December 18th, 2012

Overstating the Case and the Sandy Hook Massacre

A graphic that shows one way to overstate an argument -- go ahead, try to buy a machine gun and see how far you get.

I’ve had a strong impulse these past few days to add my two cents on the Sandy Hook massacre and the subject of our gun culture that allows easy access to the mentally unstable, criminals, drunks, angry spouses, terrorists and more. Most that have written seem to focus on whether this horror could have been avoided.

Since I’m not a “me too” kind of blogger, I hesitated.

But in reading some of the arguments, one thing jumped out at me that I see through the eyes of someone trained to persuade: Many of those making arguments vastly overstated their case. And when you overstate your case, as any lawyer that’s argued in the well of the courtroom knows, you destroy your credibility with respect to other arguments.

So let’s take two sample arguments related to Sandy Hook and gun control. First, there is the magnificent stupidity of Megen McArdle writing at the Daily Beast. She argues, in the face of clear evidence to the contrary, that there’s little we can do to present a future massacre. Given that no other industrialized nation in the world has as many guns and as many gun deaths, this is clearly false.

In 2008, for example, we had over 12,000 gun deaths while Japan had 11. We obviously can do something; the question is whether we choose to do so. The more regulation we have over firearms and their owners, the more difficult it is for homicides of passion, mental instability, or money to take place.  Fewer guns = fewer gun deaths.

McArdle makes the vapid argument — made by others I might add — that laws won’t stop all gun deaths.  She writes, “it’s unlikely that 100% of potential spree killers would be identified before they picked up a gun.” No kidding.

But that ignores the societal benefits of reducing the number by 25%, by 50%, by 75%. Laws will never stop all crimes, but they can reduce them, and thereby reduce the number of innocent deaths each year.

Here’s a clue to listening to an argument: When someone makes claims for all or nothing positions, they are usually building strawmen to easily knock down. Even if she had a legitimate point to make somewhere, her credibility is shot.

But after going through various excuses on why this massacre couldn’t have been stopped — and ignoring the 10,000+ others each year — she let’s loose with this imbecility, that will likely haunt her for years to come:

I’d also like us to encourage people to gang rush shooters, rather than following their instincts to hide; if we drilled it into young people that the correct thing to do is for everyone to instantly run at the guy with the gun, these sorts of mass shootings would be less deadly, because even a guy with a very powerful weapon can be brought down by 8-12 unarmed bodies piling on him at once.

I find my self continually amazed at those that think the answer to the gun problem is figuring out how to take down the guy after it’s already started, instead of making it difficult for him to get started in the first place.

Now on to the other side. See that graphic on this page, showing the stupidity of laws that make machine guns legal while certain French cheeses are illegal? Dumb, dumb, dumb. Machine guns aren’t the problem because access to them is so highly restricted.

Whoever created it effectively changed the subject away from the point sought to be made. Some machine guns apparently can be possessed, as you can see from this place in Utah,  that advertises you can shoot them on their range:

Many guns are available to rent at Doug’s. If you want to try out a handgun, a 22 rifle or a machine gun we can make it happen. Regular firearms are
$10 for the first gun and $6 per gun thereafter. Machine guns are $20 and include assistance in the range from one of our staff.

But it is pretty clear that they are not widely available because they are severely restricted if not outright outlawed in the state. Good regulations, you see, prevent widespread abuse.  (This is actually a fair argument for the pro-control crowd.)

With 20 small caskets going into the ground along with teachers, gun control advocates don’t need to overstate the case. They only need to set forth the facts — including the vast numbers of annual gun deaths in the U.S. — because the facts are horrible.

If you want to persuade, don’t overstate. Don’t sacrifice your credibility, for if you do, the rest of your arguments won’t be persuasive. They won’t be persuasive because you’ve lost the audience.

 

December 13th, 2012

Dog Bites Breast; Does Auto Insurance Cover It?

My dog; not the offending one. I needed art. He posed.

I know what you’re thinking; you think I put “bites breast” in the subject heading just to grab your attention. Nah, would I do that?

