April 9th, 2015

Enthralled with the Press

Did someone drop an extra dose of stupid in the drinking water of Charleston, S.C., attorney David Aylor?

If the name doesn’t ring a bell, let me attach it to an incident: On Saturday in North Charleston, police officer Michael T. Slager shot dead a citizen of that city, Walter L. Scott. Slager claimed that he stopped Scott for a broken tail light and then shot and killed Scott when Scott tussled for the officer’s Taser.

Aylor was the criminal defense lawyer for the cop, and said he believed that Slager followed the proper procedure.

But then a video surfaced that showed Slager shooting the unarmed Scott as he was running away. It looks like little more than an execution as he shot eight times at the back of the the fleeing Scott, hitting him five times.

Slager was arrested for murder. And his lawyer — Aylor — dumped him.

But Aylor didn’t just dump him. No, sirree. What he did was dump him publicly, thereby implicitly violating the attorney-client privilege and calling his client a liar. Lawyers don’t do that.

Lawyers don’t get hired for the purpose of violating confidences. If Slager lied to his lawyer in private about the facts, that is between client and lawyer, and nowhere else.

In response to being swamped with press calls after the video came out, Aylor could have said two things. First, he could have said “no comment.” Period. End of story.

Alternatively, if he was sick of being bombarded by press calls, he could conceivably have said that a change in counsel was in progress, and he obviously couldn’t say more. No one would know why. There are plenty of reasons for a change in lawyers, and few would think anything of it.

But instead, Aylor gave an interview to the Daily Beast. And after superficially claiming that he couldn’t discuss the matter, then proceeded to piss on the guy that came to him for legal help:

I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.

So there it is, he told the world that

1. He was the one dumping the client; and

2. That he was dumping the client right after seeing the video.

In other words, I think he called his client — to whom he owed a duty as an attorney — a liar, since the video likely didn’t match the story he was allegedly told. There is no other way I can see this.

And in case anyone might think this was a single, moronic slip of the tongue, he did it again later in the interview:

I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.

So Aylor intentionally threw his client under the bus.

Now his client may be a murderer, and may be a monster and may be all sorts of mean, nasty things about which you will see protests in the coming days/weeks/months.

But the lawyer’s allegiance is to the client that came to him for help. If clients can’t speak to lawyers about problems then they can’t get the legal assistance they need. We have that lawyer-client confidentiality code for a reason. And it doesn’t get violated just because the lawyer suddenly has a reviled client.

Aylor was completely unprepared for the press. When he should have said nothing, he gave this comically contradictory answer to a simple question:

How did you come across the video?

I can’t say where I saw it first. I first became aware of it via the media. In fact, a reporter sent it to me via e-mail.

Did he think that talking to the press was going to be a neat bit of self-promotion so that the could add another little line to his website about all the press he has been in? Methinks that is going to backfire big time, as I think most lawyers are appalled by what he did, and some of them just must might want to write about this.

This isn’t the first time I’ve written about a lawyer disclosing confidentially obtained information in a high profile case. I wrote about this five years ago when one of the lawyers being interviewed by Lindsay Lohan for a criminal defense thought it would be great to get some free press for himself by blabbing to the press about his meeting with her.

Incredibly, there is actually another comic note to all of this. It seems that Aylor put a video on You Tube boasting about being named the top lawyer in Charleston by City Paper (an alternative free weekly).

Don’t ask me how such a stupid survey could be done, but here’s the kicker: Aylor posted that little boast of being best on April Fools Day.

Elsewhere:

The Unwashed Advocate:

..giving an interview to the Daily Beast as an aggravating condition necessitating elevation to Interstellar Capital Dipshittery.

Simple Justice:

What could Aylor possibly have been thinking when the Daily Beast called and said, “talk to us, bro. It’s gonna be sweet!” The only rational conclusion is that he saw his 15 minutes of fame coming to an end, and wanted to get his brand in there before the name David Aylor disappeared forever. This was an opportunity to spin his involvement from lawyer for the devil to good guy who wouldn’t be caught dead standing beside the murderous liar.

Noah Feldman @ BloombergView:

[Aylor had] an ethical obligation as a lawyer to defend his client, not to abandon him or harm him by a public act of distancing. Yet in an interview with the Daily Beast, Slager’s lawyer did just that, dropping his client like a hot potato and strongly implying that Slager either had been set on a course of perjury or was simply too repulsive to represent.

