June 5th, 2013

John Edwards to Open New Plaintiff’s Firm in Raleigh?

Former Senator and V.P candidate John Edwards is, it seems, returning to the law. As per CNN:

Former Sen. John Edwards is looking to open a new law firm this September, a source told CNN’s Chris Cuomo.

The firm will be based in Raleigh, North Carolina, and will focus on plaintiff work, the source said. Before entering politics, Edwards was a nationally known attorney who specialized in representing plaintiffs in medical malpractice, personal injury and product liability lawsuits, earning millions.

On the one hand, he would return to a field he knows best. He was obviously comfortable earning his bread in the courtroom well.  The knee jerk reaction of many is likely to be that this is the job he should have.

But when someone writes “On the one hand” then you know another hand is about to throw the opposing view. And that will come from me.

If his job is to stick his name on the firm and make the rain and manage the firm, I see no problem. But if he wants to actually appear in front of a jury again, I think he brings too much baggage to do it well.

Trial lawyers, whether we like it or not, are perceived by many jurors as almost the same as a witness. Of course we aren’t and of course the judge tells jurors that “what the lawyers say isn’t evidence,” but what happens when the person standing in front of the jury doesn’t have credibility? We do, after all, have to make arguments that we hope to be persuasive, and human nature is to more readily accept arguments from people that we like.

On the criminal defense side, a lawyer can, perhaps, be a bit outspoken and a bit bombastic if s/he wants, the way William Kunstler was and his protege Ron Kuby is. But criminal defense lawyers don’t have the burden of proof and only need to convince one juror to save the client from the gray bar hotel. It gives them, in the eyes of some, a bit more elbow room to be a big personality.

Plaintiff lawyers in civil suits, however, have the burden of proof. We can’t afford quite as easily to have have a couple jurors dislike us. In New York, for example, we need five out of six jurors to persevere.

This is the reason many lawyers try so hard to ingratiate themselves to jurors during selection, trying to bond with them over similar ideas and likes. I think it looks horribly superficial and don’t do that, and keep things as straight and narrow as possible. I refuse to dumb things down. My one concession that I do make regarding the issue of being liked, is to wear boring suits so as not to offend.

Now we return to John Edwards. He brings with him tons of baggage. Many people don’t like him, for reasons that go beyond political differences. Like the kid he had with his mistress and lying to his dying wife. Or the circumstances that led to felony indictments over campaign contribution issues. It doesn’t matter that much that he was found not guilty of one and the jury hung on the others. People formed opinions.

There may be no shortage of people willing to say they can be fair that will look down their nose at anything he says. His credibility vanished years ago.

So as a rainmaker or law office manager, yeah, he can do that. But for the sake of the clients, he shouldn’t come near a jury.

(hat tip, Overlawyered)

 

June 4th, 2013

Dr. Robert Israel Slapped with 3-Year Probation Sanction (Updated)

It is unlikely that the name Robert Israel means much to many of my readers. But if you are a practicing personal injury lawyer in New York, it means a whole lot. And the fact that he was just placed on probation for professional misconduct means a whole lot more.

Dr. Israel has been, for many years, one of the most frequent orthopedists that defense firms and insurance companies turn to for medical-legal exams. These are done so that the defendants get an “independent” view of a plaintiff’s injuries, apart from the opinions of the treating doctors. Then he comes in to testify.  It’s fair to say that he has far more experience in the courtroom then the vast majority of attorneys in the country.

How many litigation exams has he done? When I cross-examined him five years ago, he said he was doing 30 of these exams per week; 1,500  per yearRobert Israel Cross (page 20).  He’s testified hundreds of times, and never for a plaintiff unless it was his own patient (page 33). That is a stunning business that also has a remarkable impact on those who’ve brought suit for personal injuries.

And what was he placed on probation for? Well, I wouldn’t be writing this post if it was for getting drunk and tossing his skivvies at a cop. That would be wholly unrelated to his practice and, I think, a cheap shot.

