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?)

January 4th, 2013

Using Sandy Hook Massacre for Law Firm Marketing? (Updated x2)

1/4/13 – Update – this post has been modified where indicated to remove the name of a law firm and add the name of marketing firm. Explanation below.

1/9/13 – Update – The comment might have been left by a “Negative SEO” company trying to use this blog to damage someone else. Explanation below.
———————–

I’ve written before about the dangers of lawyers outsourcing their marketing to others, because marketing and legal ethics are intertwined. Thus was born the simple formula:

outsourcing marketing = outsourcing ethics

But it isn’t just ethics that get outsourced. Those who outsource their marketing are also outsourcing their brains. Why? Because now you have an agent writing on the web on your behalf. The fact that something might not violate the code of professional responsibility doesn’t mean it isn’t stupid and humiliating.

Now comes today’s example. In late December I wrote about a fundraising event for Sandy Hook (12 Miles to Newtown). I don’t need to explain the many levels of horribleness of the massacre of children.

But because the New Jersey law firm of [redacted] apparently outsourced its marketing, this piece of tripe was posted in the comments:

Its a good way to show that, people are still care for each others.
Thanks for this!!!
It was a phase which is gone so now we have to move on.

The writer is listed as haddonfield new jersey law firm, which is obviously the first clue to spam. The second clue is the link to the website embedded with the name. The third clue is the Gmail address of [email protected].

But the final clue is, of course, the meaningless gibberish, which is definable as crap unrelated to the posting. Really now, “It was a phase which is gone so now we have to move on”?

Congrats to [redacted] for having someone write this in their name. Well played gentlemen, well played.

And now an offer to the firm — an idea I poached from Popehat and have used before— if you are willing to cough up the name of your godawful marketing company, I will modify this post.
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1/4/13 Update: Last night Drew Rigler of Impact Internet Marketing in New Jersey contacted me via email, aghast at what had happened. His small company does the Internet marketing for the law firm.

He says that everything they currently do is in house, and that their one attempt to outsource the creation of an app did not work out well. There isn’t anybody overseas that is paid to make comments on blogs. (The IP address for the comment spam says India.)

As I type, he said he is scrambling to find out how this happened. Now you would think that anyone looking to save their skin would claim to be aghast, right? But Rigler had this to say also, in his very first email to me:

I stand by our client and if you wish to drag anyone through the mud, feel free to use my name, my company, but not the great lawyers and team at [the law firm that hired us]. This is in no way reflective of them as a company or a firm.

That is an upstanding comment to make that I simply can’t take issue with.

I expect to update this again after Rigler completes his investigation. Since he (and the law firm) have a vested interest in finding out who did this and why, I expect that I will hear back from them.
———–
1/4/13 Update – Rigler got back to me again to let me know that their current belief is that a “Negative SEO” company was trying to damage the law firm, by dropping comment spam here and hoping that I would write about it. While I know there are bad people in this world — and that such black hat tactics might go on in politics — I never knew that a company could be founded on that principle and then target lawyers for its “marketing.”

And yet, Rigler tells me that such a company had actually pitched its services to one of the lawyers previously, which they obviously rejected, and then two bits of subtle attack popped up. One was here and one was elsewhere (which he showed me). He also gave me a link to the company that does it, which I won’t share so as not to give it any link juice.

Why did this happen? Was it anger by a company whose entreaties were spurned? A competitor hiring it? Someone testing the waters to see what happens? I don’t know.

Caveat Jurista.