July 31st, 2012

Review: Inside Straight by Mark Herrmann

For those of you that don’t know, Inside Straight is a column over at Above the Law written by Mark Herrmann. Hermann is a former BigLaw partner at Jones Day, former blogger at Drug and Device Law, and author of the terrific Curmudegeon’s Guide to Practicing Law. He is now chief counsel for litigation at insurance behemoth Aon, having elected to go in house.

Many of his posts from Above the Law have now been collected in a book format. Given that the focus of the book is the relationship between the legal departments of large companies and BigLaw shops wooing their business, is it worth reading for the small guy in the personal injury field? If you thought no, you would be thinning wrong.

While much of Herrmann’s substance involves the inner workings of that relationship, I nevertheless find the book engaging. (I’m half way through.) And there is only one good reason for that: He’s a terrific writer.

His ability to engage the reader becomes obvious if you attempt to read some of the Above the Law comments that were excerpted from the web site to go with each column in the book. Leaving aside the trashy nonsense comments for which ATL is (in)famous, I found the those who responded on substance generally bored me. It was only Herrmann’s writing that was of interest.

A sample column had to do with how BigLaw sells itself to inside counsel to get the high paying gigs. Herrmann gave the time honored advice that I learned many years ago, “Show, don’t tell.” Which is to say that persuasion comes from marshaling facts, not pretty prose. Telling someone you are a great trial lawyer is one thing; showing them a list of cases you’ve tried and the results is something else.

That advice crosses all lines in sales. Do you want car salesmen to tell you the car is best in class, or do you want them to compare the mpgs, repair rates, and included widgets to others you might be considering?

Since I deal with insurance companies all the time, I do feel in some sense that I’m being given a behind the scenes look at some of the things that go on, and the politics of various relationships.

Herrmann is a good read, and because the book is a collection of blog posts, the chapters are easy nuggets to chew on at your leisure.

July 19th, 2012

Sorry, Dr. Gross, But You’re Wrong (Florida Malpractice Proposal)

In an opinion piece today in the Tampa Tribune, Dr. Lee S. Gross, treasurer of a local county Medical Society and president of the Florida chapter of Docs4PatientCare, advocates replacing the current medical liability system with a type of worker compensation system.

Dr. Gross’s argument, in a nutshell, goes like this:

By eliminating the fear of being sued, the wedge between patients and physicians will be removed, allowing doctors to choose the best health care for their patients. Fewer unnecessary tests and procedures will result in decreased health care costs for individuals, employers and state and federal governments.

The problem with this argument? It’s already been debunked by studies. The biggest study I know of is Texas, which turned itself into a lab study by eviscerating patient rights in 2003 by capping pain and suffering awards at $250,000. Since medical malpractice cases are so difficult to bring and expensive to prosecute, this effectively gave a big helping of immunity to the medical community.

The Texas logic in doing this? That by closing the courthouse door more doctors would come to Texas, whose population was swelling.

And the Texas experiment has now been shown to be a failure. It gave protections and immunities but didn’t do what it was intended to do. I wrote about this two months ago (Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)), and you can read that post if you want more, but this is the summary:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

But that wasn’t the only failure of the Texas Malpractice Experiment. It also failed to control costs. Since Florida’s Dr. Gross thinks reform will cut costs in Florida by eliminating “defensive medicine” tests, it’s worth noting that a different study showed Texas medical costs rose 13% more than the national average after its “reforms” were put in place. The problem, it seems, is that doctors get paid to do those so-called defensive tests.

While it is certainly possible that some docs at some points may practice defensive medicine, the real problem is that costs go up when you have a fee for service system.

And so, if you think that destroying the medical liability system in Florida is likely to lead to lower costs, there is an uphill fight because the data says otherwise. Will doctors make more money? Yes, they will. That happens when income stays the same and expenses (malpractice insurance) goes down. But it won’t help those injured by malpractice who will bear the burden of the injuries and it won’t help lower medical costs. What it really means, is that those injured will have to fight in an administrative forum for compensation, instead of a judicial forum, and do so for compensation that does not make them whole.

And last, a final note of irony: Dr. Gross, as I noted at the top, is part of an advocacy group called Docs4PatientCare. They oppose big government intervention in the healthcare system. Except, I guess, when the big government intervention is to help give them immunities and protections and increase their profits. Then, it seems, it is A-OK.

