October 13th, 2016

The Spitballer and The Know-It-All

Hillary Clinton as a kid (actual photograph, previously unreleased)

As some of you have noticed, this election isn’t about politics. It’s about two kids from middle school that we all knew.

The bookworm sat in the front row, did her homework on time and all the time, and raised her hand to answer every damn question.

The other kid never did his homework and sat in the back of the classroom firing spitballs at the front row.

The know-it-all, goody two-shoes, bookworm spent time after school helping others.

Donald Trump as a kid, previously unreleased photograph

The spitballer spent time stealing lunch money and pushing kids on the playground.

The know-it-all took advanced placement classes when she got to high school.

The spitballer went to reform school.

Fast forward roughly 55 years. The know-it-all is a policy wonk whose idea of fun is to spend Saturday nights reading briefing books on Syrian history. The spitballer is an entertainer who likes to spend his Saturday nights assaulting women.

Both kids now want to be President. Both kids claim they are good decision-makers.

Here’s the thing about making presidential decisions: They are all difficult, or they wouldn’t be on the President’s desk. And no, pardoning turkeys at Thanksgiving for crimes they didn’t commit doesn’t count as a decision.

The President is forced to decide between one option that is awful and one that is worse, and needs the wisdom to figure out which is which, and understand that there are still a thousand shades of gray between the two.

Decisions like this: Trying to solve the 10-sided Rubik’s Cube of Syria that involves Assad, ISIS, “moderate” rebels, Iraq, Iran, Turkey, Kurds, Saudi Arabia, the U.S. and Russia.

Or trying to prevent war in the South China Sea over an area claimed by multiple nations, one of whom happens to be nuclear armed China.

We know that one is cool under intense pressure. The other wakes up at 3 am to pick fights with former beauty queens.

Who do you trust to make those decisions? The spitball kid or the know-it-all?

Here’s the thing: Even the know-it-all is going to screw it up some times due to the enormous complexities of the situations and the unknowables. If presidents get it “right” 75% of the time, I figure they’re doing pretty damn good.

And then Presidents have to deal with their failures, by analyzing the actual facts of a situation, to the best they can actually be ascertained in real time, and changing course if necessary. That means acknowledging an initial error. In other words, it’s not just tactics, it’s an issue of ego.

So there are really two issues here:

Who is more likely to make the right initial call in a complex situation?
Who is more likely to acknowledge error, own that error, and make the adjustment?

I don’t usually use this blog to discuss politics, unless it involves tort “reform,” but this issue is too big to ignore.

I don’t know about you folks, but I’ll take that bookish kid in the front row with her hand up every time, whether I like her or not. She may not get it right all the time when the problems are so complex the teacher doesn’t know the answer, but she sure as hell will have a better batting average than the spitball kid.

Given that this will involve war and peace and actual dead bodies, this kinda matters.

September 20th, 2016

Chasing the Hearse (Updated)

Romauld “Ron” Mioduszewski. Photo from Century 21 Supreme Realty website.

Way back when, I remember hearing dark humor about how to find an available apartment in NYC: You check the obituaries.

And in The Verdict, Paul Newman’s character does a similar thing — he shows up at a funeral to offer his attorney services to the widow.

And now, courtesy of a Century 21 Supreme Realty real estate agent, we get actual documentation of this in practice. For reals.

Back in June, Michael Popper of Plainfield, NJ had a horrible kayaking accident that cost him and his guide their lives when a front came in followed by waves that capsized them. His wife Jennifer, now a widow, was involved in the same accident and clung to her kayak for hours in the 52 degree water before rescue.

It’s the stuff of nightmares.

But Century 21 Supreme Realty agent Romauld “Ron” Mioduszewski, (link) of Cranford, NJ, decided this was a good financial opportunity. For him. So he sent Jennifer Popper a letter, starting with faux-condolences, followed by a pitch for his business.

If this was a one-off type of event, I might not bother to write about it, as it does stray from my legal wheelhouse. But this could not have been an isolated letter.

