February 15th, 2017

Trials, Trump and Betrayal

The feeling of betrayal is, perhaps, one of the most powerful of emotions. It comes up in law all the time, and now it comes up in politics with the Flynn-Russia scandal and Trump’s demonstration that making America great is not exactly his first priority.

Before getting to the significance in politics, a quickie look at how often it comes up in the law, always starting with the premise that two people trusted each other. Without trust, of course, there can be no betrayal.

Betrayal appears with regularity in matrimonial actions, in contract disputes between business partners, and in criminal law with snitches.

Betrayal, in the form of treason, is the only crime defined in our Constitution. Yeah, it’s that strong, since it goes to our own sense of morality.

From my practice area, betrayal probably forms the single most common reason that patients contact lawyers about potential medical malpractice actions. People entrust their lives and health to others, and those others don’t do what was expected of them.

That betrayal forms the basis of an anger that results in the phone being picked up to see how, if at all, someone can get their pound of flesh. And it’s the reason some doctors are counseled to say “I’m sorry” rather than covering up errors.

And because of this very human emotion, it comes up in literature with great frequency.

Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned. — William Cosgrove

Betrayal is the only truth that sticks. — William Miller

Though those that are betrayed Do feel the treason sharply, yet the traitor Stands in worse case of woe — William Shakespeare

And more, from John Lennon’s son Sean, since it cuts to the heart of what makes for a good story:

There are only really a few stories to tell in the end, and betrayal and the failure of love is one of those good stories to tell.

Since betrayal cuts to the soul, it’s a common theme among trial lawyers that, if used properly, can captivate an audience. It’s a story every judge and juror can relate to. If, at trial, it’s possible to show that one person betrayed the trust of another, you can be 100% certain that a competent trial lawyer will use that theme.

So now we turn to politics and Donald Trump, and bring those trial tactics to a different arena.

It is a given that those who despise Trump will never, ever be disappointed in him. Such people are incapable of being betrayed.

But what of those that believed in him? What of those that bought his hats and shouted his name? Are these not the only ones who can be disappointed, the only ones who can be betrayed?

As the weeks roll on, look to see this concept of betrayal used over and again in the political arena, with the Flynn-Russia scandal, and likely elsewhere. It is one thing for a voter to excuse the conduct of a politician by simply ignoring the boastfulness and hyperbole, but it is altogether different when the hyperbole is supported by conspiring with a foreign power.

Especially when this was the stance of the Trump-Pence administration on February 2nd during a CBS Face the Nation interview:

Look in the future for Trump opponents, be they Democrat or Republican, to pick up this theme, by going directly to Trump’s base of support.

Hell may have no greater fury like a Trump supporter scorned.

February 14th, 2017

Class Action Action, Here We Come…

Alison Frankel

We may be in for some serious action on the class action front, due to two big items:

First, legislation has been introduced in the House by Representative Bob Goodlatte that would eviscerate class action law suits. Those suits, started under Federal Rule of Civil Procedure 23 allow numerous people with small claims to group together to bring suit. Because one can’t realistically hire counsel to sue for getting screwed on a defective $10 widget, but if 1,000,000 people get screwed, justice has a good shot at being served.

Or, perhaps, if someone wants to create a phony university about selling real estate with phony promises, the class action is the way that the group can come together for justice against a grifter.

Make no mistake about it, the class action suit is a major factor in empowering the little guy to keep Big Business honest in consumer dealings, and I’m a big fan of them when used right.

As Alison Frankel points out in a Reuters column, however, those class actions are now under a new assault. With Republicans now controlling both houses of Congress and the White House, there is the potential for the courthouse doors to get slammed shut in the faces of consumers.

Since Frankel has already done a great job writing the story up, no need for me to do it again. Read it here.

Next up on the class action front is a potential showdown in the United States Supreme Court on how legal fees are calculated when class actions settle.

Prof. Josh Blackman

In Blackman v. Gascho, the court will face this issue regarding the computation of legal fees: Should a trial court look to the full value of the settlement, as if every person redeems a coupon that may be offered? Or should it be based on how many people actually redeem those coupons (if coupons are used). In other words, on a claims-made basis.

