Cloudy with a chance of a lawsuit?

NeuwirthLaw Suing Big Box Stores

If you don’t know the children’s book Cloudy With a Chance of Meatballs and the movie, the townspeople never had to shop because their meals would fall from the sky fully prepared. Later on, climate change makes things dangerous. For me, the notion of things unexpectedly falling from the sky is instructive.  For no apparent reason, I have been on the receiving end of a series of claims against Home Depot and Lowe’s and other big box type stores.  The typical case goes as follows: A person goes to Lowe’s and is picking something off of a shelf at head level or higher.  There are no ladders around and customers are not permitted to be on ladders anyway.  So, the customer pulls a 2×4 or something large off the overhead shelf and Bam! something other than the 2×4 falls on them from above.  I have had two or three of these calls in the past six months and I am just one of many personal injury lawyers so it is safe to assume that this is a persistent problem. I used to have one a year, but that looks to have quadrupled by my count.

Is this a case? Of course, it is. You are there as a customer or a business invitee as we lawyers call you. The law says Home Depot has a legal responsibility to investigate and determine if there are dangers in their store. If they fail to detect the danger, they are liable to you. Further, if they created the danger, they are liable.

So, what’s the big deal? Well, often people have minimal injuries, but I was recently consulted by a client who was hit on collarbone by a falling “safety bar” as the big box store calls it. When you are injured by something called a safety bar, you can be pretty sure that that case is going to be settled or your lawyer will have a field day at a deposition. Why? Well, first, things are not supposed to fall out of the sky and hit you. Second, safety things are not supposed to hurt people. Overall, the big box retailer loses. The only question is when and for how much.

As a result of these indefensible situations, most big box retailers have pre-suit mediation programs that settle these cases. As with most clear liability cases, the injuries are what drive the value of the case. More injuries, more dollars for the client. Easy to understand. Basically, it’s a pretty safe bet for me to take clear liability cases and make sure to have real definable injuries. Real injuries are things like a broken this or nerve injury detectable on Emg etc.

How to Build a Book of Business or Are You Hungry?

NeuwirthLaw Law Practice Management

So, “how to” is the most searched term in the internet. Interesting right. It makes sense. How many of us have ever searched how to build a book of business? For lawyers and professional services businesses like CPA’s or architects, building a long-term book of business should be important if you want to succeed.  There are rainmakers and the worker bees, but you can ensure a long career if you are a rainmaker and not a worker bee. Worker bees are fungible. It’s SAT word day here at Neuwirth Law.

I am currently looking to meet professionals who don’t know me. If you want a free lunch and have a law degree, a CPA credential or an M.D. or D.O., I will come to you and lunch is on me.

I have a family member who I keep trying to send business to. They are a young lawyer, but they are always too busy to hop on the phone, talk to the client, and analyze whether there is a case there or not. I am referring the case because it is not my area of the law and I don’t know if it’s a case or not. I know another lawyer who worked an entire career as a defense lawyer for insurance companies and never had to and hence never did build a book of business outside of the insurers who sent them cases.

In both these situations, the lawyers are probably good lawyers doing good work on a daily basis, but they are missing the opportunity to build something. They probably don’t know what they are missing or what they should be doing. Sometimes, people are wracked with fear of risk and simply cannot leave the tried and true. But, if someone presents you with an opportunity to try something new or different, it is then up to you to follow through.

The simple process of reaching out to potential new business and seeing what works or what doesn’t is not easy for most people. I am not most people at least in my own mind. I don’t mind meeting people and chatting. I like to eat lunch. It’s fairly easy. The worst thing is that I met someone new. But, to not try is going to get you nowhere.

Mink on the Loose in Pennsylvania: Nuisance

NeuwirthLaw Case Matters

Minks are a nuisance? Hold my beer…

I love a good mink story. According to the New York Post, some animal activist released 6,000 mink from a mink farm in PA. I know next to nothing about mink or minks. What I do know is that mink farming forms the basis for one of the pivotal cases in nuisance law.