And the reason I think it wasn’t an isolated letter is because it was a fill-in-the-blanks form letter. And Mioduszewski didn’t bother to fill in the blanks.

That’s right, adding insult to tragedy, he dropped in the mail a letter that started like this, with my notes in brackets:

Dear Jennifer:

I would like to start this letter by offering my sincere condolences on your recent loss of [name not filled in] . Losing a loved one can be a very difficult and stressful time. This letter can be compounded when you start to receive numerous letters from investors looking to purchase the property, located at [address not filled in] and you are unsure as to what options are available to you. Having experienced this situation myself, I can sympathize with what you are going through. The main point of this letter is to make you aware that.

[Sales pitch follows]

That’s right, he didn’t even fill in the name of her husband for his “sincere” condolences. He blamed others for the “numerous letters from investors” of which he was actually trying to be one. And he claimed to have “experienced this situation myself,” but it is beyond belief that any human who had experienced such trauma could actually send such a letter.

Jennifer posted the letter on Facebook, and then responded yesterday on the Facebook page for that realty office:

Dear “Ron” Mioduszewski – I’d like to start this Facebook post by saying you’re no better than the investors of whom you claim to warn me. By the way, you could have easily found out the name of the person you were offering condolences about instead of writing absolutely no name at all. Pathetic.

The questions to ask here are:

How many such letters did he send?
Who drafted it?
Was this an office-wide practice?
Is this typical of the Century 21 business?

I reached out to Mioduszewski for comment but he wasn’t available. If he responds, I’ll update. (Updated now, below letter)

But inquiring minds want to know the answers. The letter, is here, in all its wretched ugliness:

Updated: Mioduszewski called me back. He said he created this form months ago and uses it “on all my probate matters,” sending it twice to each home. He said he didn’t know how many times he had sent it out, and that he was the only one in the office that used it.

Mioduszewski also told me that the letter going out this was was a “computer glitch.”

He defended the use of the letter, saying that this was a service he provides. When asked how he would have felt if he had been in a similar situation and received it, he said that, “being a real estate agent, I would have just blown it off.”

He said nothing about having “experienced this situation myself,” as he claimed in his letter.

August 25th, 2016

Starbucks Iced Coffee Suit is (Shocker!) Dismissed

Bad lawsuits would be a bee in my bonnet, if I wore bonnets. And that is because bad lawsuits injure good lawsuits.

The bone-headed suit makes news because it is an outlier, but then because it is in the news, helps to form negative opinions about lawyers and lawsuits that negatively effect the perfectly reasonable legal action by tainting the jury pool.

And that was my opinion back in May when suit was brought against Starbucks because there was too much ice in the iced coffee, thereby (so the claim went) leaving the consumer with less coffee than he paid for.

My response at the time was a parody post, wherein Dunkin’ Donuts was sued for not enough jelly in its jelly donuts, and it contained one of my favorite paragraphs:

The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

In my follow-up post, I’d written how easy it is to “have it your way” and simply ask for less ice.

And now, as expected, the iced coffee lawsuit has been tossed out. (Decision – Forouzesh v. Starbucks) For the same reason that I wrote. And for that matter, the same reason that countless others no doubt had written. Even a child knows you can ask for less ice:

But as young children learn, they can increase the amount of beverage they receive if they order “no ice.” If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.

This conclusion is supported by the fact that the cups Starbucks uses for its Cold Drinks, as shown in the Complaint, are clear, and therefore make it easy to see that the drink consists of a combination of liquid and ice.

As I (and countless others) had indicated, an iced drink contains ice as an obvious ingredient. The court (shocker!) concurs on the obviousness of it all:

When a reasonable consumer walks into a Starbucks and orders a Grande iced tea, that consumer knows the size of the cup that drink will be served in and that a portion of the drink will consist of ice.

Case dismissed.

The problem with bad suits is that they form public opinion based on anecdotes, not empirical evidence. Empirical evidence can be boring. But an idiotic suit — even if it is one in ten thousand — sells papers.

