov. Andrew Cuomo signed a bill Friday that allows satellite-mapping services, such as Google Maps, to be admitted into evidence at trial. It was passed in the waning days of the last legislative session ending in June, and Cuomo just inked it. (Part of CPLR 4511)

I know, that’s a little thing, isn’t it? Especially since federal courts are already doing it.

But it’s one of those little things that oils the wheels of justice so that they creak along just a little bit more efficiently.

The bill summary is here:

“Allows judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption.”

And, of course, there isn’t anything even remotely partisan about it. It just makes it a little bit easier to move things along when you stand in the well of the courtroom.

Last year, for those that remember back that far, there had been several new laws regarding civil justice that improved things in New York, including a terrific change in Supplementary Uninsured/Underinsured Motorist (SUM) insurance, a change in the statute of limitations in medical malpractice cases to add a date of discovery rule for cancer cases, and a modest change in the venue law.

With the both legislative houses now in the hands of one party due to the Blue Wave that swept the country as backlash to Trump there is the opportunity for more progress (and yes, more mischief).

Maybe we will finally see the Grieving Families Act pass for the families of wrongful death victims?

Perhaps we can finally stop the judicially-created law that allows defense lawyers to interview a plaintiff’s doctors — off the record and without plaintiff’s counsel even being notified.

Maybe we will see some anti-SLAPP legislation?

(Hey, maybe, maybe we will even see my pet project, Eric’s Law, move forward to wipe out some of the last vestiges of the idiotic ad damnum clause?)

I’ll be watching, as the coming session has the opportunity to be one of he most significant in many, many years.

December 20th, 2018

Trump and the Presidential Veto

[Cross-posted from Above the Law]

On Thursday morning Donald Trump threatened to veto all legislation over his wall. No such Trump veto will happen. Ever. On any bill.

I don’t get into the realm of political punditry often as it’s not what I do — I usually confine political comments to those issues that deal with tort “reform” — but today we make an exception because this goes, in essence, to all bills sent to the president.

We start this short analysis with the observation that Trump hasn’t vetoed a single bill. He’s the first president since James Garfield to act that way, and Garfield was only in office six and a half months before being shot dead.

Before that was Millard Fillmore who left office in 1853, who also served a partial term as he took office upon the death of Zachary Taylor. Taylor didn’t veto anything, but was in office only 16 months. Before that was William Henry Harrison, who died a month into office.

The last president to go a full term without a veto? John Quincy Adams, our sixth president who left office in 1829.

And a few more simple observations: First, Trump loves signing things and makes a big show of displaying his signature, even for executive orders.

Second, he campaigned as a “deal maker.” It matters not one whit if you agree or not, or think he’s good or not. This is the persona he wants the world to believe.

And now, with the House of Representative turning to Democratic control, any bill that passes both the House and Senate that is in any way contentious will be the result of bipartisan compromise. A deal.

So if Congress passes a bill — even one that’s a complete anathema to his other policies — he will sign it and claim “credit.” Even if he had nothing to do with its negotiation.

Envision, for a moment, a bipartisan compromise bill on immigration. Imagine it chock full of things Trump claims to hate and campaigned against.

Will he sign it? No, the contents of the bill don’t matter. Because more important than the contents is that he would be able to claim “credit” for something, even if he campaigned against it. ‘Look at me, the deal maker.’

Will Trump supporters have a feeling of betrayal — one of the most powerful human emotions? Possibly. But that’s a column for another day. Trump’s first instinct has always been to look inward as to what was good for him today.

Why write about this now? Because every so often you will see Republican Senators claim that they won’t pass a bill because the president won’t sign it. Don’t believe it. It’s a diversion.

Trump will sign anything.

December 18th, 2018

A Lawyer Falls on His Sword

You don’t see me writing about criminal law here for good reason — it’s not what I do. But something happened during the sentencing hearing for General Michael Flynn today that deserves mention.

As many know, he was showing up to be sentenced for lying to the FBI about his contacts with Russians and with regard to statements he made about his involvement as an agent for Turkey. Given that he was Trump’s National Security Advisor, and he was compromised, this was obviously a big thing.

But during the sentencing, press reports were that Judge Emmet G. Sullivan was, shall, we say, a bit irritated. To say the least. He called Flynn’s conduct “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. At one point he asked prosecutors if they had considered charging him with treason.

A small part of that anger may have been due to the fact that, prior to the sentence, Flynn’s lawyers suggested he might have been set up, or duped, by the FBI.

And this is the reason that I write on this subject — because it has nothing to do with criminal law but about the relationship between attorneys and clients in general:

At the hearing, Judge Sullivan brought the subject up, making sure that Flynn distanced himself from the comments of his lawyers and fully acknowledged that he knew he wasn’t supposed to be lying to the FBI, even if they didn’t tell him he was the subject of an investigation.

Who’s idea was it to vacillate a bit on the reason Flynn got busted? to suggest that, perhaps, he was somehow entrapped? Lawyer or client? Beats me. But at the hearing it didn’t matter to the lawyer.

At the hearing, to spare his client, Flynn attorney Rob Kelner said his client shouldn’t be punished for the conduct of his attorneys. He fell on his sword; he threw himself under the bus; he bit the bullet. No matter the metaphor you choose, the lawyer owned the problem and told the court the bucks stops with him.

Because that’s what a good lawyer is supposed to do.

December 11th, 2018

Defending Al Sharpton’s Daughter

On the one hand, I hate to refer to Al Sharpton’s daughter, Dominique Sharpton, as “Sharpton’s Daughter” as she has an identity all her own. We all do.

On the other hand, nobody would be writing about her $95K settlement for her trip and fall case if her name was Jane Jones. The headlines below occurred because she is not only the daughter of someone famous, but a famous person many love to pillory. You’ll notice that it is Papa Sharpton whose name appears in the headlines.

