June 23rd, 2012

Alec Baldwin v. Paparazzi

The other day Alec Baldwin was in a bit of a fracas here in New York. Seems he wanted to go get a marriage license and the paparazzi swarmed around him. This led to pushing and shoving and Baldwin quite possibly slugging one of them, Marcus Santos. Quite predictably, there were good pictures for the photographers that instigated the incident and headlines. They succeeded in creating news.

So if one of the photographers gets slugged, can s/he successfully sue Baldwin?

To appreciate whether the slugee is really a victim, we turn first to Scott Greenfield at Simple Justice for a rundown on how this all works in his Paparazzi Primer:

Photographers standing with their back to the courthouse door, making it impossible for you to reach the handle, open the door and enter, without pushing them out of the way. And they won’t move, but just keep snapping pictures. And they won’t be pushed gently, but will stand their ground…

Photographers creating a phalanx into which a person walks to get to the place he needs to be, which then closes in around him and stops, making it impossible for the person to move, whether forward or even backward. They will not move, and leave the person no choice but to stand there or push his way through….

He has much more, and terrific video of the press swarming and shoving Bernie Madoff to get pictures.

So here is my analysis: The most basic instinct in the animal kingdom is that of survival. When cornered, an animal has the choice of fight or flight. If the cornered animal is a human, and the cornering animal is a photographer, then either reaction will make for great pictures and the fabrication of news.

But it seems impossible to me to blame the cornered animal for doing what comes naturally…protecting himself. If a celebrity lashes out at a swarm that has cornered him (or her) that reaction falls well within the orbit of animal instinct to survive.

So, it may be the job of the paparazzi to act like a-holes because that is how they get their pictures and pay their mortgages. But they have no cause to complain when the cornered animal predictably and instinctively reacts.

If you’re looking for a lawyer Mr. Santos, don’t call me.

June 17th, 2012

Watergate, 40 Years Ago Today (And Some History In My Office)

H.R.Haldeman on the witness stand. Judge John Sirica on the bench.

It was 40 years ago that an apartment complex in Washington DC became famous for a burglary. And since then, media types have tried to attach -gate to any potential scandal. The purpose today is not to write about the scandal itself…a quick look at the Wikipedia entry I linked to will give viewers a refresher course — but to its significance to me.

As it happens, I have a small piece of that history hanging in my office. They are four sketches from the trial of White House aides H.R. Haldeman, John Ehrlichman and former attorney general John Mitchell, two of which you see here. The others are at my website.

I acquired them from the grateful widow of the artist, John D. Hart, after trying his medical malpractice case to verdict 20 years ago. Back in the day, Mr. Hart was an accomplished artist whose works are in the permanent collections of a couple museums.

And each day I look at these drawings, and each day appreciate the concept of governmental abuse of power and the arrogance of so many that hold positions within it. But also, I appreciate the power of the jury to hold the people involved accountable.

Six jurors listening to the Watergate tapes

June 15th, 2012

Apple, Siri, Distracted Driving and the Future of the Automobile

A CNET mock-up of an Apple device integrated into a car (though I expect Apple will do a hell of a lot nicer job than this)

Two movements are rapidly coming together and will go head-to-head in the coming years:

First is the push to ban driving while on a cell phone — even if it’s a hands-free device. This is due to so many accidents occurring from distracted driving. There are 10 states that already ban it. The problem is not with drivers taking their eyes off the road, but a failure to concentrate. The National Highway Transportation Board wants to ban it in all 50 states. A sample story is here, that includes some data:

According to the National Highway Transportation Safety Administration, more than 3,000 persons died in 2010 because of distraction-related accidents, National Transportation Safety Board Chairman Deborah Hersman said last December in calling for a 50-state total ban on the use of cell phones and other portable electronic devices. “It’s time to stand up for safety by turning off electronic devices when driving.”

Now contrast this to the rapid movement of technology, with Apple at the forefront. Just days ago they announced that they were ditching Google maps in favor of their own, and that these would be incorporated into future cars, including BMW, General Motors, Toyota, Mercedes-Benz, Honda, and Audi.

What does that mean? It means that drivers will be able to use Apple’s Siri voice system to input destinations, and Siri will respond without the need to punch in data. From CNET on the announcement:

The new button should be a welcome change for drivers who are used to manually entering their destinations into a GPS, or laboring through complicated voice-activated menu trees to perform simple tasks, like changing the radio station or placing a phone call. By leveraging Siri’s natural language voice control platform, theoretically drivers will be able to keep their hands on the wheel and their eyes on the road to minimize distracted driving.

With Apple integrated into the car, it seems likely that such devices would also include the music that people have on their iPods/iPhones, as well as the ability to use those phones. One need not be a genius to foresee Apple integrating maps, music and phones into one device in the car, and allowing a simple wireless sync either with the handheld device that remains in your pocket or with its cloud based service. Texting and emailing could be voice-activated.

This means a dramatic rise in driver activity, for what would likely be an extremely popular device. So the future, it seems, is likely to see significant increases in drivers interacting with electronics, albeit it in a safer way than in the past. No one, for instance, will need to take their eyes off the road to punch buttons on radios.

Looking into my crystal ball I see more accidents, of the rear-end I-wasn’t-paying-attention type. As opposed to those that took their eyes off the road and swerved into another lane as they spun the radio dial.

How legislatures (and the National Transportation Safety Board) deal with this remains to be seen, but I would expect vigorous debate to continue that focuses on the issues of the role of government and consumer safety.

June 12th, 2012

Attorney Suspended For Groping Adversary

I hate to do two posts in a row that deal with lawyers acting badly, but you take the news as you find it. While the last post dealt with a publicity hungry lawyer ignoring the rules regarding damage claims, this one is really, truly, ugly.

The Appellate Division (Fourth Department) suspended Rochester, New York attorney Lawrence Baker for two years for groping his adversary. Really. When I write grope, I really mean grope. As per the court in Matter of Baker:

In addition to the inappropriate conversation and conduct to which respondent admitted, the Referee found that respondent engaged in additional unwanted and highly inappropriate conduct of a sexual nature, including exposing his genitals to opposing counsel, twice kissing her on her neck and shoving both of his hands inside her blouse and bra and touching her breasts.

Sigh. I’m going to guess, and I don’t think I’m going too far out on a limb here, that Mr. Lawrence might be suffering from some kind of psychological issues. Because that ain’t normal for anyone. In the glass-is-half-full department, this is newsworthy because it is so abnormal. This isn’t exactly one of the issues that causes problems in the profession.

But in the glass is half-empty department, why wasn’t this guy disbarred? He even had a prior history of “engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer,” among many other problems. For that he was censured.

When it comes to money issues regarding lawyers acting as fiduciaries, it seems the courts take a harsh stance. Sexual assault on your adversary is a lesser evil? This isn’t’ the first time the issue came up….From December 2008, with a very divided court on the subject: Sex Offender Keeps Law License

June 7th, 2012

The $30M Dog Bite (and Rosemarie Arnold)

I was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000.

Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”

Really? The Queen? Well, let’s see about that, shall we?

Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”

That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?

As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.

So the old law was, thankfully, changed by the Legislature.

Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:

1. The Queen of Torts is actually ignorant of the law; or

2. Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.

Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.

Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.

And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.

Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.

I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.