Updated with posts from elsewhere:

No, You Can’t Sue Starbucks For Putting Too Much Ice In Your Drink, Judge Rules (LAist, including interview with the litigant.)

Class action: too much ice in Starbucks iced drinks (Overlawyered, earlier)

August 23rd, 2016

Should Trump’s Doctor Be Sanctioned for Fraud?

Dr. Harold Bornstein

With the health of the two presidential candidates, aged 68 and 70, in the news, it’s worth revisiting the statement given out by Donald Trump’s gastroenterologist, Dr. Harold Bornstein. You may remember this from last December for its comical and very Trumpian statement:

“If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency” (Full letter)

Yeah, that Harold Bornstein. Dr. Jen Gunter did a full, line-by-line, deconstruction of the letter at the Huffington Post: I’m A Doctor. Here’s What I Find Most Concerning About Trump’s Medical Letter.

Well, it turns out the letter was even worse than Dr. Gunter thought. And that is because of the signature block, where Dr. Bornstein signs his name with “F.A.C.G.”

That stands for Fellow of the American College of Gastroenterologists. In order to be a Fellow, one must be board certified and pay your dues to the organization. And being board certified is a very big thing for doctors, since it entails taking a grueling test to show that you have the knowledge to be an expert in your field.

The gastroenterology boards are a subspecialty of internal medicine.

But as Rachel Madow learned, after being tipped by one of her viewers, that membership in ACG actually lapsed in 1995 — 21 years ago. And according to the American College of Gastroenterologists, he shouldn’t be claiming he is a member of the organization if he is no longer a dues paying member of the organization.

Yet Dr. Bornstein continues to use those initials after his name.

Dr. Bornstein, incredibly, responded to Madow’s request for comment and said that:

F.A.C.G. is a title that they sell for a fee; in reality it has no value.

He then went on to explain to Madow that he would continue to use this title that “has no value.”

Now that I have given you the past, let me stand on the shoulders of Gunter and Madow to go further with some facts and opinion: What he is doing is fraud.

The website for the New York State Department of Health, gives examples of medical fraud:

Examples of Medical Fraud

False and intentionally misleading statements to patients.
Submitting false bills or claims for service.
Falsifying medical records or reports.
Lying about credentials or qualifications.
Unnecessary medical treatment or drug prescription.

You can see the one that I highlighted. I posted all of the ones listed so that you can see the significance of the infraction. Not significant to me as someone tossing around opinions, but to the Department of Health.

Is this something that the Department’s Office of Professional Medical Conduct (OPMC) should be investigating? Maybe.

I called Douglas M. Nadjari for an opinion, he being an attorney who represents physicians primarily involving matters of professional misconduct before the Office of Professional Medical Conduct and the Office of Professional Discipline.

While not discussing Bornstein/Trump in particular, since he doesn’t have knowledge of the facts, he said that investigation and charges of professional misconduct could theoretically be pursued regarding a physician with a false credential for:

False advertising; and
Practicing the profession fraudulently
Lack of moral fitness

If the doctor were indeed board certified, OPMC would not pursue discipline unless it received a complaint or if a patient was injured. If one of those two things happened, he would likely be asked to consent to an interview and be asked to change his ways.

The kicker for me, though is that he apparently already knows what he is doing is wrong. And has refused to change it.

August 2nd, 2016

Trump and Lawyers and Privilege, oh my! (Updated)

Thomas M. Wells, photo from his law firm website

I’ve said before that Donald Trump is a one-man bar exam, as his candidacy seems to touch on roughly six bazillion different issues. One could easily create a law blog devoted solely to the legal issues he is involved with that come up on a daily basis — from matrimonial, to contracts, to fraud, to defamation, to torture and war crimes and more.

But today, just for kicks, I’ll tell you how he may have been inappropriately slimed. Beating up on Trump, you see, is easy pickings. But defending him from inappropriate conduct? You be the judge.

We turn, now to one of his former lawyers, and since Trump has been involved in 3,500 lawsuits, in addition to godknowshowmany banking and licensing deals, there are many of them around.

