August 5th, 2022

The Alex Jones Bar Exam Trial

Some trials have simple legal questions. Some have complex ones. And then there’s the Alex Jones defamation trial winding up in Austin, TX, regarding his claims that the Sandy Hook massacre was a hoax. He’s been sued by parents of the kids.

Bar exams are an exercise in issue spotting. Issue determination is nice, but you can’t determine an issue unless you first recognize it is one. And Alex Jones, it seems, is a one-man bar exam with the explosion of issues surrounding this lawsuit. Some of the questions below may be easy; some not.

Were his statements about the massacre protected opinions or assertions of fact? If fact, were they reliably sourced? If defamatory, what standard would be used? Were the parents public figures?

Does the statute of limitations preclude suing on the statements? If some statements were made before after a statutory deadline lapsed, and related ones that are within the statute of limitations, can all of them be used in the suit or only the recent ones?

Was the judge correct in granting a default judgment in favor of the plaintiffs due to the failure by Jones to turn over discovery?

If there is a default judgment against Jones, to what extent can he still claim his statements were reliably sourced? If the plaintiff uses the poor sourcing of statements against Jones in pursuit of punitive damages, can Jones use the same statements in defense?

When Jones’ counsel inadvertently turned over the entire contents of Jones’ cell phone two weeks ago, was there an obligation by plaintiff’s counsel to alert Jones that there was privileged information on it? Did defense counsel properly object that the “oops discovery” should not be viewed when he emailed “please disregard”?

Did defense counsel commit legal malpractice in turning over the data? All of it or some of it? Does it depend on when he obtained it? Did he commit malpractice in failing to “snap-back” the privileged information within 10 days under TX procedural law? Can he snap back the non-privileged, yet irrelevant, parts? Did he commit malpractice in failing to object when some of it was used at trial? Could any of this be a proximate cause of injury to Alex Jones?

What happens to material on the phone that is not protected by a privilege, but is also wholly irrelevant to this case? Can the January 6th Committee obtain copies of inadvertently released “intimate messages” between Jones and Roger Stone?

Was any of Jones’ testimony perjury? Will the judge refer the matter to the DA? Will she level a contempt citation? If so, would it be redundant of any civil penalty that may come in the form of punitive damages?

When some of the information was used during trial, and Jones’ counsel failed to object, did Jones lose his right to appeal that particular issue?

When the judge found that plaintiff’s counsel acted properly by waiting 10 days under TX procedural law before using it, did that mean unrestricted use? Can he share any of it with others?

If some of the contents of the phone should have been previously disclosed, but weren’t, is there any additional sanction to levy against Jones on top of the default judgment against him?

When did defense counsel obtain the contents of the phone and what representation did he make to opposing counsel and the court about it? Could that subject counsel to a sanction on top of the default judgment sanction against the client? If so, will it come from the judge or a disciplinary committee?

Since some of the inadvertently disclosed material contained medical records for other Sandy Hook parents that are not involved in this suit, was there an ethical violation in defense counsel turning them over and then not properly retrieving them? Is it an ethical violation if the attorney was simply negligent in following procedure?

If the records were subject to a patient-doctor privilege, how did Jones’ counsel get them? Who sent them to Jones’s counsel? Was a confidentiality provision in another lawsuit violated? Or if the release came from a medical provider, a HIPAA violation?

What are the ramifications for the person that sent them? Is there a private right of action for the release of the privileged information? If so, would it fall under Texas law or Connecticut law, or the law of some other state where the records may have been conveyed from? Does HIPAA have a private right of action if errantly sent from a health provider?

What effect will the filing for bankruptcy by a Jones entity play in any verdict?

If the jury reaches a punitive damages verdict, what are the limits to it? Will it be state law or federal law that will be used to determine the limits? If federal law, how will the court apply the confusing determination in State Farm v. Campbell? Will the court use a ratio of 4:1 punitive:compensatory? A ratio of 9:1? The “no rigid benchmarks” standard? A ratio of 100:1?