I always have a few nuisance cases in my case load because they are largely indefensible and fun to work on. I currently have cases in litigation against UGI, a big gas transporter and Energy Transfer or Sunoco’s successor for being a nuisance to the community. The UGI case alleges that it operates a compressor plant that runs 24/7 compressing natural gas in northern PA and destroyed my client’s family hunting grounds as bucolic places of refuge. Bucolic is a good word. In any event, the compressor plant is not moving and nor is my client.

So, back to the minks. In this law school case, a mink farmer sued a neighboring manufacturing plant for injury to his business. Apparently, mink are anxious creatures as you or I would be if we were prey or had a future as a coat. When exposed to loud noises, the mink refuse to mate and become useless to the farmer. The case went forward and the manufacturer could not just move their plant and the minks were not changing their behavior. This is a classic case that has to go to a jury. No settlement will really be possible. The mink owner won and the manufacturer appealed, but the mink owner ultimately prevailed. Presumably, the mink owner took the verdict money and moved elsewhere, but essentially, the manufacturer’s nuisance or noise had forced the mink farmer to move.  Classic nuisance.

The interesting thing about nuisance cases is that the noisy neighbor is not going to be enough to interest a lawyer in taking your case because there is simply not enough damage to make money for the client and the lawyer. In general, if the lawyer makes money but the client does not, the client will not be happy. I have a general rule that in settlements, I will not take more as a fee than the client gets in their pocket. I don’t know if this is routine or not, but there are situations where there is a large health care lien that has to be repaid or a large litigation expense that throws the settlement out of whack. Having a happy client is an important part of running a referral-based business. In every situation where I cut my fee, the client always thanks me and appreciates it.

Influencers Gone Crazy / How it Affects the Law of Evidence:

NeuwirthLaw Case Matters, Courts, For Lawyers, Product Liability

It is getting harder and harder to trust anything online these days. Be careful what you read or consume is just no longer possible. To be fooled is easy for all of us. If you are somewhat attuned to the social media world, like I am at 55 years old, it is easy to miss fakes, deepfakes, photoshops etc.  I recently saw a guy with a side hustle renting out a gulfstream jet that was under repair for influencers to use as a set showing them in their private jet on the way to fakeland. It was worth a chuckle and smh. Don’t know that abbreviation (shaking my head a/k/a people are crazy)? Suffice it to say that we will all be deceived in the future. The sheer amount of fakery out there affects perceptions of all things internet.

In Court, how a judge perceives the internet and its reliability will matter in a lot of cases.  I recently finished up a products liability case where consumer complaints about a product were a major point in my case. I was trying to establish that prior complaints meant that the company was on notice of the dangers of the product and that similar incidents had occurred.  The complaints were made online through a store’s website and responded to by the manufacturer. Many complaints were noted to be by “verified purchaser”. To me, these were admissible for a variety of reasons. To the defense, they were merely out of court statements offered for the truth of the matter asserted.  That is classic hearsay and not permissible in evidence because you cannot drag the internet commenter into court to cross-examine them.  But, the law moves slowly and painfully slowly at times.   Should internet comments and reviews be admissible?  It certainly seems like they should in my case, but reliability is the lynchpin or gravamen or touchstone of evidence and admissibility.  There are ways around the rule against hearsay, but pithy internet commenter posts are amusing and often distill the problem with the product to its very essence.

How Much Does The Personal Injury Client Affect Settlement and Deposition Preparation?

NeuwirthLaw Case Matters, Courts, For Lawyers

It matters a lot. Are you a Roger Federer type or Novak Djokovic? Some people are just very genuine, approachable, and likeable people. Others are not. Most of us are somewhere in between. But, those likeable guileless people are going to get a better settlement for the same case. Why? Well, more than likely the deposition displayed the plaintiff as he or she is and the defense lawyer saw it and communicated that to the insurer. Even in cases that I have handled where liability is a close call, often we get the case settled because the plaintiff was just such a nice genuine person that jurors would just melt at their story.


