February 25th, 2015

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?

February 11th, 2015

Allstate Adjuster Likely Wants Her Snark Back

Don’t those nice Allstate hands look so friendly?

A snarky email from an Allstate adjuster may cost the company $900,000. Here’s the story.

By most anyone’s definition, 66-year-old Carol Haberman’s experience while walking her dog can be a horrible, life-altering one. Newspaper deliveryman James Burke backed out of a driveway at night while making a 3-point turn and ran her over. Realizing something happened, he pulled forward, likely running her over again.

The result? A complex left hip fracture requiring a total hip replacement, a lumbar compression fracture and compartment syndrome requiring a fasciotomy of the left leg.

What happened in litigation, however, was astounding. You may hear me rant about insurance companies and adjusters sometimes, and now you’ll see another reason why. The difference here is that the adjuster actually put her Kool-Aid inspired thoughts into writing.

There were two fundamental issues to deal with: How to apportion fault as between a driver and pedestrian. And how severe the injuries were. This would include, of course, the extent to which she had prior injuries that may have been affected.

But any way you sliced it, this was a significant matter to be deftly handled. Practically speaking, both plaintiff and defendant would want to limit their exposure with a jury. This is the type of common sense risk management of which settlements are made.

This is also one of the primary reasons that picking stupid personal fights with the other side is detrimental to a client. Because one day you might need to talk turkey over coffee with that other side about how to best serve your client with a negotiated deal.

And so it came to pass that, with a $1.25M insurance policy on the line, the parties in Haberman v. Burke thought that they had reached a settlement of sorts. This would have been what we call a high-low agreement that limits the financial exposure of both sides, with the high being $1.1M and the low being $100K.

The problem? Plaintiff’s counsel, Paul Edelstein, believed that this established the high and low of damages, and that only the issue of liability would be tried. Given the costs of hauling experts into court, this is an arrangement that can make sense for both sides.

But no. Allstate insurance adjuster Andrea Sewsankar thought that both liability and damages would still be tried. And she wanted that despite the fact that her “expert” was the discredited orthopedist Robert Israel.

OK. An understandable miscommunication occurred. But one would logically then assume that an effort would be made to hash out a solution, especially since the defendant had a problem with its expert. Whether agreement would have been ultimately reached, who knows, but certainly the efforts would be continued. Right?

Dear Reader, would I be writing this if that effort were made?

No. Instead, Allstate’s Ms. Sewsankar shot off a deliciously snarky email after Edelstein said that the two of them were not on the same page as to the details of the high-low. This was the set-up to the nastiness, via emails that I have obtained that were being used to confirm the deal:

Sewsankar: As we discussed, win or lose, your client is guaranteed a payout of $100,000 in exchange for a cap at 1.1 million. No appeal & your client will be responsible for all liens including and not limited to Medicare.

Edelstein: Correct. But also no damages trial. We will do hold harmless and deal with any medicare lien

Sewsanker: Oh no, damages trial also.

Edelstein: Oh man. Sorry. We weren’t on the same page. I cant do that. Only high low if we do away with damages trial

So far, not a problem, right? Just two sides trying to confirm in writing the nature of a deal, and then realizing that they had an unresolved issue.

And then, Boom! The testy little missive that will likely cost Allstate a bucket full of money before it’s all over, and which cracks open the Kool-Aid drinking mindset of some insurance adjusters, and which will be extremely important after this week’s verdict:

Sewsankar: No problem, I thought you had recognized the awesome skills of my defense counsel & wanted to garner a six figure payout for your client, so I took the opportunity to solidly protect my insured with this cap. Luckily, no payout will be warranted when Ed scores a defendant verdict on liability.

Thanks a million.

Don’t you love the hubris? I’m not sure which part of the email is the best: Is it boasting of the “awesome skills” of her counsel? The “no payout will be warranted?”

I’m betting it’s the “thanks a million” part that really must be hurting Allstate now. Because the liability verdict found 65% in favor of the plaintiff, meaning that Allstate would have been on the hook for only 65% of $1.1M high-low, or $715K.