…

It’s hard to avoid the implication that Slager hadn’t told his lawyer what really happened, and that lawyer withdrew at least in part because he thought his client had misled him.

Gamso for the Defense:

OK, yeah he essentially rolled on his client.

Yeah, he violated attorney-client privilege in substance if not in form while denying that he was doing that.

Yeah, he made an ass of himself in public, but that’s what comes from media whoring when there’s nothing to back…

Updated 11.11.15: Did Aylor really cut and run? Or was there another reason…

April 1st, 2015

The Squiggly Line in the Road

Squiggly yellow line down middle of road.

If you came here looking for an April Fool’s joke, sorry, but I retired in 2013. Now on to today’s post…

So there I am last weekend looking at the squiggly yellow line down the middle of the road. And I think to myself: Self, just what the hell does that mean?

Now several things spring to mind.

1. The yellow line painting guy was drunk and singing King of the Road.

2. The yellow line painting guy dozed off while listening to On the Road Again.

3. The yellow line painting guy was playing a joke on someone who likes Country Roads.

4. The yellow line painting guy wasn’t driving, but was actually running down the road trying to loosen his load with seven women on his mind, and was thus distracted.

5. The yellow line painting guy suffered from a disability of sorts that caused him to paint in a less-than-staight manner, and when the boss yelled at him he invoked the Americans With Disabilities Act and sang I Don’t Need No Doctor.

6. The yellow line painting guy was a genius.

A genius? Well, yeah, that is one possibility. Because this was a construction zone. And that means lower speeds. And what can bring down speeds quickly, that isn’t also dangerous?

No, not a sign. We expect signs. Even signs with squiggles on them.

But a squiggly line down the middle of the road? Well that might make a distracted driver take notice that something is up.

So I go with genius, a traffic safety genius, who sang Stayin’ Alive while he painted.

And if you got a better idea, I’m all ears.

March 23rd, 2015

Subway Gunfights and Other Distractions

Ever been in a crowded subway car when a gunfight broke out? I have. It’s not a fun altercation.

That incident from 20 years ago popped back into my brain when someone was shot and killed in the NYC subway system recently. Apparently some strangers exchanged words, and then blammo. (That’s the short version. Fuller version at Scott Greenfield.)

My experience with a gunfight occurred on an uptown Seventh Ave. express heading into Penn Station. At rush hour. Two guys started pushing each other, about 10 feet away from me.

There were a few people between me and the scufflers, but in a packed car, if one person moves quickly it reverberates. A few shouts from strangers to cool it. And when New Yorkers yell at strangers to cool it, you know something really odd is going on.

We try hard to keep to ourselves. Because New Yorkers love to pretend nothing is happening, even when it is. We don’t look into the eyes of our fellow passengers. There is no end to the possibilities of what may happen, too many of which are negative.

And then a couple shouts of “Gun!” Along with everyone else in the car, I dove to the floor. And I was happy. Happy to be on the floor of a filthy rush hour subway car. With someone else on top of me.

“Pop. Pop.” Two shots.

We pulled into Penn Station — with all those commuters on the platform thinking they were going to pile into that subway car and make their way home, as a tsunami of people flooded out.

I peeked back after exiting. There were two men on the floor. One holding a gun to the other. Neither moving.

The news that night reported a scuffle took place with pushing between the two men. One pulled a pistol. Then the other wrestled it away from the owner and shot him twice with his own gun.

Now I’ll explain why these two sudden and terrifying incidents actually matter in a simple trip and fall case. Stay with me here, because this time I think I have an actual point to make.

A great many trip/slip and fall cases focus on the defect, whether it’s ice, busted sidewalks, potholes, stairs, whatever. The defense is twofold: Either it’s too small to be actionable, or so large that it’s open and obvious. It’s all about the defect. Look, look, look at the defect. It’s tiny (or alternatively only a blind man could miss it).

Now here’s the problem, and the challenge for the plaintiff’s attorney: It isn’t enough to focus on the defect. Sure you have to prove it, but in a busy city like New York, there are a million distractions, some static and some dynamic. Your client is looking at those too.What was the reason that the defect wasn’t seen?

The static distractions are the fire hydrants, food carts, sidewalk signs and parking sign poles, trash cans and trash bags, store windows, dog droppings, sidewalk grates, and other such stuff of daily life.