For example, I had a client who was fairly hurt coming home in a Lyft car from a church service. The church was her social group and she was there on a Saturday night. The defense lawyer asked if she was drinking and if that was why she took a Lyft car. The client said she does not drink as her church forbids it and is one of the many paths to evil, but that she understood why the defense lawyer would ask that and it was a good question. Now, I certainly did not prepare her to say that, but I knew that her personality would come through as the person she was. Did it matter to her case? Yes, because the defense lawyer just had to chuckle and tell her insurer that you did not want to go up against her in court. The jury would love her and hand her a pile of money.


So, what lesson does that teach me or possibly you? Well, I like to keep my case load full of people I like and want to represent. I do represent people who are difficult or suspicious of defense lawyers or make a poor presentation through no fault of their own. For them, I try to gently explain that fighting with the other lawyer is not a good idea or that they have a tendency to speak over people that is annoying. Some clients are chatty and some are not. Most of my clients have not been deposed before and it is an anxiety producing experience, but nearly all are adults and able to handle themselves with a little practice.

In many insurance defense cases, which are most of my routine car accident and slip and fall cases, defense lawyers are overworked and not terribly invested in their cases. Often, they will prepare their witnesses for a half hour literally right before the deposition. On the Plaintiff’s side, I think that is not acceptable. I spend two to three hours preparing my clients for a one hour deposition both to get them used to what is coming, to discuss issues, and to show them that I am working hard for them and earning my fee. I call all my clients after their deposition to debrief them. The one thing I want to hear at the end of the deposition is that we anticipated and they were prepared for all the questions that were asked.



What happens When You Win a Motion for Summary Judgment or What I did this weekend on my way to Tenerife?

NeuwirthLaw Case Matters, Courts, holiday, Slip and Fall, Sue The City


Tenerife you say? I had a chance to go visit the Canary Islands over the Labor Day holiday weekend and Tenerife is one of the largest and most visited islands in the chain. It’s a long but entertaining story. Anyway, the Islands are a bit like Europe’s Caribbean, I think.  Beautiful, volcanic islands off the coast of Africa and nearish to Morocco. They grow bananas and welcome tourists.

Anyway, while it’s supposed to be a vacation, I brought in my carry-on luggage 7 deposition transcripts and a few highlighters.

Why? Well, after a long five month wait, the Federal Judge in my slip and fall case against TSA decided a Motion for Summary Judgment in my client’s favor and now trial is on the front burner. So, I was reading transcripts to identify motions in limine subjects that I want to have the court consider.

While motions for summary judgment are rare in personal injury cases, the motions in this case addressed the discretionary function exception, which I have written about previously. In the Judge’s opinion, she agreed that the TSA floors at the Philadelphia Airport are slippery and while I always believed that to be the case, it is now a fact according to the finder of fact.

Interestingly, while I expect an effort to settle the case will be forthcoming, there is a novel issue arising. This case is brought under the Federal Tort Claims Act (FTCA). Under the FTCA, a plaintiff is only entitled to a bench trial, meaning you don’t get to have a jury decide your case. This is a way for the feds to control exposure I guess. But, one of the defendants in this case is the City of Philadelphia. The City’s regulations require it to always seek a jury trial. So, there will have to be some fighting between the defendants over whether to have a bench trial, jury trial, both or some hybrid. I do not have to take a position yet on this and doubt that I have a position to take. There is a federal statute saying I don’t get a jury trial. I think pursuing anything other than that is not likely to be successful. But, it should be a fun watch. I will bring the popcorn.

Annoyingly, the US Attorney’s Office always takes time to remind plaintiff’s counsel, like me, that the FTCA also limits attorneys to a 25% fee as opposed to our more standard 35% fee for trial cases. Again, not a lot I can do about that.

