March 25th, 2014

Court: No, You Can’t Have That YouTube Video

Another social media case. This time, instead of the keys to a Facebook account being sought, it is a YouTube video that had been pulled down or hidden. And the video subject matter involves drinking, smoking, shooting a gun and cursing, among other things.

Is this stuff relevant to the lawsuit such that it need be disclosed?

The case of Reid v. Soults starts with tragedy, as 26-year-old Robert Reid falls off an ATV and suffers a traumatic head injury. Off he goes to see the defendant doctors for treatment.

A medical malpractice suit ensues as the young man dies, premised on a delay in treatment for cerebral edema. As with every other medical malpractice case, obviously no claim is made for the injuries suffered before the patient came into contact with the defendants.

In this case, there is a YouTube video called “Rob Reid Raw and Uncut” that was placed online by non-party Thomas Reid, Jr. (brother of Rob). It showed, according to the defendants, “the decedent drinking, smoking, and using guns,” all of which preceded the accident and alleged malpractice. That video was then taken down or made private.

Coming as a shock to absolutely no one, the defendants wanted an authorization for the YouTube account of the non-party, bringing up an interesting issue as to whether such discovery should be entertained.

The plaintiff, of course, countered that the only reason the defendants wanted the video was so that they could besmirch the character of the decedent in the hopes that the jury wouldn’t like him, and therefore ignore issues of malpractice.

In other words, the plaintiff wants the trial to focus on the doctors. The defendants want the trial to focus on the conduct of the decedent before any accident even occurred, and are looking for any hook to make it relevant.

The issue for the court: Could the requested discovery be relevant to the issues of pecuniary loss and life expectancy, which are at issue in a wrongful death case, such that it would then make it discoverable?

Back in 2011 when a lower court told a different plaintiff to cough up all Facebook data for a similar request for social media records, the appellate division (First Department) stopped the practice dead in its tracks and forced the lower court to do an in camera review.

The problem here for the courts is that, with the explosive creation of new potential evidence due to a variety of social media, the courts could be swamped by such requests, and each request could contain mountains of postings, private messages, photographs and videos.

Last year, Judge Joseph Maltese, sitting as a trial judge in Staten Island, warned of the problem of defense fishing expeditions through the lives of plaintiffs and the tsunami of data:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

The appellate court in the Reid matter told the lower court to review the video. And Judge Joan Lefkowitz, who sees many of the medical malpractice cases in Westchester, did just that. And she found it badly wanting in the relevancy department, giving the defendants a big fat no in response to their attempts.

A final note: While the standard here is that the party making the request must show a “factual predicate” to get access to the records, the exceptionally burdensome task that will befall the courts in doing the reviews of what could be, in some cases, mountains of records, means that if such requests are not well-documented, the request should be doomed.

The vast majority of such requests I have sheen so far are simply fishing expeditions. Courts are not going to place themselves in the position of looking for a minnow in an ocean on behalf of the defendants.

Note: On my request, plaintiff’s counsel Anthony Pirrotti, Jr. — a frequent lecturer to other trial lawyers — provided me with some of the background, via one of the briefs.

March 24th, 2014

Judicial Hellholes (About That Motherf*ckin’ Post…)

Last Friday I put up a story about a potential juror that, upon hearing the case dealt with a slip and fall, said to the plaintiff’s attorney during jury selection, “You motherfucker.”

I had three reasons for putting up that guest blog by “M.J.” First, it was funny.

Second, it showed how a talented attorney could make lemonade from lemons, as the few jurors left in the room after the majority made a run for the door were those most likely to listen fairly and objectively.

But the third reason was the most important. All too often we hear bleating from the bleachers — those who don’t actually try cases but fashion themselves pundits on the subject — about how easy it is to manipulate juries, or how the jury system is skewed in favor of plaintiffs due to the sympathy factor.