This one is about Thomas M. Wells, who was hired by Trump for a New Jersey real estate deal regarding a mall.

On July 31st, he published a nice, juicy article in the Huffington Post with this headline:

Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.

Wah? Inside scoop? Let’s read!

This was the basic background where Wells establishes his credentials to write with authority:

In 1987, when I was 35 years old and he was 41, Donald Trump hired me to be his attorney on a major northern New Jersey project, a shopping center, which like everything else, was to bear his name, Trump Centre. It was a big deal that he picked me and a high honor for me just a couple of years after I started my law firm, which is now over 30 years old. This was at a time when Trump still built things, having recently finished Trump Tower.

OK, he was one of the lawyers. But what kind of information can he possibly spill if he was Trump’s lawyer? There is, after all, the subject of client-attorney privilege.

Well, off the bat, Wells gets right to it, giving personal stories to lede into the rest of the piece. (The rest of the piece appears to be based on public information.)

First, there is this bit about bad deals, which is odd since Wells was helping him with a deal:

He seemed to me smart, business savvy, decisive. He had a very impressive office, a fancy and very big boat, an airline, a helicopter shuttle and several casinos. Within a few years, virtually all of this would be lost because of bad business decisions.

Second is this piece about Trump claiming that women wanted him:

After the initial interview, my client contact with Donald was actually not very much. One low point I do remember (actually will never forget) is a limousine ride to a meeting with the editorial board of a New Jersey newspaper in which my married client sought to regale me with the number and quality of eligible young women who in his words “want me.” I was just plain shocked and embarrassed, but I kept smiling. I wanted and needed this client happy.

And third, Wells takes on Trump’s well-known braggadocio and lust for publicity in discussing the size of his apartment and the varying press stories on just how big it is:

While I was working for Donald, various press reports had Trump and his then-wife Ivanna living in a personal apartment in the Trump Tower of 8, 16 and even 20 or 30 rooms. Genuinely curious, I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”

Zing! The story confirms your bias against Trump, leaving you wanting to read the rest of the piece for any other juicy tidbits.

But, but, but.

Were those three pieces fair game for an attorney to discuss? Clients, after all, share all kinds of information about themselves. Lawyers often need to know what they are, so that we can represent them the best. Sometimes the information is useful, sometimes it’s garbage.

Wells is licensed in New Jersey, and that state’s Disciplinary Rules of Professional Conduct would control. In this case, it would be section 1.6 relating to confidential information. With few exceptions, “A lawyer shall not reveal information relating to representation of a client…”

Did any of these three stories relate to his representation? I think it goes against Wells. The comments were made in the course of a client meeting. The client may reasonably expect the such communications would be privileged — even if it is Donald Trump.

I’ve written before about lawyers that want to capitalize on being associated with those in the public eye, such as Lindsay Lohan, or as part of puff pieces. This stuff is almost always verboten.

It seems to be that if an individual can’t keep a secret, then representing clients may not be the right line of work.

I’ve reached out to Wells for comment and he gave this initial response:

The only references made were to conversations approximately 30 years ago, not on business or legal matters and no legal advice was sought or given in same.

There is, of course, no part of the client-attorney privilege that simply expires based on the passage of years. There is no statute of limitations with regard to confidentiality.

As to whether the information must be strictly related to “business or legal matters” or “legal advice,” that is not an easy line to draw. Clients talk, in confidence. And they deserve to know that the confidences will be kept.

Even if a client hires a lawyer to do a closing, and then volunteers in private that she killed someone 20 years ago, or that she cheated on her husband with a few dozen others, I don’t think it means the lawyer gets to blab the stories later. The stories may not be related to the subject for which the lawyer was hired, but were still uttered within the quiet bubble representation.

If you think I’m wrong, have at it in the comments.

Update: Mr. Wells gave me a further comment by email:

this conversation did not deal with a legal or business matter and no legal advice was sought or given. There are other issues in this instance as to who the actual client was, who was present etc. but that could be argued to be confidential so I will not go there.