But instead the case then proceeded to a damages trial with this result this week in very conservative Suffolk County:

past pain/suffering: $500K

future pain/suffering: $750K

future medical expenses: $400K

future home health aid/ assisted living facility costs: $800K

Add that up, and it comes to $2.45M, and 65% of that is $1.6M. And the insurance policy was only $1.25M.

So, when Ms. Sewsankar wrote “thanks a million” she was off by a bit. (I emailed her for comment yesterday morning but she has not responded.)

Her hubristic and intemperate email will, no doubt, be part of plaintiff’s efforts to collect the excess against Allstate in an action for bad faith. Her snark may cost Allstate about $900K. Either that, or it may bankrupt its insured.

You can almost feel the love from Allstate’s “good hands” logo. Almost.

February 4th, 2015

New York Needs More Robust Anti-SLAPP Legislation (Op-Ed)

This piece I wrote appears in today’s New York Law Journal. [Brackets] refer to endnotes in the original, and I’ve added some links:

—————————-

I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.

On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings.[1] You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.

But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.

When empty lawsuits are used to retard free speech, all writers suffer.

This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).

For example, in Rakofsky v. Washington Post, et al., I was part of the massive “et al.” [2] that included about 80 other lawyers, law firms, media companies, and John Doe/pseudonymous defendants. It seems that one Joseph Rakofsky, a neophyte New Jersey lawyer, went down to Washington D.C. to lead a murder defense. Except that he had never tried a case before. Of any kind.

The trial didn’t work out so well for Rakofsky or the client. The judge declared a mistrial partway through, and said (among other things), that it was “readily apparent” that Rakofsky’s performance was “not up to par under any reasonable standard of competence under the Sixth Amendment,” and “below what any reasonable person could expect in a murder trial.”

After The Washington Post wrote the story up, so too did many law bloggers, of which I was one, as well as the ABA Journal, Reuters and others, giving a variety of perspectives and adding depth to the already-reported story. Rakofsky sued so many people and companies that discussed what happened that the suit was instantly dubbed Rakofsky v. Internet. [3] Ultimately it was dismissed, since writers were relying on what transpired in court, or how Rakofsky presented his skills and qualifications on his websites. But there were no sanctions for his efforts to try to quash free speech.

The second suit, reported on the front page of this newspaper on Jan. 2, 2015, involved orthopedist Michael Katz. Dr. Katz had conducted a defense medical exam in a personal injury case (not one of mine). I found out that Queens Supreme Court Justice Duane Hart had repeatedly called Dr. Katz a liar in open court regarding his testimony. I then had the audacity to use my blog for original reporting on the subject, as well as offering my opinions on its significance.

Dr. Katz sued me. Once again the case was tossed at its initial stage, and once again there was no sanction for a litigant trying to suppress free speech by means of a lawsuit. [4]

But make no mistake about this, bringing hollow lawsuits that can’t even state a claim, and that clearly violate the robust freedoms ensconced in the First Amendment and fair reporting laws, have a chilling effect on others. While I continue to write about issues that I find important, there is no doubt that others hold back, fearful that they will be sued in order to intimidate them from writing, if that writing is critical.

Did I say that this affects writers? Well it also affects readers, who are deprived of the news and opinions that have been fearfully withheld.

Lawsuits to silence critics, such as these two against me, are called Strategic Lawsuits Against Public Participation, or “SLAPP suits.” They have become so common, with clearly significant free speech repercussions, that many states now have powerful anti-SLAPP legislation that stop the suits cold and award costs and attorneys fees to the victims.

According to Harvard University’s Berkman Center for Internet & Society, 28 states have anti-SLAPP statutes. [5] Unfortunately, the one for New York is exceptionally limited, and applies only to permits and applications in the real estate context. [6] It does not protect free speech in the abstract.