Regular readers know I have been down this path before having been screwed on a class action once. I then proceeded to hire Ted Frank to represent me as an objector, despite him being a tort “reformer.” As Scott Greenfield once pointed out, Frank had now become a plaintiff’s lawyer of sorts, by standing between members of the class and lawyers that he felt (in certain cases) had over-reached on the legal fee.

The issue arose when law professor Josh Blackman — who has been producing constitutional commentary regarding the Trump administration on his blog, twitter and cable shows like a fire hose going full blast — was a class member regarding a gym contract. The gym was sued and the matter settled.

But rather than simply mailing checks to the class members on a pro rata basis, postcards and emails were sent with directions on how to redeem the funds. This, Blackman argues, was designed to lower the actual payout to class members with a low response rate, and thereby give a disproportionate share of the recovery to the lawyers.

While the gym argued that the entire class settlement was $15.5M, thus justifying a $2.39M award of costs and fees, Blackman and Frank contend that they anticipate less than 10% response, and that therefore the funds were paid disproportionately to lawyers instead of class members.

The case is set to be conferenced by the Supreme Court this coming Friday, February 17th, to decide if cert should be granted.

If cert is granted, and the Goodlatte bill moves forward, expect class action discussions to come to the forefront of legal discussion.

February 8th, 2017

Melania Trump’s Lawyers Screw The Pooch

Before getting into the latest Trump lawsuit — this one by Melania Trump for defamation, filed in my local courthouse — I want to get one thing out of the way. I think that the families of politicians are off–limits for commentary and ridicule except in limited circumstances.

One of those circumstances is an active engagement in politics. Thus, Eleanor Roosevelt and Hillary Clinton were both fair game, but First Ladies Barbara and Laura Bush, and Michelle Obama were not.

Children are likewise off-limits, unless engaged in politics. Thus, Eric Trump, Donald, Jr., and Ivanka are all fair game, while Tiffany and Baron are not.

This is the reason that Rush Limbaugh and John McCain were both mercilessly skewered for picking on the child of a president. It is vulgar and completely beyond all sense of decency. While they had the constitutional right to conduct themselves that way, others had the right to flay them for having done it.

But yesterday Melania lost that protection with her claims in a defamation case. The nuts and bolts of the claim is that some blogger claimed she was an escort while also being a model, and she says that was false and defamatory. She sued the blogger and a website, Mail Online.

So far, no problem from me. If the claims are utterly false, have at it.

But her lawyers threw her under the bus with claims that she lost “multimillion dollar business relationships” during the years in which she would be “one of the most photographed women in the world.” This would be a “once-in-a-lifetime opportunity, as an extremely famous and well-known person.”

What the hell? She’s complaining about not being able to use the White House for profit?

She, and the family, were ripped by the New York Times (and many others) yesterday in an editorial:

But any veneer of plausible deniability about the Trump family’s greed and their transactional view of the most powerful job in the world was shattered this week by a defamation lawsuit the first lady, Melania Trump, filed….

There is no benign way to look at that claim. Mrs. Trump evidently believes her new title affords her a chance to rake in millions of dollars.

Here’s the kicker: It is wholly unnecessary to make such comments when filing a complaint in New York. A general claim of losses will suffice. The details will come later in a document called a bill of particulars, and even there, such hyperbolic language is not needed.

If the objective was to garner press with the suit, well they succeeded. Beyond, perhaps, their wildest nightmares. They have placed their client’s name on an exceptionally damaging document describing her desire for White House profiteering.

The lawyers also did something else very Trumpian: They made outrageous demands for damages, of $300,000,000. Yup, you read that right.

And, as regular readers of this blog know, you aren’t even allowed to make monetary demands in a complaint in personal injury suits in New York. It is specifically outlawed, and is sanctionable. (And yes, defamation is a type of personal injury suit.)

The geniuses who did this to Melania?

The one pulling the strings is Charles Harder from Beverly Hills, who has experience in high-profile defamation cases. And he should have known better than to impugn his own client.

