September 5th, 2012

Bill Clinton as Trial Lawyer

I’m sitting here watching Pres. Bill Clinton speak at the Democratic Convention and one thing leaps out at me: he would be a masterful trial lawyer.

Why? Because he doesn’t just stand there and make assertions. Rather, he makes his assertions and then backs them up with facts. If you have the burden of proof, that is what you must do. I saw him speak once five years ago, and it was just the same. Everything backed by facts.

Most politicians, of course, don’t have that kind of mastery of facts. Or lack the confidence to use them. Or don’t trust the intelligence of their audience.

But Clinton does. Time and again returning to the theme of ‘Don’t take my word for it, this is what the actual facts are.’

If you want to convince people of something, you have to be prepared with your material and lay bare the facts, pure and simple. And no one does it better than Clinton.

Update: I’m obviously not the only one to come to this conclusion. Fox analyst Brit Hume said after the speech:

“I’ve always said if I were ever in trouble and if I were guilty, especially if I were guilty, I would want Bill Clinton there to defend me. Nobody does it better.”

Hat tip on the back-handed compliment from Hume to Kashmir Hill.

August 31st, 2012

Did Paul Ryan Lie? (About His Marathon Time?) -updated

Did this man run a sub-3-hour marathon?

I try to stay away from political races on this blog unless it goes to the issue of tort “reform,” which I cover often. If I get started down that road, I might never stop. But Paul Ryan, Republican Vice-Presidential candidate, may have been telling a tall tale that needs addressing here.

No, not during his speech the other night, for which he has been crucified for falsehoods and misrepresentations. I leave that to the political blogs.

But when it comes to running — a topic I write about every so often just because I feel like it and it’s my blog and I get to do that kind of thing — the subject gets serious.

Ryan, it seems, claims to have run Grandma’s Marathon (Duluth, MN) in 1991 in under 3 hours. If true, that is a very nice athletic achievement and a race to be proud of. According to this Runner’s World story:

In an interview with radio host Hugh Hewitt last week, Republican vice presidential nominee Paul Ryan said he’s run a sub-3:00 marathon.

In the interview, after Ryan told Hewitt that he ran in high school, Hewitt asked if Ryan still runs. Ryan replied, “Yeah, I hurt a disc in my back, so I don’t run marathons anymore. I just run ten miles or less.” When Hewitt asked Ryan what his personal best is, Ryan replied, “Under three, high twos. I had a two hour and fifty-something.”

Runner’s World, however, says that the actual facts don’t seem to back him up. They can only find a race time of 4:01:25. That is certainly nothing to be ashamed of, but running a 4-hour marathon isn’t the same as running sub-3-hour. Not by a very long shot.

If the story is true — that is to say he never did what he said he did — then I think we have a very troubling candidate. Telling lies in political races have come to be accepted, though the candidates and their minions should all be ashamed of doing it. But telling casual lies about your marathon time? That, my friends, is a race we take seriously.

Updated: As per Jeff Gamso in the comments, Runner’s World has now done an update after hearing from Ryan’s office and they confirm that the sub-3-hour claim was a fiction.

August 30th, 2012

The RNC Tells A Whopper

I suppose I should be used to by now: A political party making statements that are demonstrably false. And yet it continues, perhaps because those that value the falsehood make political contributions in order to perpetuate it. If you tell a lie often enough, people will believe it.

And so we turn to the Republican National Committee’s political platform and we look up what they have to say about tort “reform.” And what do we find? Rehashed falsehoods disproved by empirical evidence.

Let’s leave aside, for the moment, that the very concept of giving Big Government immunities and protections to those that injure others runs directly contrary to conservative political philosophy. Let’s deal with simple accuracy today, and turn directly to the Republican platform as it applies to tort “reform:”

Frivolous medical malpractice lawsuits have ballooned the cost of healthcare for the average American. Physicians are increasingly practicing defensive medicine because of the looming threat of malpractice liability. Moreover, some medical practitioners are avoiding patients with complex and high-risk medical problems because of the high costs of medical malpractice lawsuits. Rural America is hurt especially hard as obstetricians, surgeons, and other healthcare providers are moving to urban settings or retiring, causing a significant healthcare workforce shortage and subsequently decreasing access to care for all patients. We are committed to aggressively pursuing tort reform legislation to help avoid the practice of defensive medicine, to keep healthcare costs low, and improve healthcare quality.

The platform deals primarily with three issues:

Frivolous malpractice suits
“defensive medicine”
Lack of doctors in rural areas.