How many other issues are there? And how many more are to come?

July 8th, 2022

Gov. Hochul Should Sign The Grieving Families Act

Back in 2017 I wrote the piece below on New York’s wrongful death law, and updated it with some additional links in 2021. It’s about New York’s ancient law, which, once upon a time, led the nation in giving rights to families whose family breadwinner had been killed by negligence.

But what once was, is no more. Now we trail the nation, for the reasons set forth below.

The Grieving Families Act has now, finally, passed the legislature. It was an act that has been percolating for as long as I have been practicing law. (See also Daily News Op-Ed: What Gov. Hochul owes grieving families, by Assemblymen Ron Kim of Queens).

Gov. Hochul should sign this very long overdue measure.—-

New York’s Grieving Families

[Updated May 11, 2021 with new legislative links at the bottom]

Once upon a time — like in 1847 — New York was a progressive state. We had, I believe, the first ever wrongful death statute for the benefit of families whose bread-winner was killed due the negligence of others.

And back then that was progressive.

The problem is that we have stagnated. This first-ever law has never been updated.

Essentially, if a family’s non-breadwinner is killed by the negligence of others, that person’s life — in the eyes of New York’s law — is worthless. Because there is no “economic loss” associated with the death. Mostly this means a child or retiree. Neither an infant, nor college student nor retired parent is likely to be providing an “economic” benefit in New York.

The grief of family members is, in New York, completely non-compensable.

Just as I addressed Lavern’s Law last week — the proposed legislation that measures the medical malpractice statute of limitations from the time the malpractice could reasonably have been discovered instead of when it happened — I address different legislation today.

If I can do my little part to help push New York into the 21st century I’ll be happy.

There is really no justification for telling families of the deceased that the court house doors are closed to them for their grief. Many of our sister states have such legislation. When out out-of-state lawyers call me to discuss potential wrongful death matters in New York, they are stunned to hear of the antiquated state of our civil justice system.

For many people, the courts are the only outlet for justice. We don’t encourage vigilantism, by any means, and a working, viable justice system is part of what makes a society function in a semi-civil fashion. And having this outlet oft-times provides a small means of holding people or companies accountable so that the same thing doesn’t happen to someone else’s kid, or parent.

2021 updates:

In the Senate the bill is S. 4006.

In the Assembly it is A. 5612.

The legislature is in session now and considering the bill.

If you don’t know your legislators, you can find them here by simply popping in your address.

Give a call to voice your support. It takes only a few moments.

June 27th, 2022

The Abortion Exception(s) – I Got Questions

With Roe v. Wade dumped on its head last week by the Supreme Court in Dobbs v. Jackson Women’s Health Organization, overthrowing 50 years of precedent, a number of new issues are presented. A great many of them are political issues, as NPR discusses regarding the legitimacy of the court and how this may affect other existing constitutional rights.

I deal today with a different issue, one of practicality and proof. In many states, there will be exceptions for rape and incest. The public will demand it, even in many red states.

The problem? If the only way for a desperate woman to get an abortion is to assert rape or incest, won’t that increase the number of such allegations? Isn’t that likely if the door of easy access is slammed shut?

Will some accusations be bona fide? Yes they will. Some who might have otherwise remained silent will now have an additional, and immediate, reason to come forward.

But will some not be bona fide? Probably. Desperate people, after all, do desperate things.

Will an abortion be a defense to rape? Well, if the woman has an abortion, and this was the only way to obtain one, mightn’t a defense lawyer argue, “This was a consensual act, She only made the allegation to get the abortion.” Will that have an impact when the defense is consent?

Will a rape allegation made solely to get an abortion (assuming you actually knew that answer) serve to denigrate those who have been raped (assuming you actually knew that answer), by diluting accusations? Will this make convictions for rape even more difficult than they are now?

