January 25th, 2013

Holding My Tongue

Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.

Miller, it seems, wanted to take pictures and video on the Miami-Dade Metrorail. The security guards — a private company called 50 State Security — told him to stop, because it was illegal. He said no, because he knew it was perfectly legal. He got roughed up and arrested for his efforts.

He could have said no, of course, and gone on his merry way. That is, in fact, what 99% of the population would do. It seems like such a small thing to do; just turn off the camera.

But Miller isn’t part of the 99%. He’s part of the 1%. He has a website called Photography Is Not A Crime, where he documented his altercation. You can see the video of what happened. With a website by that name, it doesn’t take a genius to quickly figure out that Miller has an agenda. He risked being beaten up — or worse if things escalated as such things tend to do — for his agenda.

The story buzzed quickly around the blogosphere, so I won’t rehash all the details. You can read them from , Greenfield, Philly Law Blog and many more.

But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.

While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?

I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.

The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.

Two short points: First, clients come first. They always have, they always will. Any practicing lawyer who blogs, and has the burden of proof at trial, has to pick stories very carefully.

Second, about Miller. While it might sound trite for me to quote a commercial when discussing him, I couldn’t get it out of my mind on the long drive back home. Nor could I dismiss the images used in that commercial, of Einstein, King, Ali, Earhart and so many more. The commercial is iconic:

Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules. And they have no respect for the status quo. You can quote them, disagree with them, glorify or vilify them. But the only thing you can’t do is ignore them. Because they change things. They push the human race forward. While some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do.

You can read Marc Randazza’s take on the case for the reason’s why Carlos Miller is a troublemaker to celebrate.

 

January 18th, 2013

Lance Armstrong and Fraud on the Court

Having now confessed to Oprah about doping in order to win seven Tour de France titles, Lance Armstrong is obviously in a heap of legal troubles. Most of those seem to involve his perjury (criminal), defamation of others when he called them liars for calling him a cheat (civil), and a slew of contractual issues regarding his sponsors.

Sports Illustrated gives a decent wrap-up of his legal woes, athletically, criminally and civilly.

But there is another aspect many might miss — by bringing defamation claims against others when they called him a cheat, and knowing that his lawsuits were bogus, he committed frauds on the courts themselves.

The operative case here is Chambers v. NASCO from the US Supreme Court. This decision observes that, independent of any particular statute or rule, a court has an “inherent power” to sanction for fraud or bad-faith conduct. This includes  conduct undertaken “vexatiously, wantonly, or for oppressive reasons.”

That’s a pretty big catch-all provision. I suspect there will be a couple of pissed off judges out there who will have no problem using this rule (or similar state rules) to haul Armstrong before the court. And I expect that this won’t take all that long to happen.

 

January 15th, 2013

Another Day, Another Accident

Car accident, Nov 21, 2012

First off, let me say this: No one was hurt. Regular readers know that I don’t generally write about local car accidents — unless there is an appellate decision or something legally noteworthy about them. But this was an accident that my family was in.

It was the Wednesday before Thanksgiving, and I was in the front passenger seat with Mrs. NYPILB behind the wheel. We made a right at a light from one main road to another. And out of a parking area on our right came an SUV trying to cross the road. Presumably to get to the other side.

Except that we were passing in front of him; and he t-boned us. Right into the passenger side, with the brunt of the force on the back door where my son was sitting, engrossed in a book.

There are several things that might race through the brain at this point, of which these are three:

1. The Parent (Are my kids OK, and how do we make sure there is no further potential for accident or injury?)

2. The Lawyer (The other driver failed to yield the right of way)

3.  The bureaucrat (Closely linked to the lawyer, this one seeks documentation to make sure that the “i”s are dotted and the “t”s crossed with respect to insurance companies.)

Now this is  not the first time I’ve written about an accident that I was in. It happened five years ago when a car with no lights and no license plates stopped in the middle of the parkway at night. I was driving and I stopped in time. One of the cars behind me did not.

The view of the inside, with the door closed, where my son was sitting

And you know what? I’m no better prepared today for being in an accident than I was back then; because accidents are unexpected. If we expected them, well, we have a better chance of avoiding them.

Because they are unexpected, we often don’t really know, at the time of the impact, the answers to the questions that may one day flow if someone was really injured and an investigation or lawsuit ensued.

How fast were you going?

What lane where you in? (How many lanes were there?)

Where did you look in the seconds before the accident?

Where, exactly,  were you?

While that last question might seem a bit silly, it really isn’t, most especially if it is a highway that you have driven  hundreds of times. Your brain might well be on auto-pilot and while you know generally where you are, the exact location isn’t something that you were keyed in to. You might know, for example, that you needed exit 56, and that you were somewhere around exit 30, give or take. You don’t know exactly, because it isn’t particularly relevant.

The reality is that most of our “recollection” of an accident is our brain reconstructing what has happened as we spin our heads around and say WTF? And when we reconstruct things, we tend to fill in the blanks. This is a mental process that I like to refer to has “normal human behavior.” The psychs like to call it reconstructed memory, and will tell you that the brain abhors a vacuum so it provides the filler it believes to be logical.

But it’s odd when your own brain may be doing the the reconstructing, not someone else’s.

This fill-in-the-blanks view of an accident will generally lead to conflicting accounts of an event. People see things through the prism of their own experiences, both past and present and upon review of the event that just took place, and fill in the missing blanks. We may now see mileposts and exit markers, when before we were just driving merrily along knowing that we were roughly 15 minutes from our exit and keeping an eye on the car in front of us. We see intersections and people (aka witnesses) that we hadn’t really noticed or appreciated before. Because the accident, almost by definition, happened very fast and we had no time to react.

