February 2nd, 2016

My Turn In the Jury Box (Kinda, sorta)

Watergate jury, by John Hart. The original hangs in my office.

I last sat jury duty almost 20 years ago. I didn’t know why I had been called since, but when the jury questionnaire came in to my house late last year and I confirmed my address, I knew it was coming.

That day was a legal trifecta of sorts for me: Not only did I get the questionnaire, but on the same day I was served with subpoena to testify in a deposition, was I had been a witness to a pedestrian knockdown, and I also settled a case during jury selection. On one day I was involved three ways with the legal system: as lawyer, witness and potential juror.

And the jury summons not only came, but I got two of them, one for my local city court and one for federal court.

Would I get a chance to send someone to visit Old Sparky after we gave him a nice, fair trial?

The city court appearance was first. There were two (civil) cases on the calendar.

I was looking forward to seeing other lawyers question me, figuring this would be great fun. You could see the scenarios, couldn’t you?:

Q: Aha! Your a plaintiff’s lawyer, so you must sympathize with those who are injured!

A: Well, I have a long history of telling people no. If you don’t say no often enough you go bankrupt. Also, I guess this would be a good time to mention I’ve had two frivolous cases against me in the last few years. And that I’m the race director for a trail race where there is a great likelihood of people getting injured (waiver/disclaimer).

What would they do with those things? Would they apply the Turkewitz Beer Test? I wanted to watch the wheels turn in the lawyers’ brains. Just for fun.

So off I went last Monday to sit, only to find that the cases had both settled. Not to worry! we were told, just come back the following Monday (yesterday) as there were two more. I was called for 10 am and was out the door by 10:30.

The second Monday came and, poof!, just like that, they were down to one case, and it too had settled. In by 10, out by 10:20, and jury duty over for the next six years.

I didn’t get to watch any reactions about what to do with me.

So, was this a waste of time? Of course not.

Because the very fact that we were sitting there forced the lawyers (or insurance carriers) to take one of two paths: ~~Shit, or get off the can~~ fish, or cut bait. There were no longer excuses for delays.

I’m certain that many walked out of that courthouse believing that their time had been wasted. But as someone who has disposed of many a case either at jury selection, or during trial (or deliberations) I tell you that the mere presence of the community sitting there in the box holding its finger of fate over the heads of the litigants, makes things happen.

And happen they did, though no on gave me the details.

By the way, I woulda’ been an awesome juror.

February 1st, 2016

What’s the Most Important Word for a Lawyer?

yes-no Last night on 60 Minutes an advocacy group presented secretly recorded video that shone a very bad light on a group of lawyers. It was a sting operation about laundering dirty money, and this gives you the gist of it:

If you like crime dramas and movies with international intrigue, then you probably have a basic understanding of money laundering. It’s how dictators, drug dealers, corrupt politicians, and other crooks avoid getting caught by transforming their ill-gotten gains into assets that appear to be legitimate.

They do it by moving the dirty money through a maze of dummy corporations and offshore bank accounts that conceal their identity and the source of the funds.

…

Tonight, with the help of hidden camera footage, we’re going to show you how easy it seems to have become to conceal questionable funds from law enforcement and the public.

—

Aside from that one exception, 12 out of the 13 law firms, including 15 out of the 16 lawyers… suggested ways that the suspicious funds could be moved into the U.S. without compromising the minister’s identity.

While some attorneys hesitated to accept the bait that was offered, among the 16 lawyers they approached, only one gave an outright “no.”

One of the lawyers was confident about not having any problems, because he said, “We run the country.”

Asset protection and creating corporate entities, of course, isn’t my lawyerly field. But all lawyers do share one thing in common: Potentially shitty clients. There is no nice way to say it. They may approach you in a multitude of different ways, from poorly thought out cases, to outright scams, to clients that are outright psychotic.

[Addendum: I wrote about a sting operation on personal injury attorneys run out of the Manhattan DA’s office in 2007.]

And so I’m reprinting this piece from 2013, about potentially problematic clients as seen from my perspective. But it applies to all lawyers:

——————————————-

The Most Important Word

The call comes in a thousand iterations. It often looks something like this, with my quick analysis in parenthesis:

My kid was hurt on the playground. Is there anything I should do? (Parent wants to know they did everything possible for the child.)