No, he was sanctioned because of his conduct doing these types of “independent” medical exams, which are more properly referred to as Defense Medical Exams.  (Because the docs that do these things aren’t being selected by the court.)

As per the charges against him, it all deals with his conduct performing these medical-legal exams by failing to take adequate, accurate and complete medical histories and by failing to note accurate, complete and appropriate physical exams. This is, as it happens, directly in accord with the testimony I took from him where he botched (deliberately or not, I don’t know) the history of my client, making statements of things that were never claimed in the lawsuit.

(By coincidence, I blogged that trial in day-in-the-life format in 2008. This was part one.)

How many victims were turned out of court due to Dr. Robert Israel’s misconduct?  Only he knows. Maybe. Will anyone turned out of court due to questionable testimony he gave sue him? Intriguing question, glad you asked.

As per the three-year probation agreement that he consented to, online here, he agrees that his:

…license to practice medicine in New York State shall be limited to preclude me from engaging in any practice as an Independent Medical Examiner as of March 2013. I shall not contract or agree to perform, nor perform Independent Medical Examinations.

<long low whistle>

Now here is a big legal issue for all those defense firms and insurance companies that thought they were being so smart in hiring Dr. Israel: The consent order does not preclude him from testifying. He can’t be an examiner for the next three years for sure, but the examination part is done. His records and reports (for what they are worth) are already made. There is no reason he can’t testify, other than the fact he will be (justifiably) torn to bits. But being torn to bits is not the same as being unavailable to testify.

That means there’s a good chance they will all be stuck with him. The insurance companies got the benefit of his exams previously and now they will get the downside. Karma. Sleeping with the devil. Laying down with dogs and picking up fleas. Choose your metaphor or proverb.

Will a judge allow the insurance companies to take a mulligan on the medical-legal exams? Will a plaintiff respond by saying, hey, if you don’t like the guy, let’s re-open all those cases where Dr. Israel previously testified?

Now if a doctor that performed an exam dies or becomes incapacitated during litigation, they would be entitled to another exam since s/he would be unavailable. But Dr. Israel is still available and is not precluded from his regular practice as an orthopedist.

The order goes  into effect this Friday, June 7th.

Update: July 2, 2013: In the comments is a discussion as to whether this sanction can serve as a basis for defendants obtaining a second defense medical exam, and pretending that Dr. Israel is unavailable to testify based on the order. That issue has now been resolved, courtesy of attorney Jonathan Fier who obtained an opinion on the subject from the Department of Health. That letter is here  Robert-Israel-OpinionLetter and states, in relevant part:

“…the order neither bars all testimony nor permits all testimony”

“If licensee, in the future, testifies about acts performed, observations or findings made or opinions and/or diagnoses rendered, respectively, at a time that predates the effective date of the Order, we would not consider that a reportable violation.”

“If, in relation to any Independent Medical Examination occurring at any point in time, the licensee engages in or testifies regarding any further act of observation. finding, opinion, and/or diagnosis (including but not limited to providing his opinion on any subsequent and/or supplemental medical  we would consider that to be reportable as a possible violation.”

 

 

May 29th, 2013

Liability for Boston Marathon Bombings?

So apparently there was a panel discussion held by 500+ lawyer firm Edwards Wildman Palmer on potential liability for the Boston Marathon bombings. You can read an article about it in the National Law Journal here, but this is the lede:

Government agencies probably won’t face much liability from those physically or fiscally harmed by the Boston Marathon bombings, but the race sponsors could prove vulnerable depending on the terms of their insurance policies.

No, they didn’t invite me to participate. But given that I do personal injury work, have run my share of marathons (including two Bostons and 13 New Yorks), and am the founder and race director of a popular 1/2 marathon race, I figure this subject is pretty damn close to my wheelhouse.

So here’s the answer on potential liability: No. As in, it won’t happen, no way, no how, you gotta be kidding me, and I can’t believe there was actually a panel discussion regarding it. Was someone just looking to create topics to burnish their CLE credentials? Did someone need to buff the old resume a bit?