In fact, a dog inside of a car poked its snout through an open window and did bite the breast of a passing woman. And I presume it hurt quite a bit because there is money up on the table and an interesting judicial decision to go with it.

The issue came to a head this week in Allstate v. Reyes, in Dutchess County.  The car, with the dog inside and the window partly open, was parked in a “No Parking” zone when the woman was bitten.   The owner of the car, through his insurance company, ponied up the $25,000 policy that he had.

But the injuries — not listed in the decision — were obviously pretty substantial as the bitten woman then filed for arbitration against her own insurance company under it under-insured motorist claim provision. This is an endorsement on your policy that comes into play if the car that smashed into you (which is what usually happens) was carrying insufficient insurance for your injuries.

But this wasn’t a car accident, it was a dog bite. Did this injury occur arise out of the ownership, maintenance or use of the under-insured vehicle?

Want to take a guess? I’ll wait…

And the answer is, according to Dutchess County Justice James Pagones, yes. It did arise out of the use of the vehicle. Why? Because:

…the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of [the owner’s] vehicle to haul the dog and [the owner’s] act of permitting the rear window to remain open. It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries. [emphasis in original]

Justice Pagones made a point of italicizing that the conduct did not have to be the proximate cause, it only needs to be a proximate cause. And that is because an injury might result from multiple caues.

One interesting twist on this case is this: If this was just a dog bite case, the concept of negligence wouldn’t exist. In New York, we have strict liability for animals with a known dangerous propensity. This is part of the infamous concept of “one free bite” — a concept that isn’t 100% accurate — that gives an owner notice of danger. So if there was no additional insurance through the under-insured endorsement, it would be impossible to obtain a judgment against the dog/car owner for simply the dog bite unless you could prove the dog had a nasty history.

Will you ever see this fact pattern again? Hell no. But I appreciate good judicial reasoning in an off-beat case.

 

December 13th, 2012

Tort “Reformers” Whine (Again) About Trial Lawyer Influence (#Hypocrisy)

In today’s New York Law Journal is another in a never-ending series of stock articles about big business whining about trial lawyer influence in the legislature.

This is the lede:

ALBANY – Bemoaning the clout of trial lawyers on New York government officials, a business-oriented group said yesterday that the lawyers spent nearly $20 million in the last six years to influence public policy.

The Lawsuit Reform Alliance of New York reported that personal injury law firms and individual lawyers made $8.2 million in campaign contributions while the lawyers’ political action committees chipped in another $6.5 million between Jan. 1, 2006, and Nov. 26, 2012. Additionally, the lawyers’ groups spent $6.3 million on lobbying.

Really? How pathetic.

Shall we now tally up the amount spent by massive health care conglomerates? Insurance companies? Real estate and construction companies?

The answer, of course, is yes!

But I don’t have to really write a post about that, because I already did it earlier in March of this year:  Trial Lawyer Lobbying in Albany (A lot or a little?)

It would be nice if the press, when faced with these silly press releases from big business, that parade as news, would actually try to do a little apples-to-apples comparison of political contributions. Because if they did so, they would see that the forces of the big business and the Fortune 500 swamp those of consumer groups.

This is one of the two graphics I used in my piece from March. Note that the lead contributor, the comically named Committee to Save New York, is a consortium of real estate developers. And also note that this is only lobbying money, and does not include campaign contributions from companies or political action committees:

 

 

 

 

December 11th, 2012

The Holiday Card. With a Twist.

We are accustomed at this time of year to holiday cards finding their way to our doors and email boxes. Invariably, they present gauzy Christmas or winter themes of trees, snowfall or visions of peace.

And then United Process Service sent one to me. As you can see at right, the cover of the card doesn’t present elves, sleds, stars or toys. It presents devastation from Hurricane Sandy.

This is not, quite obviously, what people expect to see in a holiday card.

Each Christmas season Above the Law has a card contest that features a variety of innovative ways for law firms to send their greetings to the world, usually in electronic form since it expands the possibilities of creativeness. They are looking for clever, for funny, for cool.