One outfit, the American Tort Reform Foundation, annually publishes a report on “judicial hellholes.” No, it isn’t an empirical study. They simply interview attorneys for corporations and ask them which places they wouldn’t want to be sued in.

But you wouldn’t know that by the way the press annually reports on the report as if it was a real study. Let’s face it, many members of the press are lazy and simply refashion press releases into articles.

You want a judicial hellhole? Then look at potential jurors who aren’t even interested in the facts, as they have already decided that the cause of the problem is not what caused the injury, but the lawyer that sought the justice.

The marketing folks learned a long time ago that propaganda often works. The job of the propaganda victims is to expose it and hopefully educate others. Thus, over at the PopTort, they once mockingly wrote of the report:

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out. You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers. Frankly, it gives me goose bumps. [much more at the link]

Sometimes we succeed in our education. Adam Liptak at the New York Times wrote about the judicial hellholes report that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

Since the tort “reformers” never stop, it’s worth noting that there are, in fact, judicial hellholes out there. Anyone that has ever stepped into the well of a courtroom and engaged in jury selection will have war stories to tell about it, albeit not quite as blunt and funny as the one “M.J.” shared with me last week.

March 21st, 2014

When a Juror Calls You a Motherf*cker

Sadly, “M.J.” didn’t want to attach his name to this story in public. But I assure you it comes from a prominent top notch NY trial attorney, and is very much a first person account of jury selection.

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I picked in Nassau a couple of years ago on a trip and fall. I stood up and asked the panel whether there was anyone who took issue with the case from the outset simply by virtue of the fact that I represented someone in a trip and fall accident where they were claiming injuries.

A pleasant looking 40-ish year old woman raised her hand and said “You motherfucker.”

I started laughing and said “I’m sorry, what?” “You motherfucker. I’m so sick and tired of you lawyers suing everyone for x,y,z…”

This went on for about 3-4 minutes and then I asked her to come outside and we saw the clerk. I told the clerk “This nice lady feels I’m a motherfucker and can’t judge my case fairly.”

The clerk sent her to a murder trial panel.

I went back into the room and asked the panel “Who else here thinks I’m a motherfucker?” All but five hands went up and I let them all go.

My adversary turned to me and said “Why don’t we let these five jurors go and start fresh?” I said “no, these five people don’t think I’m a motherfucker – I’m keeping them,” to which my adversary responded “You motherfucker.”

Update: There were multiple reasons I put up this war-story post, and here they are.

March 12th, 2014

Speeding Along to Break Ethics Rules in Gas Explosion (Updated)

Well, that didn’t take long. As I sit here pecking away at the keyboard, firefighters and search teams are swamping the site of a huge gas explosion in Harlem that took down two buildings, killed at least two, and injured many others.

The explosion took place at 9:30. The first attorney ad went up on Twitter within hours. The winner in the race to the bottom? [Updated, name deleted.) You can see a screen shot of his Twitter feed here to the right [deleted].

And if you can’t read the graphic, here it is in all it’s ugly glory, via his Twitter feed, @NY_InjuryLawyer:

Were you or someone that you know injured in the #eastharlem explosion? Contact [deleted] at 1-800-[deleted]. #harlem #explosion #nyc

(Update, 3/13/14: The firm has now deleted it from Twitter…see below for explanation.)

As regular readers all know, New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm representing actual or potential defendants or entities that may defend and/or indemnify said defendants, before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

The last time I wrote about this was December 2, 2013, when Proner and Proner were running ads after a train derailment in the Bronx.

And at the risk of repeating myself, yes, this is a solicitation within the meaning of the Code because it is targeted to a specific group of people:

Rule 7.3(b) For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

What I found interesting was that, in the weeks after that accident, I spoke at a seminar on the subject of attorney ethics and solicitation. Incredibly, there was someone there trying to defend the practice of violating an explicit rule on solicitation. His rationale? That there existed some type of generalized duty of lawyers to inform the public of their legal rights.