OK, enough snark, this is the reason there won’t be liability: You simply can’t control a 26.2 mile race course in a free society that rambles along public streets in a big city. It’s hard enough just stopping locals from colliding with runners as they push strollers across the course trying to get to breakfast/church/stores; there is no way to control it all.

The cost of trying to implement such control is prohibitive both in cost — all those cops don’t come cheap and someone has to pay for them — and in freedom. We don’t charge people $5,000 to run races and we don’t turn our cities into police states in order to stage events that are designed as communal celebrations of life.

Will there be some changes in big events? Sure. We saw a bunch after the September 11 attack (runners can only bring clear bags into the athletes village at the start and they are subject to search, for example), and we saw some recently in a race Central Park, but this will not stop a determined bomber who will simply find another spot on the route, or a mass transit vehicle, or restaurant or bar, etc. You can’t protect it all, just ask the Israelis.

So BigLaw thinks this is worth a panel discussion. But if calls came to my SmallLaw office from a potential client, they would be unlikely to get get their feet in the door.

(hat tip Overlawyered)

 

May 24th, 2013

Lawyer Faints During Medical Malpractice Trial; Defendant MD Rushes to Assist

HansPoppeWell, you don’t see this every day — a lawyer trying a medical malpractice case passes out in court. Then the doctor that he sued rushes in to assist him. All in front of the jury.

The lawyer in question is Louisville, Kentucky’s Hans Poppe. You can see the video here, as the lawyers are at the bench discussing defendants’ motion for a mistrial.

The case arose from the negligent removal of a cervical collar that had stabilized a patient’s neck after an auto collision, with the patient then being rendered a quadriplegic. He subsequently died from infections at a long-term care facility. The defendants are the surgeon, Dr. Ryan LeGrand, and University of Louisville Hospital.

Aside from the human-interest element of a lawyer fainting and the defendant doctor rushing to assist, there’s an interesting legal issue here.

The defendants had moved for a mistrial because, on day 10 of the trial,  Poppe had played a portion of videotape deposition that mentioned liability insurance. This part was supposed to be edited out. (Many potential jurors ask the insurance question during the selection process, and we are, of course, forbidden to answer. It is deemed to be unfairly prejudicial to the defendant and not relevant to the issues.)

Poppe said that it was inadvertent that the unedited video was used; the defendants claim he did it on purpose to cause a mistrial because the trial wasn’t going well for him. Then the defendants asked for a whopping $125,000 in sanctions and fees, an astounding amount for a malpractice trial and one that strains the bounds of credibility to me.

What is most interesting, however, is that the point of whether the video-malpractice was intentional or not is actually moot in many respects. And that is because a mistrial would have been necessary anyway after the doctor rushed forward, in the presence of the jury, to assist. Life can be funny sometimes and this is one of those times.

I had a couple questions about all this, so I called Poppe. First off, he said that he fainted from lack of sleep, food and water — a situation anyone that ever stood in the well of the courtroom trying a case can relate to. Walking the proverbial high wire in front of  a jury can be enormously stressful, and the vast majority of lawyers can’t/won’t do it.

I asked if the defendants claimed the fainting was a ruse of some kind, and he said that no such allegation was ever made. It would seem, then, that a mistrial was going to happen regardless of the jurors learning about the insurance.

Finally, about that huge $125K request? He said that the hospital had three lawyers on the case. That is virtually unheard of where I come from in a medical malpractice case, and where I come from is lawyer-central. If there are any “extra” lawyers in cases here they are likely to be young ‘uns who are not there to participate, but to watch and learn.

Of course, if the judge thinks Poppe did this on purpose then a sanction might be forthcoming, but I have to assume that a judge would be viewing the entire conduct of the 10 day trial. An isolated act is likely to be forgiven; repeated acts might well be viewed with a different eye. But because the playing of the unedited video would ultimately be unrelated to the need for a mistrial, it seems the mammoth request for fees will be denied.

In any event, a quirky factual scenario with the fainting/assisting, what appears to be a serious legal issue regarding insurance mostly rendered moot by subsequent events, and a defense team with a legal meter apparently running so fast it’s hard to see the numbers fly by.