What is this? It’s a Slingshot. It looks like a deathbox to me.

NeuwirthLaw Auto Accidents

So, this beauty showed up in my office parking lot recently. I love cool flashy things just as much as the next guy, but this doesn’t seem like a plan for long life. It apparently is classified as a motorcycle.  So, in some states, not PA, you are required to wear a helmet in your slingshot.  It might be a good idea, but definitely not required.

Plus, you are buying a highway vehicle from Polaris, which is well known in the water going community for making….. motorized rubber boats that can race around on the water.

How does a Slingshot stack up to a normal car.  There are no airbags and no crash tests reported.  The vehicle has no top and is fairly light at 1700 pounds or so.  Things that go fast and are light have a tendency to roll over when impacted.  And, the little windshield will not protect you when a contractor’s ladder flies off his truck.

It looks like a fun jetski for land. Maybe I am being Debbie downer about this, but the crashes I see with motorcycles are pretty devastating for the riders. I expect the slingshot crashes have similar outcomes.

The Trump Situation: One Case Is Usually Too Much for your average client.

NeuwirthLaw Case Matters, Courts, In the News

Again, regardless of your political position, as a lawyer, it is simply incomprehensible to think of a single client trying to handle all of these different, bet the farm type cases going on in the same calendar year. Many of my clients are normal, everyday folk, who work for a living, raise their families, support their kids and parents, go to church etc. They are most definitely not Trump. And, also not billionaires. Litigation takes its toll for various important reasons.  One, it drags on forever compared to what people normally go through. Two, it is stressful because few have been through litigation and they have to trust their lawyers. Three, it is either expensive to defend or there is a lot of money on the line. Four, my clients were hurt and want some sort of compensation or acceptance of fault. I know that criminal cases are different and to some extent there is more on the line with jail time and all that. But, the simple notion of having four major cases going on in different jurisdictions with different lawyers, judges, witnesses, co-defendants, etc. is simply really hard on normal people. Now, Trump is not normal people, but even the highest folks still have to answer lawyer interrogatories, keep up to speed on what is happening and why and make some decisions. Plus, as he is older, it is harder and harder to keep track of minutiae and litigation is all about minutiae. This is just going to take its toll on him and his lawyers. How, I don’t know, but it will.


Here is an Un-Triable Case: So, what do you do here?

NeuwirthLaw Auto Accidents, Case Matters, For Lawyers

In February, 2022, your client, a New York man was hit by a Volkswagen driven by a woman, which allegedly left your client with severe injuries. He became the plaintiff. The case is ongoing in the New York Court system. The man had filed three or four prior motor vehicle cases in the past ten years. That does not make it not a case or a non-starter. However, what would you think if you were the plaintiff’s lawyer and you wake up one day and your client, the Plaintiff, Rex Heuermann, has just been arrested on suspicion of being a serial killer on Long Island and charged with three and possibly more murders of local women? Thankfully, this does not happen too often, if ever, in our practices. But, we all have situations in which the client’s case becomes impossible to pursue. Hopefully, you did not spend a lot of time with your client.

What are your options here? Well, ethically, the facts of the case are the facts and as his lawyer you could pursue the case or at least try to have it settled. In reality, the case has no value and is not worth pursuing.

A criminal plaintiff or defendant can have their depositions taken and theoretically can come to court and testify at trial. I have deposed people in prison before and had an incarcerated client come very close to having to testify at trial, but these are one off and highly unusual events. You cannot easily and effectively prep an incarcerated client and the process to produce an incarcerated client for Court proceedings is challenging within the criminal system. It is even more challenging in the civil system because the system is just not set up to deal with incarcerated individuals, who require a ton of security and personnel around.

