Saturday, October 31, 2009

When To NOT Ask Questions At Trial

A few years ago I tried an auto accident case. The defendant driver was 94 years old. By the time of the trial, she was in a nursing home. I never did take her deposition before trial because it was represented to me that she was too ill. Since the accident facts were pretty straightforward (she ran a stop sign), my inability to take her deposition before trial did not concern me.

When the trial started, defense counsel indicated that his client, the elderly driver, would testify at trial. I offered to enter into a stipulation with the lawyer that there was no need to have her testify.

The insurance company refused, apparently thinking that, by putting her on the witness stand, it would create sympathy for the elderly driver.

So the defense attorney put her on the stand. It was a disaster. She was confused, couldn't hear very well, and the questioning didn't serve any real purpose. Despite the disjointed testimony, she did say that she didn't think she saw any cars coming when she entered the intersection.

When it came time for cross examination, the judge asked me if I had any questions.
I stood up and said three words: "No, your Honor." She had done no damage to our case, and the last thing I wanted to do was to ask a single question that appeared to be "beating up" an elderly, confused driver. In my judgment, the jury understood what was going on. And as it turned out, the jury "got it."

Sometimes you need to know when to shut up. In these situations, often the best cross examination is none at all.

Friday, October 23, 2009

Truck Driving Accident Turns Into Punitive Damages Claim

This preventable truck driving accident seemed simple enough. The truck driver ran a red light under heavy fog conditions (fog "so bad you couldn't see in front of you" according to witnesses) and smashed into a motorist at an intersection.

However, after the lawsuit was filed, it was discovered that the driver:

had a previous speeding ticket in New Mexico, a suspension and/or revocation of his license, multiple moving violations, falsified/missing driver logs, little to no experience in the field, and the inability to speak/read/write English fluently.

What's more, during "discovery" (the process by which parties request and exchange written documents/information) it was learned that the driver logs from the crucial time period surrounding the accident were never produced, and that the logs which were produced “show falsified information with regard to times and/or distances.” (Id.).

As a result of these facts, the judge permitted the plaintiff (the injured party) to amend the complaint to allow a jury to consider a claim for punitive damages against the trucking company for its hiring practices and not producing the missing information, among other things.

Lesson: many trucking negligence cases involve more than the "simple facts" that led to a collision. Occasionally, haphazard hiring or safety practices well before a collision are the true root cause of an eventual collision.

And you can be sure of one thing: the unjured victim will NEVER learn about some of these safety shortcuts unless (1) he or she hires a competent attorney with experience in knowing what information to push for; and (2) a lawsuit is filed.
Trucking companies NEVER voluntarily release this potentially damning information without a lawsuit being filed.

Case: Sabo v. Suarez, United States District Court, M.D. Pennsylvania (July 31, 2009).

Tuesday, October 20, 2009

$105 Million Dollar Verdict In New York City--The Big Apple Likes This One

Yesterday a New York jury returned a $105 million verdict against Exxon for its poisoning of New York City's water supply. The recipients of this whopper verdict were not "personal injury" plaintiffs. Rather, the plaintiff was New York City--the Big Apple itself!

I found it ironic that this verdict came on the heels of a recent report that indicated that New York City spent hundreds of millions in 2009 settling personal injury type lawsuits. City officials were complaining about the extreme costs of tort litigation and ways to curb it, such as putting a legislative cap or limit on lawsuit recovery.

But I'm sure THIS verdict will engender no complaints from NYC officials about our tort system. Welcome to the double standard that is our litigation system. After being in the litigation trenches for over 20 years now, the real world definition of a frivolous lawsuit donned on me a few years ago.

The textbook definition of a frivolous lawsuit in Ohio is:

Conduct that serves merely to harass or maliciously injure another party, or is for another improper purpose;

Conduct that is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law;

Allegations that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Forget how the law defines a "frivolous lawsuit." You want the street definition? Here it is: Any lawsuit other than mine."