Could my spouse’s disease have been treated earlier? (Spouse wants to know they did everything possible.)

Someone said mean things about me on the Internet that are defamatory, can you help me? (Rage, often justifiable.)

That car ran a light and almost injured me. (Almost doesn’t count.)

You know where this is going, right? Lawyers that work on contingency receive all kinds of calls; they may be from the “how much is this worth” crowd, but quite often the motivation is emotional, not financial.

The word every lawyer needs to know is this: No. Say it out loud, say it again, say it often.

Part of the reason is because taking poorly vetted cases will drive the lawyer to bankruptcy. But also important is to save the potential client from themselves. A few minutes explaining the Streisand Effect, for instance, may make perfectly clear to the potential defamation litigant why that cease and desist order may catastrophically backfire.

When the injured person is a child, saying no isn’t particularly easy. Especially when you have your own and can truly empathize. But the ill-taken case will almost always lead to disappointment, making not only your situation worse, but theirs.

Interestingly, the most common response to the the word no is gratitude. The potential litigant simply didn’t know what was involved or how things worked or called because a friend insisted, or simply needed to know that they did all they could under the circumstances. Most people are appreciative when a clear response comes back.

I’m asked, every so often, if I could be a juror in a personal injury case. Defendants would no doubt want to boot me from the jury ASAP assuming I would be overly sympathetic and would have a tough time saying no to an injured litigant. But that would only be because they don’t know how much experience I have at turning people away.

No is the most important word. Use it and use it often.

https://youtu.be/DZN_8M4OpMo

January 28th, 2016

Doctor Tries To Take Down Lawyer’s Blog Post By Filing Grievance – updated x2

Michigan attorney Steven Gursten

Wow. Defense-medical exams and a defamation claim against a law blogger! Two of my favorite topics wrapped up in one ugly Michigan incident now ongoing.

Now you folks know I have a thing or two to say about doctors that do a lot of defense medical-legal exams. And you know I have a thing or two to say about BS claims of defamation, having been on the receiving end of a couple of moronic lawsuits.

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her. Like me, he thinks that many of the doctors that make these exams a staple of their practices are doing hatchet jobs on the injured plaintiffs in order to benefit the insurance companies.

(For a comic view of how one lawyer sees it, you can view this cartoon.)

The short version of today’s story is that Gursten’s client was hit by two trucks, and he asserts that the client suffered a traumatic brain injury, broken back, and other significant injuries. Dr. Griffen then did the defense medical exam (DME) — sometimes improperly called an independent medical exam (IME) — and issued a report.

Gursten then presented evidence and asked readers to draw their own conclusions as to whether Dr. Griffen committed perjury. In fact, by the title of his posting, you can see that this invitation to readers was his explicit intention:

Heading: IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

Subheading: How many thousands of innocent and seriously hurt people lose everything because of so-called “independent medical exams,” such as this example by Michigan psychiatrist Dr. Rosalind Griffin?

Dr. Rosalind Griffen

He presented evidence that Dr. Griffen — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.

Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.

This presentation of evidence, and request that readers make their own determination as to whether Dr. Griffen committed perjury, occurred Nov. 13, 2014.

Thirteen months later, Dr. Griffen filed a grievance, claiming defamation, and asking that the Committee require the lawyer to:

“delete his outrageous posting”; and
“[R]emove the link to Google results for my name.” [I didn’t make that up, I swear. — ET]
Punish and sanction him for putting her testimony and her conduct under oath on the internet for people to read.

Gursten wasn’t cowed by the complaint and proceeded to put it up online this week in a new posting with this heading and subheading:

Heading: Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?

Subheading: IME doctor files grievance to suppress blog post and punish attorney for disclosing her conduct

Over the course of a very extensive follow-up posting this week, he provided many examples of differences between what the doctor claimed, and what he said actually happened. This is a sample, with much more at the original posting:

What Dr. Griffin claims James Fairley said.	What James Fairley actually said.
“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)	“Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.” (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))

In the text of the grievance, Dr. Griffen complains thusly about the original blog post:

Notably, it is the first item returned when someone uses the Google search engine on my name, thereby ensuring that it will be noted and read by individuals researching me or selecting a psychiatrist who will best meet the needs of the patient.