But legislation is pending in both the Assembly and Senate that would ameliorate that unnecessary limitation, and hold litigants and lawyers accountable for attempting to restrict the rights of others to speak and write freely. [7]

While some suits would nevertheless continue with pro se litigants, lawyers would be on notice that attempting to use litigation as a cudgel upon which to exert free speech concessions would backfire. Both litigants against me, it’s important to note, were represented by counsel. And both lawyers must have known that the suits were doomed from the outset.

This is, thankfully, one of those issues about which there is no partisan divide. Vexatious litigants trying to silence others are not part of any political party. The chilling effect such suits have on free speech effects us all equally, from the most prominent newspapers to the most casual individual looking to discuss the issues of the day.

In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment. [8]

The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.

Endnotes:

1. New York Civil Rights Law §74.

2. 2013 NY Slip Op 50739 (2013).

3. Scott Greenfield, Simple Justice, http://blog.simplejustice.us/2011/05/13/rakofsky-v-internet/, May 11, 2011.

4. Katz v. Lester Schwab, Dwyer & Katz, et al., 153581/2014.

5. http://www.dmlp.org/legal-guide/state-law-slapps.

6. Civil Rights Law §70-a and §76-a.

7. S1638-2015 and A258-2015; also, S1539-2015.

8. Matthew Pollack, New York Strikes Back Against Libel Tourism, http://www.rcfp.org/browse-media-law-resources/news/new-york-strikes-back-against-libel-tourism, Reporters Committee for Freedom of the Press, April 1, 2008, last viewed January 25, 2015.

February 3rd, 2015

Rakofsky Fizzles Out (updated!)

Joseph Rakofsky, from one of his web ads

And so it ends, with a whimper. Regular readers know that I was sued — how long ago was it now? May of 2011?— along with about 80 other lawyers, law firms, media companies, and John Doe / pseudonymous defendants. The suit was brought by one Joseph Rakofsky.

I was part of a group of bloggers with a joint defense — 16 writers representing 35 of the entities ultimately sued — and acted as local counsel, with Marc Randazza doing the heavy lifting.

In a nutshell, as per news articles and legal filings, Rakofsky obtained a lead to a new client while in the criminal court building in Manhattan. The new client had been indicted for murder in Washington D.C and he went down there to defend the case as his very first trial.

A mistrial was declared after a few days because, among other reasons, the presiding judge thought the defendant was not getting competent legal assistance within the meaning of the Sixth Amendment. The Washington Post published two articles on the subject, and law bloggers added much commentary that extended to the issues of Mr. Rakofsky’s advertising his services in jurisdictions where he is not admitted (including New York) and boasting of legal experience he did not possess.

Mr. Rakofsky proceeded to sue 74 different companies, people and other entities for defamation for discussing and opining on what transpired. After he was ridiculed on the Internet for having done so, he amended the complaint a few days later to add those that made fun of him, bringing the total to 81 defendants.

His attempt to amend yet again was shut down by the court when the action was dismissed. He filed a notice of appeal.

Rakofsky, using his third lawyer (not counting himself, as he is not admitted in New York, though he made some pro se appearances while between attorneys), conceded in September 2014 that “pursuing this appeal would be unproductive.” Yet he wanted an enlargement of time so that there could be a settlement conference. (Motion for leave to enlarge)

We opposed (as did others) saying that there was no point to a settlement conference since we would not give him “even one half-penny” for any claim that he thought he had. (Opposition to Motion)

And so, today, three years and nine months after it started, the motion was denied with this eloquent written opinion that only a lawyer could love:

Motion and appeal deemed withdrawn. Order

Since he conceded there was no reason to appeal, the Court deemed the motion withdrawn. And since they deemed the appeal withdrawn, then so too must the motion be deemed withdrawn.

While the word “dismissed” would sound so much better, I’m nevertheless happy to see this file headed to the old storage shed.

To my co-defendants who banded together in a big, old FU to this stupid lawsuit, in a staunch defense of First Amendment principles, I’m proud to have stood with you. And to those that gave him money or apologies and in the process surrendered your First Amendment rights to speak freely, you shall enjoy nothing but my scorn.