Here’s a nice selection from 2010, including an electronic twinkly one from Gordon & Rees. As the WSJ Law Blog notes, Pillsbury Winthrop did a cute little stab at legal disclaimers in 2008. You can find lots of other fun little cards on those pages, as well as in other year’s contests.

Above the Law announced yesterday its fourth iteration of the contest, with highlights of some past cards. As one of its rules, the card has to be an e-card. The United Process came to me snail mail.

So United Process is not going to win this contest with their card. Nor do I think they were trying. Nor do I think they care. That hardly seems to be the point. It is not funny, or clever, or cool. It fails every test of what a holiday card should be.

But sometimes a card comes along and clubs you over the head and says, in polite terms, “Go count your blessings, dammit.” This is that card.

And this is the greeting on the inside — it will not win any awards for prose, but it makes its point crystal clear:

 

 

December 6th, 2012

The Subway Pusher and Media Hypocrisy

Photo by Janis Krums, used without permission under doctrine of Fair Use.

In January 2009 when Chesley “Sully” Sullenberger splash landed a plane in the Hudson, the first picture to emerge was placed on Twitter. The photo was shot by Janis Krums, who was on a ferry that was first to reach the downed plane. At the time it was taken, neither he, nor anyone else, knew what kind of tragedy might await the passengers. Passengers stood on the wing with the icy waters beneath them.

Krums tweeted at the time:

“There’s a plane in the Hudson. I’m on the ferry going to pick up the people. Crazy.”

The WSJ wrote of the photographer, “Notch another win for citizen journalism,” and the Daily News called his 15 seconds of fame “well-deserved.”

Fast forward to this past week and another photo taken amidst a potential tragedy. Ki Suk Han was pushed onto the subway tracks as a train approached.  R. Umar Abbasi snapped a picture of Han before he was hit by the train and killed, which the NY Post put on the front page. Because that is what the Post does.

In contrast to the Twittering Krums, Abbasi said that that he ran as fast as he could toward him, snapping photos with his arm extended,  partly to signal with his flash to the driver and partly because he thought whatever photos he could manage might help police later on. He didn’t bother with the viewfinder.

Two pictures taken at two different events that could have turned tragic at the time the photo was taken. You would think that the photographers would be treated the same, right?

Actually, no, they shouldn’t be treated the same. Krums not only took the picture, but then went to Twitter and knocked out a tweet while a tragedy was potentially unfolding in front of him. At the time, I wrote:

Why, on godsgreenearth anyone would think this is a “well-deserved” “win” of any kind and relevant to any serious issue of news reporting is beyond me. Why would it matter that someone twittered about a loaded airplane going down in full view of thousands of people on the edge of the biggest city in the country — other than to the guy who took the picture and spent his time twittering it to friends? Did Twittering save lives? Of course not. Rescue was already in progress.

While Krums was being lauded as a celebrity, I wanted to know why the hell he was spending time on his iPhone instead of asking the crew what he could do to help, getting life vests ready to toss overboard, looking for survivors in the frigid waters, and looking around to see where, if at all, there might be lifeboats that he might need to assist with. Obsessiveness to technology can also mean the difference between life and death.

But it was Abbasi, not Krums, who was vilified.

Al Roker said on The Today Show:

“I’m sorry, somebody’s on the tracks, that’s not going to help,” he said during the segment. “Try to get them off the tracks,” he added, a hint of disgust in his voice.

From James King in the Village Voice:

The Post just happened to have a photographer at the same subway stop at the exact moment when the man — identified as 58-year-old Ki Suk Han, a Queens father and husband — was pushed to his death.

The photog, Umar Abbasi, opted to help Suk Han escape a certain death in a rather unconventional way: by snapping photos as the train was barreling down on him.

And John Cook From Gawker (re-pub in Slate)

“amazing Post photog R Umar Abbasi took a focused composed pic of man abt to die on subway even tho he says he was just using flash to warn.”

Those are a few I found in 10 minutes of looking; there are more.

But the question that the media, and media critics, need to ask is this: Why are these two photographers treated differently in the public eye? Why was Krums given a free pass when so many jumped to conclusions about Abbati?

There is something very wrong with this picture.