Also, the client’s criminal lawyer would not permit a client to be deposed in a civil matter, so the civil matter would be delayed until your client is convicted of the criminal matters. In civil cases, you can invoke your fifth amendment right to silence, but your refusal to answer questions will be played on video to the jury. Further, if your client is the plaintiff, as would happen in this case, he has the burden of proof as to the crash and his injuries. While he might be able to testify as to his side of the story, the Defense would run into endless invocations of the 5th Amendment on cross-examination. Questions like: “Did you kill those women?”, “Did you deceive everyone around you about your actions?”, “Were you disabled by your injuries when you were arrested?”, etc. would certainly go to his bias, character for truth telling etc. Eventually, it would become absurd.

In practice, I would have a long discussion with the client and discuss options, but the expected outcome is either he drops the lawsuit or you withdraw as counsel. A private civil lawyer is not required to keep a client until death do us part. Our fee agreements give both the client and the lawyer the right to end the relationship without notice or reason. Also, a private citizen is not entitled to a lawyer in civil cases. Contrary to public opinion, a lawyer is only required in criminal proceedings per Gideon v. Wainwright.  So, the only thing a civil lawyer needs to worry about is making sure that there are no pending hearings, motions, or other Court events to attend to before dropping the client.

Medical Malpractice: Easy vs. Tough Calls

NeuwirthLaw Case Matters, Insurance, Medical Malpractice, Standard of Care

Some cases are easy to understand and some require research and expert opinions. All malpractice cases in Pennsylvania require that I obtain a certificate of merit from a doctor with a specialty in the appropriate area of medicine. Generally, I prefer a clean, clear set of injuries and damages.

What sort of cases are ones that I take vs. turn down? Generally, psychiatry cases are non-starters for me. It is very hard for jurors to be sympathetic to psychological disorders and mental health providers have a much higher protection from suit than your average doctor. I see other lawyers taking cases where the claim is failure to prevent suicide, but these are very, very tough cases and ones with little upside and a lot of risk. I also don’t take cases involving back surgeries, because they are just a muddled mess once you get into them and people will go back for surgery after surgery without pain resolution. These situations are so common that the orthopedists call them failed back surgery syndrome. This is not a good set up for a malpractice case.

The easier cases to analyze are ones where doctors simply miss a critical test or lab result or radiology study that would have saved the patient. Say, you are in the hospital and a scan is ordered, read, and not communicated to the person on duty. Or, the person on duty simply goes off shift and nobody follows up? That then results in distress or death and that becomes a valid case.

Favorite cases are failure to diagnose blood clots or pulmonary embolisms, failure to diagnose cauda equina syndrome, delayed diagnoses of all types, and of course, nobody’s favorite wrong site surgeries.

While rare, a wrong site surgery is when you go in to have your cancerous left kidney removed and the doctor removes the healthy right one. This used to happen more than it does now, thankfully. There was a doctor in New York who performed a wrong site brain surgery once when I was a younger lawyer. He blamed nurses for the CT scan being upside down on the lightbox. Not good.

The really tough calls are ones where there is a clear injury like a bladder or colon perforation followed by the doctors doing their best to fix the unintended injury. Often in these cases, there are simply devastating complications or injuries. If a colon injury is not recognized rapidly, patients become septic and can die. Bladder injuries are hard to isolate and cause a lot of complications. So, in the initial analysis, you may have a clear injury and major damages, like permanent digestive problems or a colostomy bag or other things that are life changing injuries. But, was there malpractice? Is the injury a known complication of the surgery? These are where judgment and experience come into play.

What if the surgery causes a known complication, meaning one that is recognized to occur? And, what if the complication rate is 1% of all the surgeries performed result in this devastating injury? What that means is that the surgeon caused an injury that they knew could occur, they were not careful enough, and 99% of the surgeries performed are completed without this injury. Is that malpractice? I don’t know. It certainly is enough to get the records, get an expert opinion, and decide the risks and benefits of bringing suit. I think I would file suit on that one.