It's those "other people" out there that are abusing the system. "They" are trying to get something for nothing from cities like NYC, so the thought goes. But our claim, or in this case, New York City's, is valid and proper. This seems to be the prevailing mentality of people utilizing the legal system. In fairness, there is some truth to this belief, because some people try to take advantage of the system. More importantly, though, the "any lawsuit other than mine is frivolous" mentality exposes how subjective public attitudes about our legal system really are. One person's valid lawsuit is another person's "frivolous lawsuit." That term gets tossed around so loosely and so often that it has lost its true meaning with the public.

It's very similar to all the current cries for "tort reform." What it truly means is that people generally have no objection to cracking down on "those other lawsuits out there," but get really ticked when they discover that tort reform has infected and limited their legitimate lawsuit.

Friday, October 16, 2009

Phone Calls From Chiropractors And Attorneys After An Auto Accident

If you've been injured in an auto accident, you may receive a few phone calls. Here's what you need to know to protect yourself from some shady and perhaps even illegal practices.

The first series of calls may come from chiropractors who got your name by hiring "runners" to retrieve your accident report (which is a public record). The pitch? "We can help you and there's no need to pay the bills as we have an attorney who will work with us and pay your bills out of any settlement." Many will even offer you cab fare to arrange for your initial office visit. From there many will pressure you to sign forms where you give the chiropractor an interest in your injury claim. And, by the way, they will recommend an attorney, who will often be at the chiropractor's office, ready to "sign you up." These are nothing more than "mills" that are not intetested in your best interests. Many insurance companies are wise to these referral mills (because the same chiropractors and attorneys show up repeatedly on these claims) and you are at risk for ruining your claim by agreeing to this shady arrangement.

The next wave of phone calls you may receive is from a small group of attorneys or their office staff. THIS PRACTICE IS ILLEGAL IN OHIO AND VIOLATES OUR ETHICAL RULES. Any attorney engaging in this sleazy practice can be disciplined. These phone calls will take on various forms, according to Columbus personal injury attorney William Mann, who is also an expert in Ohio ethics law:
If attorney phone solicitations are done "right," they are very difficult to prove. The offending lawyers, when caught, say something such as, "Oh, we get dozens of phone calls a day from potential clients and friends and family of potential clients and we try to return all of them. We probably called X because we got a call from a friend or family member asking us to call him." Another scam is to direct contact a potential client and say,"I am investigating this accident and heard you had information about it.* * * Oh, you were injured in this accident, too! Well, since I am already working on this I would be happy to represent you as well." Another popular scam is to direct contact a potential client and say that you will be happy to come to their house and talk about the potential case. When you get there you give them some money, maybe $125 if it is a good case, in cash, for "cab fare," so that they can come to your office during the case if they sign your contract. It goes on and on but these are the scams that I hear about most often.

The overwhelming majority of attorneys do not pull these shenanigans. As usual, it takes only a handful of unscrupulous attorneys to give all of us a black eye.
Lesson: HANG UP THE PHONE! Do your research. Ask friends and family for a list of competent Ohio personal injury attorneys or firms. Hop on the Internet and find a firm that offers potential clients good information or practical advice on what to do after an auto accident. And just say no to "friendly" offers of cab fares and attorneys lurking in the back room of a chiropractor's office.

Thursday, October 15, 2009

How NOT To Choose A Malpractice Attorney Over The Internet

Recently I visited a local free "listing" website (similar to just to make sure our firm was correctly listed on the site. I noticed a link at the top of the site to a another site (something like "malpractice lawyers for you"). Curious as to who this firm was, I clicked on the link. Up popped a law firm that I had never heard of. The firm listed a 1-800 number and listed no address. I was convinced that this was not an Ohio malpractice firm.

So I dug a little further with a Google search and, sure enough, this malpractice firm, advertising in Canton, was really an Oklahoma law firm. Why would an Oklahoma law firm be soliciting Ohio malpractice cases? Simple--to "sign up" the client and attempt to refer the "client" to a competent Ohio malpractice attorney, for the purpose of gaining a referral fee.