But the dynamic ones are more important: These constitute the walkers, runners, vendors, baby carriages, dogs and bicycles that are everywhere, some moving fast, some slow, and some doing all they can to make sure you look at them.

And that is in addition to the hustlers who may deliberately bump you, dropping a cheap bottle of wine or eyeglasses, and demand that you pay for the damage you caused.

Why are these dynamics more important? Because you don’t want to inadvertently bump into your fellow New Yorker. Why? See gunshot stories above.

We don’t like to talk about this much, but it’s on everyone’s mind as we zig and we zag between the static and dynamic distractions of the walkways. An inadvertent bump into another is one of the disconcerting and discomfiting interactions of subway and sidewalk life, for it involves fear of The Altercation.

We don’t want to have this anxiety, but we do. Because we don’t want The Altercation. It’s big city life, and we’d like to get safely to wherever the hell we set out to go with as little hassle as possible, thank you very much.

That’s why, on the subway, New Yorker’s don’t look at each other. Sure, looking another in the eye might be a sign of love. But it may also be one of aggression. And you don’t want your glance to be “mistaken.”

Know how you can tell who the tourists are? They look at other people on the subway — though in all fairness the pastel shirts of some give them away long before that.

Where was I? Oh yeah, so we don’t always look down when we walk. We don’t always see the static defects that blend into the background and, quite frankly, shouldn’t even be there. We mostly look for the dynamics around us, trying to avoid the cars, bicycles, crazy taxi drivers and each other.

The lawyer that focuses solely on the defect may well lose. Sure, it could be a deceptive walkway, like these stairs, poor lighting, or an infirmity of the pedestrian that makes the defect more difficult to discover or navigate.

But the defect, which represents a trap, also exists in a much larger environment and context that is filled with other dangers to our well-being.

If you take the slip/trip fall case, the client ought to be able to reconstruct his surroundings to answer the question of why the defect was missed. And I don’t mean the easy questions of lighting or personal disabilities. But what were the static and dynamic distractions that existed in the few seconds before the fall?

You can have completely different results despite a defect being identical. In one case, you might have someone walking down a narrow and crowded subway stairwell, and miss the ice patch as he strives to avoid bumping his fellow commuters.

But if the reason for that same slip was that he was sending a text message — adding his own distraction to the multitude that already exist — there is as good chance he will lose.

To the practitioners out there, don’t just ask about the defect in the walkway. Find out what the potential client was looking at instead. Because the jury will want to know.

March 16th, 2015

Another Defense Orthopedist Slammed By Judge

You remember, dear reader, that one of my concerns about the fair administration of justice in personal injury cases here in New York is the fact that defense doctors are often less than candid in the independent medical-legal exams that they do?

Dr. Robert Israel was sanctioned by the state. Dr. Michael Katz excoriated by Justice Duane Hart. One doctor decided that what’s “normal” is what the insurance carrier tells him. Another reveals how to leave out of the reports things that may be beneficial to the plaintiff. And I uncovered in my own investigation a bevy of doctors doing “quickie” medical exams.

Now comes before us Dr. Julio V. Westerband, yet another orthopedist. And he was benchslapped big-time last week in an opinion by Justice Arlene Bluth. He seemed, in my humble opinion, to be oddly challenged by the idea of writing objectively for an “independent” exam.

This is the set-up: Plaintiff was standing on the sidewalk outside a car wash. Defendant driver lost control of his car and hits the plaintiff. Plaintiff suffers injuries, including a broken ankle.

I know, it’s complicated. But this is the interesting part: to proceed in an auto case in New York you have to show a “serious injury,” and one of the ways of doing that is by showing a fracture. So the fact of fracture is particularly important.

Plaintiff moved for summary judgment, both on liability and on the issue of serious injury. Liability wasn’t contested, but the fracture was.

How can Dr. Westerband — who did a medical-legal exam of the plaintiff on behalf of the defendant — contest the fracture that repeatedly showed up on the x-rays? Easy! By not reading the x-rays and simply ignoring the written reports that he concedes explicitly state that the ankle is fractured.

No, really, I’m not kidding you.

Plaintiff put in proof through his own orthopedist, who treated the plaintiff and saw the records, that the ankle was broken.

But Dr. Westerband? Could he be bothered with objectivity? Well, if he did that, then the defense would lose, right? If multiple radiology reports all say fracture we can pretty much guess that there will be a fracture, right?