On the New York side as local counsel is Mark Rosenberg of Tarter Krinsky & Drogin. According to his bio, these are his practice areas:

China Desk
Hospitality and Restaurant Services
Intellectual Property
Retail

Seriously? They couldn’t find local counsel who knew how to craft a simple defamation complaint in state court (which does not require the level of detail that federal court does), without negligently killing their own client in the process?

The job of local counsel is to make sure that the out-of-state-guy doesn’t screw the pooch on rules of procedure. And here, the rules of procedure were clear: It was unnecessary (and damaging) to have Melania confess her true motives of using the White House for profit, and unnecessary to potentially subject her to sanctions for an impermissible ad damnum clause.

The Trump v. Mail Media filing is here.

P.S. Making a claim for legal fees at the end was also dumb, as they are not permitted. It shows one of two things: The lawyer is ignorant or the lawyer is copying from a form without actually reading and comprehending it.

February 3rd, 2017

Trump’s Hair and his Doctor (And a HIPAA violation?)

Surfing through Trump’s hair.

The New York Times ran a story yesterday about Donald Trump’s long time doctor, Harold Bornstein, and his disclosure that his ridiculous hair is maintained with the male pattern baldness drug Propecia.

President Trump takes medication for three ailments, including a prostate-related drug to promote hair growth, Mr. Trump’s longtime physician, Dr. Harold N. Bornstein, said in a series of recent interviews.

Hair! Trump! What fun! Right? And as a bonus, the drug is also linked to occasional, detrimental, sexual side effects. Trump! And Sex! It sells!

But just one little bitty problem. It appears from the article that the good Dr. Bernstein might not have had permission to disclose. Oops.

Bornstein, it seems, has been Trump’s doctor since 1980, giving him a wealth of very personal, and very private, information. But no contact lately.

Well, if doctor and patient didn’t have contact, how could he get permission to divulge information that is very clearly protected by the patient-doctor privilege? From the article:

[Bornstein] said that he had had no contact with Mr. Trump since he became president, and that no one from Mr. Trump’s White House staff had asked for copies of the medical records that he has kept for the last 36 years, or called to discuss them.

And then there is this, supporting the idea that Bornstein didn’t have permission to open his yapper to the press:

At times in the interviews, Dr. Bornstein was moody, ranging from saying that Mr. Trump’s health “is none of your business” to later volunteering facts.

Well, that’s not good, is it?

Privacy is the bedrock of the relationship, for if patients can’t have confidence in the confidentiality of what is said, they may omit things that turn out to be detrimental to their health. And that is bad. Bad. Bad. Bad.

From the Merck Manual, in an overview on the subject:

All people are entitled to confidentiality unless they give permission for disclosure or they clearly can no longer express a preference (for example, if they are severely confused or comatose). A federal law called the Health Insurance Portability and Accountability Act (HIPAA―Health Information Privacy) applies to most health care practitioners and its regulation, known as the Privacy Rule, sets detailed rules regarding privacy, access, and disclosure of information.

Ahh, the Privacy Rule. And here is all you want to know about it.

And a doctor could face criminal penalties, if the government was so inclined, and could likely face action against his license.

If Trump is pissed — and he’s always pissed at something — he could theoretically make a complaint to Health and Human Services and ask for enforcement. And HHS could, in turn, refer the matter to the Department of Justice.

Would HHS and DOJ say no to the boss?

January 23rd, 2017

Sean Spicer and the Ill-Fitting Suit (Updated)

Did Sean Spicer deliberately wear an ill-fitting suit?

Lawyers need to know a smidgen about fashion if we don’t want to look like fools before clients, courts and juries, which is why I’m bringing my limited sartorial skills to today’s post.

Many people across the country looked at Sean Spicer in his debut appearance as presidential spokesman, and the lies he was forced to spew about the size of the crowds for the inaugural Friday and the massive protests on Saturday, and then proceeded to…mock his ill-fitting suit.