The problem, of course, is that Gursten merely provided the documents and video testimony, and pointed to various sections of them, while offering his opinions. He did what lawyers do: He presented evidence and asked the jury (his readers) to decide.

The doctor’s complaints that calling her “notorious,” or her exam a “hatchet job,” would be merely opinion. And opinion is not actionable under the First Amendment. It isn’t even a close call.

She also tries to make the complaint, unconvincingly I might add, that writing about her exam and testimony violates Rule 8.4 of Michigan’s rules of professional conduct which state that it is attorney misconduct to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

Since there is nothing dishonest or fraudulent about providing evidence and asking a series of questions about where that evidence leads, I don’t see how she can possibly prevail. Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice. I do it here all the time.

Why would Dr. Griffen — who happens to be a member of the very grievance committee to which she is complaining — file this?

Leaving aside the obvious possibility that she may have friends on the committee, the other possibility is that she tried mightily to find an attorney to bring a lawsuit, and that everyone told her “Are you shittin’ me?” though they may have been a tad more blunt. Then a year went by, the statute of limitations expired in Michigan, and she made this complaint feeling she had to do something.

And so she did. And now people out of state, who had never heard of her, are writing about her. Well played, doctor, well played.

(Pro tip: If you need to file a dopey defamation case, you might try Jonathan Sullivan at Ruskin Moscou Faltischek in New York. He’s the guy that brought Dr. Michael Katz’s pointless and doltish suit against me regarding an “IME” and testimony that Katz did. Who knows, maybe he wants to do it again?)

Addendum: More at Public Citizen, a small excerpt below. At the link are also case citations, and a thorough exposition on the chilling effect that permitting such grievances has on free speech.

Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity). It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations. Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.

In discussing the Michigan’s Grievance Commission, in highly critical terms for allowing this to go forward and requiring a response from Gursten, Public Citizen’s Paul Alan Levy writes:

The Commission staff might well be hoping to exact an apology as Gursten’s price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin’s bluff and raised the ante.

Addendum #2: Scott Greenfield weighs in on Rosalind Griffin using a disciplinary complaint because an actual defamation case would fail, and the completely expected reaction (from anyone in the least bit savvy about the internets):

But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.

Has Dr. Rosalind Griffin ever heard of Barbra Streisand? If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.

January 15th, 2016

30 Years Ago Today…

Studying for the bar on the front lawn of parents’ home, summer of 1985. That’s not a laptop — it’s a briefcase.

Oh gosh, I don’t even know where to begin. So I’ll just type and see what flows.

I remember standing there on January 15, 1986, in the well of the courtroom at the Appellate Division, Second Department, hearing my name read as part of the roll of freshly minted law graduates. Despite a small hiccup because my bar exam answers were lost, I was ready.

And thirty years ago today I was sworn in as an attorney. Ronald Reagan was President. Martin Luther King Day had just become a federal holiday. Chernobyl would soon melt down in the Soviet Union. And the subway was $0.90 and still used tokens.

I’d already been working for months as a “non admitted attorney” or “J.D.” or however else it was that I signed my name to letters back then, to qualify that I wasn’t actually authorized to stand on my own yet before a court.

But once admitted, I was quickly tossed into the litigation fire. And with that, there was one Golden Rule I was given: For the first year, there was no such thing as a stupid question. My mentor understood the risks of a young attorney too afraid to ask.

The boss went around the office and asked each of the medical malpractice attorneys to self-select a few files for me. You might rightly conclude that these were not the easiest cases in their file draws, nor those in the closest counties.

Within two months I was taking depositions in a medical malpractice case concerning a one-year failure to diagnose and treat lung cancer, when a spot that appeared on a routine chest x-ray was not appreciated. When surgery was finally done to remove the diseased lung, the pulmonary artery slipped out of the clamp and the man bled to death on the operating room table.

Everyone was sued. Internist, surgeon, assistant surgeon, anethesiologist, hospital. Everyone.

And it’s amazing what you remember from your first time, and the lessons (if you had good mentors, which I did) that carry through over the decades.