This trip and fall occurred on New York City streets, and it was the City that was the defendant.

I saw the headline in the Post first, then looked around to see what others were writing. Here are a few:

Al Sharpton’s daughter gets $95K settlement for sprained ankle (NY Post)

Al Sharpton’s Daughter Bags $95,000 Settlement for Sprained Ankle (Breitbart)

Al Sharpton’s Daughter Sprains Ankle ‘Real Bad’ On NYC Street, Scores $95,000 In Settlement (Sarah Palin)

Then a few tweets about that sprained ankle. You can find plenty, but this is a sample from “Sheriff” David Clarke:

Now I smelled something about the headlines. And that’s because I’ve litigated plenty against the City of New York and know that it doesn’t give up the taxpayer coin easily. And if the City could make a point by knocking down a high-ish profile case, it would.

So I logged into the court system and pulled up a document to see about that “sprained ankle.” It took all of two minutes to find what I needed. Here’s a bill of particulars that outlines the injuries.

DominiqueSharpton-Bill of Particulars Download

It turns out that the “sprained ankle” was actually ankle surgery (along with a number of torn tendons and ligaments). Now I know that confusing a sprain with surgery isn’t the kind of mistake that I would make, or any of my readers would make, or any family, friend, or random stranger would make.

To make that “mistake” one needs an agenda to distort the news. The Post story had a single line about the surgery buried in the story, but oddly omitted that from the headline.

Neither Breitbart nor Palin — who picked up the story from the local source that being the NY Post — could be bothered with mentioning the surgery. A 95K settlement over a sprained ankle is far more likely to generate outrage and clicks than a story where ankle surgery was needed. Surgery, you might rightly guess, didn’t fit their agenda.

This was not a one-off error for the NY Post, by the way. I covered this case back in 2015 when the Post ran a headline about Kid Sharpton missing a court conference for this matter — a conference that no client ever, ever goes to. It’s a scheduling conference that the lawyers handle. Yet there was the yellow journalism headline, trying to make something out of, quite literally, nothing.

And both stories were written by their regular courthouse reporter Julia Marsh, who certainly knows better after handling the beat for so many years. It’s not like she doesn’t know how to pull documents off the easy-to-use New York State electronic filing system.

This was, near as I can tell, a run-of-the-mill case of the City of New York neglecting its streets and someone inevitably getting hurt while crossing one. When you’re looking out for cars, pedestrians, dogs, bikes, scooters and other distractions, both dynamic and static, it’s easy to miss a pothole. The nature of the distractions may well affect the way a jury apportions liability between plaintiff and defendant.

This 90-second video, for instance, helps to show how a very small, but unexpected, defect will cause huge numbers of people to trip.

To settle this case, as with any other, the City would have done a simple analysis trying to figure out the “value” of the injuries, factored in the extent of their defect and adjusted downward for the plaintiff sharing part of the blame. They would also factor in how a plaintiff appeared — was she a nun or a convicted criminal? And they might, as they no doubt did here, adjust further downward if the plaintiff said dumb things on social media.

The only thing noteworthy to the suit was that some tabloids could figure out a way to create outrage by distorting what happened.

December 10th, 2018

When you don’t have the facts…

Most folks are familiar with the old Carl Sandburg quote, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

There’s much truth to that, because if we have something important to say on facts or law, any competent lawyer will put that up front.

This idea came home to roost on Friday when Rudy Giuliani spoke on behalf of Donald Trump. Or at least he tweeted, which apparently is good enough for legal representation these days.

The tweet came on the heels of Trump claiming he answered the questions of Special Prosecutor Robert Muller “very easily.“

But Giuliani went off message as he completely contradicted his client, saying: “Answering those questions was a nightmare. It took him about three weeks to do what would normally take two days.”

So what to do? Well, this is where the Sandburg quote comes in…notice how this Giuliani tweet is utterly devoid of facts and law on the issue at hand…

Some in the media are distorting my statement that answering the questions was a nightmare. That is because as President he was interrupted so often with critical and more important matters. It illustrates why Mueller should end this now and media should be fair.

Giuliani starts in one place, trying to reconcile his comment with his client’s. But then goes wildly off course, in the space of one measly tweet, and Mr. Law and Order asks for immunity.

Now lawyers see similar stuff all the time in legal arguments. Lawyer 1 says the evidence shows red light, and Lawyer 2 argues that his client’s pants are purple.

Lawyers aren’t fooled. We know distraction when we see it, and the job of Lawyer 1 is to make sure that the judge sees that Lawyer 2 never addressed the issue. The only thing the purple pants arguing lawyer did was destroy his own credibility on the next issue, whatever the next issue may be.

Here, the issue was whether Trump was answering the questions and Giuliani simply makes an argument that presidents are busy, so Mueller should stop asking questions.

The nonsense from Giuliani didn’t stop there, however, as he continued with another inane tweet of defense, this time to the campaign finance laws he appears to have broken. The best Giuliani could do was claim that because John Edwards wasn’t convicted for a payment to cover up an affair/child, that Trump is innocent.

It’s as if Giuliani said that because one bank robbery defendant was found not guilty all must be. As if all factual scenarios are the same. Here’s the humdinger of a tweet:

The President is not implicated in campaign finance violations because based on Edwards case and others the payments are not campaign contributions. No responsible prosecutor would premise a criminal case on a questionable interpretation of the law.

Sometimes, the things to look for are not the distortion of facts in a case but the distractions of opposing counsel. Trump does this all the time, of course. You can ask him about campaign contribution violations and he’ll answer something having to do with Hillary Clinton.

But when lawyers do it, it really brings home the point that there’s trouble in the house and the lawyers don’t have the tools to deal with it.