And will an allegation be enough? What kind of proof will the state demand? Will she need state approval? What if an anti-abortion bureaucrat state dilly-dallies? And what if the acquisition of the proof — which may entail, for example, searches of electronic devices — takes a few months? Will the woman have to wait? Does she get the abortion only with a conviction of the accused? And if she does have to wait, well, you know where that is going.

Other have written of the many problems this decision will have, oft times dealing with the issues of FDA approved drugs, traveling out of state to get an abortion, telemedicine from out of state doctors, funding abortions, etc. Expect a flood of new legislation, all of which will be challenged.

I approach this from the perspective of one who does not do criminal defense law. But I do look at proof all the time. Regardless of whether an allegation is civil or criminal, proof is always an issue for the person that approaches Incident X with an open mind, as we all should.

Add this to the list. The laws and litigation that will flow from this day forward will be immense given the issues that have been raised. Will some new standard of proof be invented?

June 8th, 2022

NY’s New Social Media Reporting Law

New York Gov. Kathy Hochul turned a few heads when she said, during a speech regarding new gun safety laws:

“And in the state of New York we are now requiring social media networks to monitor and report hateful conduct on their platforms.”

Say what? Require a social media company to “report” “hateful conduct?”

Report to whom? And what, exactly, is “hateful conduct?”

From the bill jacket, we’ll start with the “definition” of hateful conduct:

Specifically, this legislation defines hateful conduct to mean the use of a social media network to vilify, humiliate, or incite violence against a group, or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds. So this is not an auspicious start.

But on reading it I saw that all the law actually required, contrary to what the Governor said, is that there must be an easily accessible mechanism for a user to report the issue to the social media site owner. Which, as far as I know, all of them already have.

There is no mechanism within that new statute for Facebook or Twitter to report to the government, or report to anyone else for that matter.

It also requires the social media company have a policy in place to deal with the situation. But the law does not (and could not on First Amendment grounds) tell the social media network how to handle those complaints.

So the network could have a policy of “Our company deals with these complaints on a case by case basis, and does so totally and unapologetically on whim.” Hey, it’s a policy, isn’t it?

In essence, the law does nothing.

Here’s the Governor’s brief (and erroneous) remarks on the subject:

March 24th, 2022

Assumption of Risk and the Swimming Pool

The fact pattern seems simple enough. A high school student at a swim meet dives off a diving block into the shallow end of the pool, four feet deep, and is injured when hitting the bottom. (A.L. v. Chaminade Mineola Socy.) She sues everyone involved.

Most lawyers would jump up and yell, “Assumption of risk! Dismiss the case!” And in fact, that is what the lower court did on the defendants’ motion for summary judgment.

That doctrine states that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. If so, case dismissed, and it isn’t even necessary to discuss if the defendant was negligent. (see, What Risks Have You Assumed?)

But the area to focus on, as always, is what constitutes “commonly appreciated risks?” Commonly appreciated by whom? If risks are concealed or unreasonably increased over those inherent in the sport, then the plaintiff might be able to plow ahead.

(Thus, a sporting waiver shouldn’t be written in legalese for a court to view in the event of an injury, but as an opportunity to explain “commonly appreciated risks,” as I did with this trail race waiver that I once crowd-sourced.)

Here, the critical factor is whether the participant’s appreciation of the inherent risk is “to be assessed against the background of the skill and experience of the particular plaintiff.”

As the matter came before the court on a summary judgment motion, the court’s inquiry is devoted to seeing if there are issues of fact for a jury. Or can the court decided it as a matter of law?

But the student testified at her deposition that “she was a competitive swimming novice with little to no experience diving into shallow water from a starting block, and that she did not receive adequate training from her coaches to safely perform race-start dives in this manner.

Since the issue of assumption of risk must be balanced against the the background of the skill and experience of the injured party, there was an issue of fact for the jury.

Thus, the Appellate Division (Second Department) reversed the lower court and sent this matter back for trial.