Here's the problem with this arrangement. You as the "client" of this firm are now being passed off to another attorney or firm. No doubt you will have no say or input as to whom you'll be passed off to. This is nothing more than a business arrangement. So be careful when you are searching for an Ohio malpractice attorney and land at a site that does not reveal the location of the firm. The old adage of "cutting out the middleman" might apply here...

Tuesday, October 13, 2009

Newly Proposed Consumer Financial Protection Agency: Chamber Of Commerce Hypocrisy Exposed Again

The Chamber Of Commerce has (again) recycled a shopworn page from its PR playbook: if you can't think of any substantive criticisms of a new law, just blame "trial lawyers." As a response to our recent economic meltdown, The Obama administration recently proposed creating The Consumer Financial Protection Agency. Here's a summary of some of the Agency's proposed powers:

To begin with, be aware that the agency's powers and oversight would extend far beyond mortgages and real estate -- into all credit cards, debit cards, consumer loans, payday loans, credit reporting agencies, debt collection, stored-value cards and even investment advisory and financial advisory services, to name only part of the list.

It would have the authority to alter long-common practices that nettle consumers, such as mandatory arbitration clauses in the fine print of contracts that automatically send business-consumer disputes to arbitrators rather than to courts. The agency could ban or limit such clauses in specific products if they are shown to tilt against consumers' interests.

The agency would write the user-safety rules for virtually all consumer financial products and would have the legal firepower to levy huge fines -- tens of thousands of dollars a day per violation in some cases -- and prosecute lenders, brokers and others who break the rules.

The agency would be the dominant federal consumer protector in all home real estate settlements. It would regulate "affiliated" title, escrow and financing businesses connected with realty firms and builders. It would oversee equal credit opportunity and fair housing, and would set standards for all mortgage offerings, whether from the biggest national banks or the smallest local brokers. Generally it wouldn't seek outright bans on mortgage products that carry elevated risks -- interest-only loans, for instance -- but would require that lenders restrict such mortgages to well-informed applicants who can document that they understand the risks and can afford the payments.

Look, whether you agree or not with the idea of creating a new government agency to crack down on the mortgage and banking industry or arbitrary credit card surcharges, most people would conclude that SOME increased regulation of the lending industry is needed to prevent the rampant greed (some would say fraud) and overreaching that led to the collapse of the stock market, our retirement plans, and the banking industry.

Who opposes this legislation? The Chamber Of Commerce. Naturally, they really can't argue that the drunken greed of Wall Street and the lending industry had nothing to do with our economic collapse. Who are they targeting while opposing this newly proposed agency? Those evil "trial lawyers." What's the reason? Apparently, under the bill, the Attorneys General of each state have the power to sue and fine the financial services industry for violating any new regulations. And, in an obvious stretch, the StarChamber reasons that any state's Attorney General's office might hire "trial lawyers" to help prosecute these miscreants.

The other main reason it opposes the bill is the byproduct of another dusty and torn page of its playbook: decrying more "big government." But here's where the StarChamber really looks like hypocrites in opposing this bill: The Chamber fully supported the first bailout of Wall Street! Here's what their chief lobbyist said on the eve of the first bailout/stimulus passed in October, 2008:

Extraordinary government intervention is essential to restoring confidence and ensuring credit availability,” the Chamber’s chief lobbyist, Bruce Josten, said in a letter to lawmakers.

“Stabilizing the financial system and preventing a systemic collapse of our capital markets must be the federal government’s top priority,” he added. “Speed is of the essence.”

In addition to its key vote alert, the Chamber on Monday sent out an urgent call to action to its members across the country urging them to lean on their lawmakers to vote for the rescue plan.

“Time is of the essence!” it read. “It is more important now than ever to urge your members of Congress to take immediate action to stop the impending financial crisis.”

On Monday, Josten said in an interview that the enhanced oversight in the bill may not create major burdens for the business community because it will apply only to those that seek help from Treasury.

The message: support HUGE govermnent bailouts of the industries primarily responsible for our wrecked economy, but oppose any legislation as "big government" when it comes to protecting consumers. And, oh yeah, we've got to find a way to blame the trial lawyers for something in this bill...