My marching orders were clear: No matter how much obstruction I faced at depositions by the battery of seasoned attorneys from the five law firms on the other side:

Keep asking questions, no matter what the other lawyer says.

Lawyers will object — don’t fight back. Just establish that the lawyer won’t allow the question to be answered.

Make a clear record of the obstruction.

Then make motions to bring back the doctors for continued depositions if they were recalcitrant in answering due to the antics of their lawyers.

Then actually bring them back for those continued depositions, even it’s for only one question and a few follow-up that need to be answered. Doctors are not happy when they have to take off half a day to answer just 10 minutes of questions. And their anger will be taken out on their own lawyer, who caused this to happen. That law firm will never do it to you and your clients again.

All the time, I was astonished that I was allowed to do this, and wondering if, at some point, one of those lawyers would point a finger at me and cry “fraud.”

I learned that it was OK to be inquisitive like a child, and to force witnesses to explain complex terminology as if I was a high school student. Because that might be all the education that some of the jurors have, and a real trial lawyer (not a baby one like me) might one day want to read it to those jurors.

In my first two years I tried two medical malpractice cases. And I’d completed over 100 depositions of doctors/nurses.

I was 28, and recognizing I might never have this opportunity again, took a year off to travel the world, knowing (or at least believing) that by that point I’d acquired the skills to be hired by reputable firms, and that no one would look at me and cry fraud. Because I had good training.

On return, I wasn’t certain what I would do, so I printed up some business cards, taped one to a blank piece of paper and xeroxed that onto good paper. I had letterhead, and I was in business for myself doing per diem work for other lawyers. Court appearances, depositions, and eventually trials.

I typed up reports on the Smith Corona I had used in law school. I filed papers myself. I made countless phone calls from courthouse pay phones, always carrying with me a roll of emergency quarters.

That was 1989. And the business I have today is, except for the technology, the same one — small firm practice doing personal injury (but not needing the per diem appearances and trials that consumed my first few years).

In this capacity I have represented people in big cases and small, famous (a client on 60 Minutes) and not (the vast majority). I’ve taken verdicts in every county in the area, and tried cases in both state court and federal. From the most mundane of tasks, to arguing in the Second Circuit. At the end of May, I am scheduled to be sworn in at the Supreme Court.

Along the journey I rented offices, hired (and fired) staff, and started this little blog (nine years ago). Many times I wasn’t really sure what I was doing, but sitting still wasn’t going to be part of it.

Today, I’m older than I ever was, but know that I am younger than I’ll ever be. So I keep moving, and if I get a chance, will continue to run marathons. It may be that one day I look back at these as the good old days.

The lessons along the way have filled this blog — on deposition and trial tactics, ethics, marketing, law office management, cases in the news, recent personal injury decisions, tort “reform” and much, much more. I rarely write about myself in this space — I’m not big into navel-gazing and if this blog was about self-promotion I’d have an audience of one — but I make an exception today.

It’s my anniversary. Or barversary. Or something. There must be a wonderful portmanteau to invent for such an occasion, but I just haven’t thought of it yet.

Happy anniversary to me. I think I’ll go have a beer tonight.

December 30th, 2015

Let the #BillCosby War Begin!

I don’t even have to look at Twitter to know what is happening given the announcement that Bill Cosby has been charged with aggravated indecent assault based on a 2004 incident.

On one side, those that defend him. On the other, those that want to flay him.

And they both share this is common: They have formed their opinions before any evidence has been introduced in a courtroom and before any juror has been able to evaluate any piece of evidence.

Nor will it matter to those staking out their ground. ‘Tis a magnificent piece of confirmation bias being played out now.

Few will be likely to change their minds once evidence is actually introduced. Because everyone will want to be “right” and will seek out that which supports their own first impressions.

The public discussion and trial will follow the same course that white “subway vigilante” Bernhard Goetz did when he shot down four black teenagers in a subway in 1984. Protesters filled the streets outside the courthouse, some claiming he was a racist and others saying it was self-defense, with the protesters sharing one thing in common: None were in the courtroom listening to the evidence.

And it will follow the same track as the George Zimmerman trial, who shot and killed Trayvon Martin in 2012. First form an opinion based on your gut, the look for evidence to support that opinion.

Confirmation bias is in the air again. Can you smell it?