As I said, you just don’t see that every day.

(Updated 3/11/15: The insurance carrier proceeded to bring an action against Poppe, and this was the result)

 

May 22nd, 2013

Metro-North Derailment/Collision and Attorney Advertising

MetroNorthAccidentBridgeport

Photo Brian Pounds; Stamford Advocate

This post asks lots of questions; it doesn’t necessarily answer them. It might make a decent bar exam question.

At 6 pm last Friday, a Metro-North commuter rail train derailed and was then hit by another one in Bridegeport, CT. Many injured, and thankfully no one killed.

For those that don’t know, this is the busiest commuter railroad in the nation connecting New York City’s Grand Central Terminal with numerous points north (up into New York) and east (into Connecticut). I ride this system almost every day, on the same line where the collision took place, but closer to the city and thus unaffected.

This is a New York train system, with Connecticut owning its the rails and stations on its turf and Metro-North maintaining the entire thing.

Enter, stage right, the lawyers, many of whom would like to sign up the cases, especially since the National Transportation Safety Board will do all the hard work of investigating, and no one can blame the injured passengers.

That means it’s time for some folks to advertise. I’ve written on this subject many times in the past, in the wake of a Metrolink accident in California, a plane crash in the Hudson River and in Buffalo and a Staten Island Ferry collision with a pier. Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters)

PronerAndPronerI did a quick search and, it didn’t take me too long, stumbled on a YouTube ad for the firm of Proner and Proner. A screen grab is to the left. The video part is generic lawyer advertising about what they do and how long they have done it. You will not be impressed.

But.

The web copy under the YouTube ad, posted the same day as the derailment/collision, says:

Metro North Train Accident Bridgeport, CT (866) 209-4366 Connecticut Lawsuit Settlement

And as you can see in the right side bar of the YouTube commercial, there seem to be five such ads. They all appear identical, except for different keywords used in the titles. The law firm marketeers were obviously all over this.

By way of background, before you read the question below, this is New York’s 30-day anti-solicitation rule:

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.

So here are today’s questions, given that this is an accident in Connecticut, not far from the New York border. One train was headed toward New York and one was coming from here:

1.  Which rules on solicitation and advertising govern?  New York has its 30-day anti-solicitation rule for mass accidents. The site of the collision is Connecticut. Do the rules differ depending on the location of the lawyer, the victim or the incident?

2.   Proner and Proner claims to have five offices in New York,  and one in Connecticut.  Yet their website, which I won’t link to, lists only two lawyers. Yeah, I smell marketeers at work here also trying to make a small firm look big. Must they comply with New York’s anti-solicitation rules as they race after Connecticut clients?

3.  Metro-North is a public benefit corporation incorporated in New York.

4.  Is there any doubt the ads target New Yorkers (in addition to others)?

An interesting bit about our rules is that there is a separate area that defines solicitation is (Rule 7.3), making no mention of the location of the client, the defendant or the incident:

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.

And in another that rule proscribing solicitation there is a separate part that is specific to soliciting people in New York:

Rule 7.3(c) A solicitation directed to a recipient in this State shall be subject to the following provisions:

Does that mean that the 30-day rule is for those admitted in New York, regardless of whether the client is in New York?

The thought of this law firm (probably more, I didn’t look) racing on the very day of the collision to get its advertising up and running, no doubt while rescue was still underway, reminds me of the Staten Island Ferry collision of 2011 that killed 11. There were law firms, at the time, racing to put ads in the Staten Island Advance before the late afternoon deadline on the day it happened. People were still trapped on board the vessel. It was just that type of unseemly conduct that gave rise to New York’s 30-day rule.

Will Proner and Proner, or another firm, be the poster child for yet more regulation? I don’t know, but I also have no doubt that an investigation would find much, much more going on than the small snapshot that I write about today.

On a final note, this type of conduct takes places with only a very few firms. Yet, as with most things, it is the outlier actions of the few that tarnish the image of the majority.

My two drachmas for the day.