First, frivolous malpractice suits are losers. Because of the contingency system, those lawyers that bring them are destined for bankruptcy. They are marked “no pay” by the insurance carriers, vigorously defended by some of the best trial lawyers around, and any one foolish enough to bring them will find himself at the door of the bankruptcy court. Are there occasional frivolous suits? Of course. In a nation of 300 million people you will find frivolous business suits (biz brings 4x as many suits as individuals), Orly Taitz birther suits, defamation suits and all other kinds. But there is no data to confirm that the isolated cases are a major problem for society.

The issue is tough to study in the medical malpractice context by merely looking at medical records, since medical practitioners aren’t too keen on documenting their mistakes. Often, there is a simple question of fact for a jury: The patient says they made a complaint (lump in breast, floaters in the eye, etc.) and the doctor said not to worry.

But a study was done that showed most malpractice suits came from very few doctors. The study has been around since George Bush was president, yet it doesn’t seem to stop the perpetuation of the hoax of a malpractice crisis.

Next up, the concept of “defensive medicine.” That was disproved in a recent study in Texas, in which costs went up faster than the national average, despite brutal “reform” that closes the courthouse door to so many.

Which brings us to the last claim, that of a lack of doctors in rural areas. Well, it seems that doctors (and many others) don’t like to live in rural areas and want to live in the big cities and suburbs. But that isn’t because of malpractice cases. This too, was disproved by the Texas 2003 experiment in “reform, as more doctors did not come to Texas on a per capita basis in response.

When Mitt Romney speaks tonight will he repeat the falsehoods? There are just two reasons he might do so:

The healthcare and insurance businesses are some of the biggest in the nation, and they give tons of money to politicians;
Bashing lawyers is fun for the general public, because when we set forth the evidence in response to false statements we sound, well, like lawyers.

August 23rd, 2012

NYC Marathon Cancels Baggage Check (Legal Fallout?)

Verazanno-Narrows Bridge at the start of the NYC Marathon

Ahh, running and the law, my sweet spot. Before going on to read this story about the New York City Marathon, I need to tell you that I am planning to run this November for the 14th time. I once did a Blawg Review devoted to the event and had a letter published in the New York Times regarding this magnificent piece of urban theatre. My passion for the event, however, will not temper my comments here.

In the news today, the NYC Marathon decided to cancel its baggage checking at the beginning of the race. And legal problems could result by killing off a service that had been promised, and on which participants relied, when signing up for the race many months ago.

This is the way the service has worked in years past: Runners show up at Fort Wadsworth in Staten Island, sitting at the base of the Verazanno-Narrows Bridge. We arrive by buses and ferry and private cars hours before the event start, because you can’t have 40-50,000 people arrive at the same time. It is a logistical issue that gets coordinated with military precision.

Runners bring many things to this village, including extra clothes to wear in the early morning November chill, as well as dry clothes for the end of the run. Many will bring disposable clothes for the start — I’ve made many a trip to the Salvation Army in the week before to buy a few items that will be discarded as the canon booms for the race’s start.

But the clothes needed for the end of the marathon are what’s really important (not to mention car/house/hotel keys, phones, cash,metro cards, etc.). Once the body cools down at the end of 26.2 you will still wearing wet clothes, socks and sneakers. Any commute longer than an hour is not something you want to be doing while dressed like that.

Because those dry clothes are so valued, runners check their bags on dozens of UPS trucks in the staging area to be reclaimed later. And that leads to the finish area of the NYC Marathon being turned, each year, into the world’s largest locker room as runners strip down and change.

Now that service is gone, and runners are stuck in the wet, smelly clothes. If you live on Manhattan’s Upper West Side and are walking home it isn’t a big deal. But most don’t. And the only solution to the keys/phone/cash problem, is to carry them during the race, which few people really want to do.

The reason for killing off the service is that, at the end of the race in the tight confines of a Central Park roadway, it could take a good 30-45 minutes to retrieve that checked bag. The walk will be another mile, on top of the ones you just ran, as you wind your way through the finishers chute getting food, water, finisher medals, heat shields, medical attention and finally to the endless line of UPS trucks and the lines at each truck waiting for the bags.

The New York Road Runners Club, which puts on the event, has found this logistical nightmare to be too much, even when pulling trucks out of the park last year to use side streets. As they expand upwards to the 50,000 runner barrier – and perhaps beyond in the year to come — they can no longer manage. They either cap the growth of the event, or kill the baggage check.