And, of course, the adrenal gland has decided that this would be a magnificent time to give the body a good old shot of hormone that sends the heart and mind racing.

After an accident, nothing is normal at all. But that moment when the mind and body are reeling is the moment the brain is imprinted with the “details” of recollection. Since those recollections are experienced through the prisms of our own histories, the lawyer might well “see” something different in an accident than the doctor, mechanic or cop.

All of this is something that the reader likely already knows, on an intellectual level. And yet, when one actually goes through the event, it doesn’t really matter. The god’s eye view of what happened — that fly on the wall view of things — may well be distorted by emotion, by experience and by reconstruction.

I wrote this post six weeks ago and have been sitting on it ever since, hoping I could come up with some kind of snappy conclusion or insight. But I can’t, other than to say that the most important thing is immediate safety. For us, sitting in the roadway after the accident near a busy intersection, that mean moving the car immediately out of danger into the parking area where the offending SUV came from.

I remember my father telling me, when I was learning to drive some 35 years ago, that if I got a flat tire on a bridge that I should not stop. Drive it off the bridge, and to hell with any additional damage to the car. It is, after all, just a car.

Safety first.

 

January 14th, 2013

Personal Injury Lawyers Sue Other Personal Injury Lawyers Over Solicitation

I can’t say I’m sorry to see this kind of lawsuit. Citing unfair trade practices, several Florida personal injury firms have brought suit against their brethren. The problem? Accusations of using “runners” to get clients, also known as ambulance chasing.

The concept of chasing cases has long been a stain on the profession. I know I am not alone in being upset to see our reputations tarnished by the less reputable. Whenever any member of a community acts inappropriately, it affects the reputations of others. Decent cops and priests know all about this concept when they see wayward others from their insular communities in the news in unflattering ways.

Personally, I think outing chasers is a good idea, something that I have written about before (Ambulance Chasers, Runners and Other Creeps). In that 2009 post I wrote:

The message should be loud and clear: If you employ runners to chase cases at the local hospitals you shouldn’t be practicing law. And it should be equally clear that the vast, vast majority of attorneys look down with utter disdain on such conduct. Without question, most of the lawyers that I run into, on both the plaintiffs and defense side, practice law conscientiously and ethically. The corrupt ones should not expect others to come to their defense.

When lawyers practice unethically it tarnishes the entire profession and makes it more difficult to represent those in need of legal services.

According to the brief article I read, these are the firms that brought the suit (in other words, those pissed off at seeing others chase): Lawlor, Winston, White & Murphy in Fort Lauderdale; Metnick, Levy & Long in Delray Beach; Balkan & Patterson in Boca Raton; and Gary E. Susser in Boynton Beach. Suit was filed in Broward Circuit Court on Jan. 4.

Those firms are alleging that the bad guys are: Bader, Stillman & Adler in Margate; Madalon Law Firm in Hollywood; and Gregory Schwartz P.A. in Hollywood are using runners as middlemen to sign up suits.

I am sure that I am not alone in wondering what the evidence will look like. My gut reaction is that the firms that brought suit will have learned of the alleged chasers from clients that they have, who had been approached by “investigators” for the chasing firms. In other words, someone gets handed a business card in a hospital and is pitched on legal services, and the patient goes elsewhere and lets the lawyers that they actually hire and trust what happened before they walked in the door.

The case should be very interesting to watch.

 

January 10th, 2013

Injured In Softball, Teen Gets 2nd Chance at Trial

Your basic L-Screen, which looks like the one described in the opinion

The Second Department yesterday reinstated a case where a 14-year-old was pitching batting practice and was hit in the face with a line drive. The case had originally been a defense verdict at trial. As you read, try to figure out whether this was a question of fact for a jury or an issue of law for the court.

Before hitting the facts of Weinberger v. Solomon Schecter, this is the basic law in New York on primary  assumption of risk, the rule that says you can’t successfully sue someone if injured in an athletic pursuit:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

OK, with that nugget in your back pocket we can look at the facts.

A 14-year-old high school freshman with limited pitching experience was throwing batting practice from several feet in front of the very muddy mound area. The L-screen that was supposed to be used, and was supposed to be free standing, was busted. It was propped up between benches, but kept toppling over.

After it fell over one last time, the teen kept pitching without the screen being used.  Why? There was mixed testimony at trial as to whether the coach told the kid to keep pitching (two non-party witnesses and the injured youth) or asked the kid if she was OK to keep pitching (the coach).

Does the doctrine of assumption of risk come into play here when the line drive slams into this young woman’s face? A bit more on the law…

the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased. Awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.

Is this a question of fact for the jury or a question of law for the judge? The trial court ruled that the issue of primary assumption of risk was one for the jury in this instance and charged that jury that if they found this assumption of risk, the verdict must be for the defense. And that was what the jury did.

Wrong move, said the appellate court. This is a matter of law for the court, and these circumstances didn’t warrant such a finding or such a charge to the jury. The court reasoned that:

The faulty equipment provided by the School and the decreased distance between S. and the batter, from which she was pitching at the direction of [the coach] without the benefit of the L-screen, did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive.

And so the case was sent back for a new trial.

Does this mean the young lady will win? No, it doesn’t. The jury will still get to assess whether she was comparatively negligent in the accident, and that would reduce any potential verdict if such a finding is made.

This is an interesting decision and analysis for any sports related injury. While the inclination of most practitioners is to simply reject such cases outright, there are sometimes certain circumstances that will make you stop and say, wait, that isn’t a commonly accepted risk.

A few other assumption of risk pieces I have, simply because the sports-related injury is interesting:

A Personal Injury Waiver

Reach the Beach Relay (And Assumption of Risk)

The Wife, The Tushy Bone and The Waterpark (Assumption of Risk, or Not?)