He can see a picture of the slob. Many folks on the interwebs had fun with it. There is already a Go Fund Me page to Buy Sean Spicer A Suit That Fits that has been shared, currently, more than 6,000 times on Facebook. A couple of SeanSpicerSuit Twitter accounts have also appeared.

Daniel Politi at Slate snarked, for example:

“Some members of the media were engaged in deliberately false reporting,” Spicer said as he was gradually swallowed by his suit.

And my buddy Scott Greenfield, a lawyer fashionista, writes at Simple Justice:

According to respectable journalists, President Trump’s press secretary, Sean Spicer, beclowned himself already. Not by the ill-fitting suit he wore, but by declaring that the inauguration drew the “”largest audience to ever witness an inauguration, period.”

But perhaps we should rethink this?

Would somebody, in one of the most high-profile jobs on the planet — appearing for the first time before the international media in his new role in the White House — deliberately dress down?

And then I thought of some mocking Trump for taking the oath of office without the decency of buttoning his jacket. Except that he is hardly ever seen with a buttoned jacket (see for example, this photo of Republican nominees).

Are these slips of sartorial splendor connected?

This brought my mind back to an incident many years ago when I was trying a case in the Bronx. Opposing counsel came in each day with the points of his shirt collar haphazardly upturned. I finally pointed this out to him. Oh, he said, he knows. It was purposeful.

He didn’t want to look like The Insurance Company Lawyer in front of a Bronx jury, few of whom wear suits for anything other than a funeral.

Many in the media have commented on the fashion style of Michelle Obama, as well as that of Hillary Clinton and her pants suits, so I’m going to take first crack (I think) at the fashion style of the new administration (because how you present yourself, be it in law or politics, matters).

Here’s my Trump Administration fashion theory: You don’t wear Brooks Brothers to storm the castle. The mob behind the screaming populist with the billowing jowls, carrying pitchforks and torches, do not wear fine suits. The mob wants to destroy. The mob laughs at those who mock an ill-fitting suit.

To test my theory, I looked up images of Sean Spicer. And, unsurprisingly, I found photo after photo of him showing fine fashion sense in well-tailored* clothes. Ask yourself if this looks like a man who would inadvertently wear an overly large slob suit on his first day as presidential press secretary:

I think the ill-fitting suit that looked like it came from the wrong rack of a second-hand store was no accident. There’s an image-maker someplace advising on how to deliberately downgrade appearances, and I think we’ll see much more of it.

As for me, when I speak in front of a jury, I would never wear french cuffs. Or a bow tie. Or braces. Or a pocket square. Or funky socks. I try to be boring. But that’s just me, as I dress for the point I am trying to make — my point being that I don’t want my clothes to distract my jurors.

And when my clients appear before a jury, I don’t tell them to wear a suit if the only suit they own is the one they wear for special occasions, meaning funerals. I advise them to wear their church clothes, so they are comfortable and that neck tie doesn’t cause them to squirm.

I don’t think the Spicer/Trump clothing issues are an accident as they appeal to the mob, and we’ll see in the coming months whether my theory holds.

For now, though, be wary of quickly jumping all over the suit(s) that Spicer elects to wear. It’s quite possible that it’s all a very deliberate appeal to his base. And that we are being trolled.

Addendum, 1/23/17:

Fact: Sean Spicer’s Suit is Bad (GQ Magazine)

Sean Spicer Must Be Taking His Suit Advice from Donald Trump (Racked)

*Addendum, 1/25/17: OK, my theory might be for the birds. As pointed out to me elsewhere, one of the “well-tailored” suits (the one with the lavender tie) isn’t exactly well-tailored. And, stories have come out that Trump was pissed at the way Spicer was dressed. So, while I tried to give him the benefit of the doubt by postulating it was part of a grander theory that you don’t storm the castle wearing Brooks Brothers, it seems I blew this one. Some more:

Trump is obsessed with what his staff wears. Don’t let their costumes distract you. (WashPo – Robin Givhan)

Trump reportedly wants to fire Sean Spicer because he doesn’t like the way he dresses (Death and Taxes)

Did Sean Spicer Get a Trump-Approved Makeover? (Hollywood Reporter)