March 9th, 2012

Mitt, My Dad and Witness Prep

Romney at Daytona 500, February, 2012 (Rainier Ehrhardt/AP)

When I was a puppy lawyer my father gave me this advice about witness preparation: Never tell a client what not to say. Our conversation went like this:

Dad: If you tell a witness what not to say, the witness will blurt it out.

Me: Huh?

Dad: If you tell the witness, “Under no circumstances should you ever say Rumpelstiltskin” then the deposition will go like this: What’s your name? Rumpelstiltskin.

As Mitt Romney can attest, my dad was waaaay ahead of his time. In an article by Liz Goodwin on Yahoo! News (Why Mitt Romney can’t shut up about his money) she finds Romney has the same problem that my dad focused on when it comes to talk of wealth. Romney’s obviously been told, again and again, not to discuss it. And out it comes, time and again:

Over the space of a few months, private equity millionaire Mitt Romney has cavalierly bet a Republican rival $10,000 during a debate, enthused about the joys of “being able to fire people who provide services to me,” told Detroit voters that his wife drives “a couple of Cadillacs,” and said at the Daytona 500 that while he is not an ardent fan of the sport, he does have “some great friends that are NASCAR team owners.”

Goodwin delves into similar cases, from literature to baseball, about individuals stridently trying to avoid saying/doing something, and the problems inherent on focusing the mind that way.

This matters, of course, in the context of litigation if a lawyer tries to over-prepare witnesses by telling them what to say or not say, as opposed to finding out what happened and dealing with that. The witness, in the uncomfortable spot of a court proceeding and directed to do something that might not come naturally, will sometimes blurt out what the lawyer tried ever-so-hard to stop them from saying.

Goodwin explains:

This is because our brain is always helpfully looking around for the very worst things we could do or say in any given situation, and then actively trying to suppress them with other, more appropriate thoughts and actions. The process has two parts–the unconscious, automatic monitoring of our forbidden thoughts, and the conscious, effortful way in which we distract ourselves from it. So when a person is trying not to think or talk about something–say, to pick an example at random, his personal wealth–he needs to both monitor the forbidden thought and distract his mind with other thoughts. This is called the “ironic process,” and it usually works, otherwise we would always be blurting out our secrets and insulting our loved ones.

Thus, today’s lesson in law: Beware the danger of trying to demanding a witness say or not say something, as opposed to finding out what happened. That, of course, is in addition to the ethical issues of having a witness fail to tell the truth.

There’s a lot more in the article, and it has strong relevance to the subject of witness preparation.

March 9th, 2012

Cuomo Attacks (Part of) No-Fault Fraud — An open letter to the Governor

Dear Gov. Cuomo:

First, let me tip my hat to you in going after No-Fault fraud, as you announced yesterday. Your decision to shut down medical mills and strip the licenses of deceptive doctors that churn phony No-Fault claims is admirable. I know this follows on the dozens of arrests made last week by Preet Bharara, the United States attorney in Manhattan for this type of conduct, coming from largely Russian-born individuals living in Brighton Beach.

But — and you knew there was a “but” coming, didn’t you? — I think you have only addressed half the problem. And with No-Fault fraud now on your plate, I think I speak for many when I ask that you authorize a more comprehensive investigation.

For the problem of No-Fault fraud stems not only from doctors doing phony billing, but comes also from sham medical exams by insurance companies to deny benefits.

You see, in order to get No-Fault benefits, an injured person must be examined by a so-called “independent” doctor that is hired by the insurance company responsible for paying, and treatment authorized. But there are way too many accident victims who are denied those benefits after quickie 5-minute exams. In order to appreciate why that would happen, one only needs to understand a fundamental conflict of interest: The more denials a doctor issues, the more sought-after s/he is by the insurance companies for future exams. If you are the insurance company and knew Dr. Smith denied coverage 30% of the time and Dr. Jones denied it 90% of the time, wouldn’t you want to keep sending claimants to the one that saves you money?

New Yorkers surrendered certain rights with the birth of the No-Fault laws. We can no longer bring actions unless we have suffered a “serious injury.” In exchange, we are supposed to get guaranteed medical/economic benefits up to $50,000 in exchange for the premiums that we pay.

But what happens with this kind of insurance fraud? The insurance company benefits because many lawsuits can’t be brought and then a second time by stopping the benefits the claimants were supposed to receive.

Investigation of this fraud should be relatively simple, as you know from being our former Attorney General. If a doctor is seeing 10 patients in an hour for No-Fault exams, and churning out cookie-cutter denials, you can bet your last dollar that doctor isn’t doing it with the best interests of the patients in mind.

So I applaud your efforts to go after No-Fault fraud from those doctors running medical mills and over-billing. And if there are some attorneys in cahoots with the medical providers, go get them too.

But please don’t leave the legitimate auto accident victims, with legitimate injuries, out in the cold because of fraud being perpetrated from the insurance company end of things.

Respectfully submitted,

Eric Turkewitz

March 7th, 2012

Congrats (Again) to my brother…

Dan Turkewitz, winner of the Vail Film Festival Screenwriting Competition

Long time readers may remember that my brother Dan is a screenwriter. And the reason you may remember is that two years ago I published a letter he recieved from Justice Antonin Scalia about the legality of secession. That script was a political farce about Maine seceding from the union. The letter went viral.

Congrats to my brother are once again in order. He just took the top screenwriting prize at the Vail Film Festival for his screenplay The Wright Stuff. A comedy, The Wright Stuff is a cautionary tale about the ambitious ghost of legendary architect Frank Lloyd Wright leading a common draftsman to a long forgotten storage room filled with un-built Wright projects. The draftsman copies them and is hailed as the second coming of the master.

He can add this to his growing award collection that includes the gold prize for top sci-fi screenplay at the Page International Screenwriting Awards for Tranquility Base. That drama takes place in the International Space Station and our Moon Base. (I’ve always wondered if watching Apollo 15 blast off inspired him.)

Now all he needs is an agent to help get these scripts onto the big silver screen.

March 1st, 2012

Lousy Legal Writing (Even form letters suck)

Let’s face it, legal writing sucks. Which is to say, the godawful pretentious nature of the humblest of form letters is enough to suck the wind out of anyone that gives a damn about the written word.

This is a letter I recently received. The author’s name has been omitted to protect the guilty. Original in black. My version in red.
——————-

Dear Sir/Madam: Dear Ccounsel (or perhaps, simply Counsel:, depending on my mood)

Enclosed herewith please find defendants’ Bill of Particulars. Enclosed is the defendant’s Bbill of Pparticulars. Please note that at the present time this document is unverified. It is not yet verified.We are in the process of securing same from our clients, and upon receipt of our client’s verifications, we shall forward copies to your office. We hope to receive it soon from our clients and forward it on to you.

Thank you for your anticipated courtesy and cooperation in this matter. Thank you for your anticipated courtesy.

Very truly yours,

/s Lawyer
——————-
The original is 55 words, exclusive of salutation and valediction. Mine is 33 words. Now take this simple form letter and think about it in the context of a brief.

You get the picture.

February 24th, 2012

New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.