Let’s be clear on this. Soliciting within 30 days seems to be a pretty clear violation. I can’t foresee anyone being able to lawyer their way around it if called on the carpet by the disciplinary committee.

The only real question is whether the disciplinary committees will turn a blind eye to what is going on.

Update, 3/13/14: I received a call from a very distressed support person for the lawyer — she is in charge of the social media for the firm and is the one that did the tweet. She told me that she posted the tweet without having it reviewed by her boss, which was her mistake.

I told her that the mistake was not hers, but the lawyer’s, for outsourcing his marketing to a non-lawyer who didn’t know the Code of Professional Conduct, and noted the formula: outsource your marketing = outsource your ethics.

She corrected me, and noted that she was supposed to get approval. Thus, the fault lies with her.

A couple of things worth mentioning. First, I always give brownie points for people that ‘fess up when they’ve made an error. I wish our politicians would do the same.

Second, there were no threats of any kind. It was, in all respects, a very polite request made by phone. She had the voice (and integrity) of the type of person a lawyer would want as a support person.

Finally, I’ve elected to delete the lawyer’s name from the text, and pulled it off the category heading. It is still on the graphic [edit: changed my mind, now that is gone also], but graphics aren’t searchable by Google.

So it now stands as another example of the risks of social media, as well as an excellent example of how to cure a foul up. This morning the firm had lemons. Now it has lemonade.

hat tip: Andy Barovick

March 3rd, 2014

New York Changing Its Contingency Fee Formula

Ever since the Great Flood swept over the earth in the days of Noah, or at least since I was sworn in 28 years ago, New York’s contingency fees formula in personal injury cases has remained static: Lawyers get paid their contingency fee off the net recovery, not the net gross.

And now that is changing.

A short tutorial for those who might not get the significance: If a case settles for $100, and the lawyers advanced $10 in expenses, then they first get paid back their $10 and the legal fee is calculated on $90. Thus, a $60 recovery for the client and a $30 fee for the attorneys if the fee was based on one-third of the net recovery. (Medical malpractice cases, while being far more difficult and complex, have lower fees.)

If, on the other hand, we were paid off the gross recovery, the client would be paid $66.67 and the attorneys’ fee would be $33.33. Then the client would pay back the $10 in expenses and net out $56.67. The effect of compensating attorneys off the net was that the attorneys were paying ⅓ of the expenses of the litigation.

But New York’s second appellate department has now changed rule NYCRR § 691.20(e), which formally read that the fee:

shall be computed on the net sum recovered after deducting from the amount recovered expenses and disbursements for expert medical testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action.

Now, however, counsel is permitted to give the new clients a choice of how they wish to do it. The clients can either front the costs themselves (which most are economically unable to do) and allow the fee to be calculated against the net, or the clients may elect to front the costs themselves and have the fee calculated against the gross. Here’s the new rule: Contingency Fees in PI Rule Change

Is this good for clients? At first blush, some might say no because it means that the attorneys are no longer paying ⅓ of the disbursements — in the end the client is getting $56.67 instead of $60, in the example I used.

But in actuality, a great many cases aren’t so clear cut as to whether lawyers will take them or not because some are not financially viable by using the “net” formula. If there is only $25-50,000 in insurance, after all, and a lawyer thinks she may have to pay $5,000 – $10,000 in expenses, many will simply decline the representation.

We see this happen in medical malpractice cases all the time due to the low fees, resulting in the medical community enjoying de facto immunity for most acts of malpractice due to the very low legal fees we have in New York. While tort “reformers” claim this is a good thing, the real-world result is that the loss is then borne by the victims and taxpayers who must front the costs of the loss instead of the people or institutions responsible.

Word has it that the other three appellate departments in New York will soon follow suit with the altered fee calculation.

But one rule remains hard and fast and unchanging- when we lose we get zip. And we will also, most likely, be eating the expenses.