And he did see the reports, for in his own report — summarizing the records he reviewed and his medical-legal exam — he indicates that all four of the ankle x-rays reports show a fracture. Westerband Report

But instead of writing “fracture” in his own report, which is a magic word according to our Legislature, he writes “questionable” fracture. Based on what is it questionable you ask? Funny that you should ask, because Justice Bluth asked the same thing, and then wrote:

He did not review x-rays and did not disagree that plaintiff suffered a broken ankle in the accident. Rather, with no support whatsoever, he concludes “status post questionable right ankle fracture.” Maybe if he looked at an x-ray he wouldn’t have a question.

Zing! The defense, having failed to raise an issue of fact on the issue of a fracture with this idiotic argument, lost the motion for summary judgment. They should probably be grateful that plaintiff’s counsel didn’t move for sanctions. Given Justice Bluth’s obvious annoyance at having to even hear this nonsense, it wouldn’t surprise me if she would have considered it.

Dr. Westerband, by the way, has previously testified that he testifies about 25 times per year and that half of his income comes from medical-legal exams and testifying. I know, you are shocked.

The decision is here, and as you can plainly see, handwritten. So I’m publishing it now also in a Google-friendly way, since handwritten opinions aren’t likely to get officially reported, and others may wish to cross-examine Dr. Westerband on why he makes decisions on fractures while both ignoring the x-ray reports and failing to look at the films: Westerband Decision

You’re welcome.

March 10th, 2015

The Fainting Lawyer and the Stress of the Courtroom Well

Hans Poppe, Louisville, KY

Almost two years ago I wrote of the lawyer who fainted dead away on the 10th day of a medical malpractice trial, where he was representing the patient. And the defendant doctor he’d sued then rushed forward to assist him. The story even had video.

The lawyer, Hans Poppe of Louisville, KY, was at the bench discussing the defendant’s motion for a mistrial when it happened. Poppe, it seemed, had inadvertently played an unedited version of a deposition that had a verboten discussion of medical malpractice liability insurance in it, instead of the edited version that excluded those questions.

That technoblunder resulted in a mistrial, and the insurance company, Kentuckiana Medical Reciprocal Risk Retention Group, then went after Poppe for the costs of the mistrial. The insurer sought a whopping 125K in costs and fees.

And now the issue has come to a conclusion, and hence this update.

In a decision dated February 13, 2015, Jefferson Circuit Court Judge Audra J. Eckerle supported Poppe and not the insurance company.

Why? First off, the insurance company provided no evidence that Poppe acted intentionally. How does one prove intent from mouse clicking the wrong file to play in the courtroom? By looking at both the actual evidence and mitigating circumstances.

And the judge saw that, upon realization that the wrong video had been played, and understanding the ramifications of it, she wrote that the Court saw:

“…the color pass from Poppe’s face when he realized what he had done. And, of course, it witnessed him faint when the fully gravity of his malfeasance hit him. His subsequent actions and apology seemed genuine. The Court accepts that, as well as the mitigating circumstances that Poppe has offered.”

What mitigating circumstances? This is the nuts and bolts of what it is to stand in the courtroom well, having waited years to get there, sorted through countless documents and potential exhibits, to walk the proverbial high wire without a net after enduring nights without sleep as you stress about the innumerable details of a trial:

Poppe’s misdeed occurred during the third week of a hotly disputed, highly contentious, multi-million dollar claim. Many lawyers battled. Discovery had consumed several years and several thousand documents. Witnesses and exhibits were legion. One error occurred. While it was colossal, it was singular. The Court cannot conclude, under the totality of the circumstances, that the conduct was anything other than a horrible mistake, brought on by fatigue, weariness, and exhaustion, and not by malice, egregiousness or bad faith.

That was it: one mistake. My reading of that is that Poppe’s own good reputation saved him. The matter had been contentious for sure — this was a trial after all — but he hadn’t done anything else to worry the judge.

Reputations matter. They may act, as they did here, as circumstantial evidence if that reputation was earned in front of the fact-finder.

She concluded:

Without question Poppe’s actions came at a cost to his opponents, and to himself, in a rather public and humiliating fashion. But Poppe did not impugn the integrity of the Court or undermine its authority.

The motion for sanctions was denied. And the case, by the way, settled.