July 17th, 2012

Taking the Oath

While I was away on vacation, something happened to a friend of mine.

This friend came to our shores over 10 years ago. Her documentation was not, shall we say, in order. Many keyboards have been pounded in other corners of the internet on such immigrants.

She came here to work and make a better life for her family. She babysat, cleaned homes and worked as a nanny. A very, very, good nanny. So good, in fact, that one family offered to sponsor her for labor certification, a first step down the road to green card status. And bank accounts, social security number, driver’s license, and the ability to leave this country to visit family and safely return here. She would no longer be in the shadows.

And she said something to me many years ago that no one had ever said before, when I told her that she would have to pay taxes if she became “official” and went on the books. She said, “But I want to pay taxes.” She knew, perhaps better than those who were born here and take citizenship for granted, what it means to be a member of a society.

About a week ago she paid a visit to Federal Plaza in New York. At this great big building new citizens are born. The time had finally arrived to pledge allegiance to the United States. Not because a teacher in a classroom told her to stand with the rest of the class, look at a flag and robotically recite a pledge. School children can’t possibly understand the significance of those words, unless perhaps, they are war refugees who know what the other side of the fence looks like.

My friend pledged her allegiance, promising to “protect and defend the United States against all enemies, foreign and domestic,” because it meant something to her. She will vote for the first time this November. She takes her place beside you and I, with the sole door closed to her being that of the presidency. All others are open.

I thought about including her name in this short piece, and my association with her. But it occurs to me that while her story is unique, it has played out in countless other iterations over the generations in so many other places.

I’m two weeks late with an Independence Day post. But I think this will suffice.

And I hope that, perhaps, my dear readers will spend an extra moment or two when encountering an immigrant, thinking about what their stories might tell.

June 29th, 2012

Rakofsky Oral Argument on Motions to Dismiss (updated)

Yesterday oral argument was heard on the Rakofsky matter. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is pro hac vice counsel. I will not reiterate the facts. The matter is now before the Hon. Shlomo Hagler, who has written on First Amendment cases in the past.

As a caveat, these are simply brief notes. Argument lasted an hour and 40 minutes and Rakofsky was represented by his counsel, Matthew Goldsmsith. Rakofsky was not present. The room was stuffed with lawyers, defendants, summer associates and others. Probably about 40 or so people packed into a small courtroom.

Since many claims overlapped, everyone did not speak. There was no need. The defendants presented arguments first for an hour, and Goldsmith used the last 40 minutes. By the end, the judge indicated that he was considering sanctions.

The Washington Post went first, as it was the primary source of the blogospheric maelstrom that followed. The Post argued that their two articles were fair reports of a judicial proceeding. Maybe there are syntax issues between the judge’s actual words and their reporting, but this is not actionable.

The American Bar Association went next to argue that there is a republishers privilege for almost all others reporting the WashPo stories, and you need gross irresponsibility to get around that.

The Washington City Paper argued that there was no long-arm jurisdiction for out of state defendants.

TBD.com (Allbritton) argued that there was lousy service.

Randazza waived jurisdiction arguments for many of us (not all), as many want a decision on the merits to preclude Rakofsky suing again in their home states. Those people who live in states with strong anti-SLAPP statutes, however, don’t need a merits decision because if Rakofsky sues them in their home state they have more serious sanctions than New York’s to work with. Our Bannination defendant gets special mention due to a 47 USC 230 immunity argument for an internet forum. Randazza also agued that Rakfosky is a public figure — he tried a murder case and apparently gave at least two interviews to the press — and there is therefore a heightened standard under NYT v. Sullivan.

Defendant Doudna argued no jurisdiction for him as he is an out-of-state defendant, and moved for sanctions (others are awaiting judicial merits decision before making sanctions motion).

Goldsmith gets the next 40 minutes. None of the arguments appeared to sit well with the judge, and it was near the end that sanctions were discussed:

Goldsmith seemed to claim that the statements on their face might not be defamatory, but that the way they are phrased is. For example, that the mistrial was not declared due to Rakfosky incompetence, but because Rakofsky asked to be relieved as counsel. The judge wanted the actual statements that were claimed to be false.