Because they decided to kill it they will offer to the runners a one-size-fits-all fleece hooded poncho in the finish area. But that only covers up the now-disgusting clothes that are glued to the body; it doesn’t get rid of them.

Is there a legal angle here? I think so. Runners pay a hefty fee to run this race, $216 this year. And one of the things they knew they were getting was the transportation of their clothes, cell phones, wallet, etc. Some stuff can still be stuffed in pockets for those of us who are non-elite, but many really don’t want to carry anything for the race.

Does this lead to a potential consumer class action on behalf of runners? That is certainly a possibility, because they have not offered runners the option of cancelling and getting their money back due to the policy change. According to Business Week:

There will be no reimbursements for runners who don’t agree with the policy change, said Richard Finn, a spokesman for the organization.

Runners, after all, paid for one thing and will receive another. If they wanted to make this change, it was something that should have been announced before registration was opened up.

One other note on my running credentials, I’m also the founder and Race Director of a half marathon trail race just north of New York City. The idea of not having a baggage check is unthinkable to runners. We even have the showers at ours (since we finish at a High School, we use the locker room). I know what it means to runners, both as participant and race director, to have such services.

If you go to Twitter right now, you will see it lighting up with complaints. Mary Wittenberg, the CEO of the New York Road Runners (and former BigLaw attorney and marathon champ), invited comment at #NYRRListens and has been getting an earful. A few select comments:

From @ashlyntastic @INGNYCMarathon There’s nothing I dislike more than marinating in wet running clothes post race. #NYRRlistens

From @arunninglifetc This organization isn’t about serving the runners anymore, not when you don’t listen to the runners. #NYRRListens

From ‏@mldemmons SUPER excited about being soaking wet in 50+ degree weather after running 26.2 miles in November in NYC! #NYRRlistens #NoTheyDont

From ‏@UrbanRunr Makes no sense for a race in Nov. I’ve never been so cold as after my first NYC. People need their dry clothes after. #NYRRlistens

Someone, somewhere, may elect legal action. (And no, it won’t be me.) Whether it succeeds or not is another story, but clearly the better move would have been to implement the policy change before people started to pay their money.

August 21st, 2012

When your auto insurance isn’t really insurance

This op-ed by New York Assemblyman Matt Titone was published yesterday in the Staten Island Advance. He’s granted me permission to republish it. By way of full disclosure, I’ve lobbied the Legislature in favor of the pro-consumer bill that he discusses here:
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When Victor and Wilma Rao were hit by an alleged drunken driver in February, their world was torn apart.

Wilma suffered broken bones and bruises, and she was the lucky one. Victor was in a coma for a month, lost the use of an eye and an arm, and is still recovering from his injuries in a nursing home many months later.

The Raos expected that their car insurance would pay for the high pile of medical bills they have incurred while recovering from this terrible accident.

But there was a problem. The Raos had car insurance, but the driver who caused the crash did not.

While the Raos had responsibly purchased $100,000 in liability coverage, they did not know that they also needed to purchase additional Supplemental Underinsured Motorist (SUM) coverage to be protected if the driver who causes an accident does not have enough insurance himself.

Never heard of SUM insurance?

You are not alone – and that is the problem.

Many New Yorkers who buy car insurance have no idea that unless they opt to increase their SUM coverage, they will only be covered with the legal minimum of $25,000 – far less than the costs of a long recovery like the one that Victor Rao is only now completing.

Too many families find out about the critical need for proper SUM coverage only after it is too late. But new legislation in Albany (A.10784) could change that.

The SUM bill would require insurance companies to automatically offer SUM coverage at the same level as the liability coverage that drivers purchase, unless the driver himself chooses to reject additional SUM coverage after being informed of its benefits and low costs.

The SUM bill has been passed by the Assembly and the Senate and is now on the way to Gov. Andrew Cuomo’s desk.

Many states have similar laws, and it is well past time that New York drivers have the same rights to make informed choices when buying auto insurance.

As Wilma Rao told the Advance recently, had she and her husband known about the option of buying additional SUM coverage when they purchased their auto insurance, they would have “signed on the dotted line in a heartbeat.”

Thanks to the help and enormous generosity of their neighbors and the entire Staten Island community, the Raos will make it through their ordeal.

But drivers who purchase insurance should not have to rely on charity – they should be able to make informed decisions and purchase the insurance they need to be protected, even if the other driver in an accident is not.

As a member of the state Legislature, I urge Gov. Cuomo to sign this important consumer protection legislation into law, and I would urge all New Yorkers to call on him to do so.

[The writer represents the 61st Assembly Distrtict in the New York State Assembly.]