Elsewhere: Rakofsky v. Internet Dies With A Whimper (Randazza)

Updated (2/11/15): In the decision deeming the appeal withdrawn, there was a comment about a letter dated September 16, 2014. Letter? What letter? I didn’t receive no stinkin’ letter.

So I procured it from the court. And what do I find? That Rakofsky had (via his counsel) withdrawn his appeal with that letter, based on the fact that he wasn’t going to get a settlement conference.

But they never sent a copy to us, as required. Or, apparently, anyone else. In a case now legendary for fouling up just about every possible procedural rule, it is an ending that is, I think, just perfect. Here’s the letter:Letter withdrawing appeal 9.16.14

January 26th, 2015

The Day Gossip Died (Updated)

Many strange things have happened to me as a result of this blog. I’ve been on the side of a bus, punked the New York Times in an April Fool’s gag, and found myself on the editorial page of the Wall Street Journal.

But my name in boldface on the legendary Page Six of the New York Post? Me?! Get outta here!

Page Six is where Paris Hilton was born. It’s where Kardashians and Lohans live. Where celebrities of all types go to die, both metaphorically and literally. It may be the nation’s top tabloid gossip column. Or so I am told.

According to this Manhattan Media profile:

It launches books and movies, sells magazines, and makes and breaks restaurants, reputations and sometimes marriages. It has followed the exploits of Hilton and Pamela Anderson and broken news of scandals that became Page One stories. It got the first scoop on Marla and Donald, and more recently on Ellen Barkin throwing water at Ron Perelman at the Waverly Inn. In the world of politics, Page Six has uncovered former Secretary of State George Schulz’s posterior tattoo and the rift between Presidents Carter and Clinton, and it had a field day with the “portly pepperpot” that Clinton “canoodled” with, aka Monica Lewinsky.

What did I do to deserve such ~~disgrace~~ an honor!?

The article I was boldfaced in was, ostensibly, about recently arrested New York State Assembly Speaker Sheldon Silver. In order to make news, Page Six Grand Poobah Richard Johnson discussed — are you ready to follow these connections? — that Silver simultaneously worked for Weitz & Luxenberg as a rainmaker. OK, we knew that, it’s all over the news.

But he also writes that Perry Weitz (and the feds haven’t brought any charges against him or his firm) once worked for Weitz’s father-in-law, Morris Eisen. And Eisen was disbarred for little things like using a pick ax to make a pot hole bigger, or smashing a car with a sledge hammer to make the dent look bigger. I wrote about Eisen six years ago after he was himself hustled by Bernie Madoff.

Back then I noted:

“Murray Eisen the hustler has now been hustled by Bernie Madoff. Don’t expect me to shed a tear for either of them.”

So the Post pulled that quote from my post six years ago, about Eisen being hustled by Madoff, to attach to a wholly unrelated story about Sheldon Silver. Exciting, huh!

Did you follow that trail? Silver is connected to Weitz who is connected to Eisen who is connected to Madoff! I keep waiting for the connection to Kevin Bacon.

But we all know what these three degrees of separation really means, don’t we? It means there weren’t any celebrities that could be found over the weekend that entered rehab. Or got married. Or punched out a photographer. Or “inadvertently” let a booby slip loose. Or were photographed eating a cheeseburger.

When Page Six sinks so low for stories that it uses me as boldface then you know we have a problem in the gossip industry. Let me be the first to say it: Gossip is dead.

Photo credit: Scrum of Photographers

Or so I thought, until I found the scrum of photographers on my front lawn when I got home last night, itching for more on the Silver to Weitz to Eisen to Madoff connection. But as you can see from the photo here, I wasn’t quite ready for my closeup.

I know how this works: We live in a world that has gossip, and gossip must be written by men with keyboards. Who’s gonna do it? You? You, Lt. Johnson? I have a greater responsibility than you could possibly fathom. You weep for …

Oh, crap, that meme won’t work…but the film does have Kevin Bacon.

I’m on Page Six. The world is a funny place.

Update: To those spreading rumors about me with Bethenny Frankel, please stop. My wife reads this blog.