Goldsmith tried to claim that it was defamatory to claim Jackson was “astonished” by the incompetence. Justice Hagler, however, reads the Jackson transcript into the record for our case. He also quips that he is reading it “because I don’t want to get sued” if he messes any part up. Laughter in the courtroom.

There was much argument by Goldsmith trying to claim that the mistrial was because Rakofsky asked to be relieved, not because Deaner fired Rakofsky. But the judge has the transcript and the transcript is clear that Deaner wanted a new lawyer, even though it meant prolonged incarceration while he awaited a new trial.

Justice Hagler noted that Jackson was “verbose” in his condemnation of Rakofsky. If Rakofsky’s conduct is unrelated to mistrial, why did Jackson spend 2-3 pages on it? Goldsmith tried to claim that this was mere dicta. But what does it matter to the defamation claim, the judge wanted to know. Rakosky didn’t suffer an injury because of a mistrial, but because of comments about his competence and ethics.

There was much discussion of the “trick” email. After Goldsmith gave Rakofsky’s version of events — that “trick” only meant to hide the identity of the investigator — Justice Hagler asked, “Trick is the same as truth?” Goldsmith conceded that the email was sent by Rakofsky.

Goldsmith tried to argue that linking to WashPo made everyone liable in NY because WashPo does biz in NY and has commercial purposes. Justice Hagler: “That would change the very fabric of the law if it were true.”

After going through claims of prima facie tort and intentional infliction of emotional distress and civil rights violations, Justice Hagler pressed Goldsmith on the questions of whether all the causes of action were inextricably intertwined with the defamation cause of action. Goldsmith said he was simply pleading in the alternative. This concept came to a head with the negligence cause of action. What duty is there? What breech? What injury? Justice Hagler: “To say this is negligence is beyond the pale of professional practice.”

The judge strongly suggested he withdraw duplicative claims as there was a good case for sanctions. Goldsmith was unable to demonstrate a basis in law or fact to make that claim when asked.

The judge gave Goldsmith time to speak with Rakofsky to see what they would withdraw, cautioning the plaintiff: “I don’t think you’re going to like my decision.” He speculated aloud that he might find himself making decisions based on Rakofsky’s competence and ethics.

Final note for the non-lawyers who may be reading: The fact that judges ask certain questions and appear to develop a disposition as they learn the facts and parry with attorneys doesn’t mean that they will rule in the way you think. We saw that yesterday — when Chief Judge John Roberts voted to uphold President Obama’s health care law despite asking critical questions from the bench during oral argument. Judges, sometimes, surprise.

Decision and order granting the motions to dismiss (updated 5/12/13)

June 28th, 2012

Trips and Falls (And Expectations)

There are some folks who think that all trip and fall lawsuits should be dismissed outright. This short posting is designed to change their minds. The linked video should help.

The logic behind dismissal is well known to every lawyer that ever represented someone tripping on a defect. There are two fundamental defenses, regardless of the condition of the street, stairs, walkway:

1. The defective condition was open and obvious, and therefore it should have been seen by the person that was injured; or

2. The defect was de minimis, that being too small to be actionable.

But here’s the thing, the way we walk is governed by the actual ground we cover. Our eyes and brains don’t tell us to walk the same way across a rocky trail that we do across a marble lobby, or a set of stairs. When we perceive dangers, we react differently. This is normal.

And what happens when we perceive a normal walkway or set of stairs, but a defect is there? What happens when our expectations are confounded? We have a trap.

Courtesy of Niki Black, comes this short video posted yesterday by Brooklyn filmmaker Dean Peterson: A “normal” set of stairs for a New York City subway line (36 Street station, served by the D, N and R trains), except that one stair is actually a different height. I don’t know how many people have been hurt here, but if this defect still exists, you can bet there are accidents waiting to happen.

And so, if you are one of those people who are always so quick to blame the victim for not watching where they are going,this video will hopefully be food for thought.

Updated: The video caught the attention of NBC news, which measured the defect at 1/2″, and quoted Peterson on the trap:

“My girlfriend and I would walk up all the time, and we would always trip,” he said. “We just thought we were kind of klutzy. But then I kind of noticed that other people were doing it, too.”

Because of the video and bad press (and 300,000+ views on that video), the MTA is now fixing the problem. It would certainly be interesting to know how many people were hurt there, and how long this existed, before they snapped into action.