Proud Boys Verdict and Justice Grinds Slowly But Exceedingly Fine

NeuwirthLaw Case Matters, For Lawyers, In the News

Note to self, venue matters! The Proud Boys (PB) were convicted individually, and probably collectively eventually, of conspiring to overthrow the government or interfere with the lawful election process. I will be reading closely to see any juror interviews of their jury. Think about how your average Washington, DC juror would view this case. A notoriously violent thug group comes to your city from out of state and joins the January 6th insurrection. Then, it turns out that they were doing their best to make the demonstration into a riot. The riot shut down large parts of the City for a while and was generally a truly disturbing event. But, I am guessing that there were no Trump / Maga supporters seated on the jury. So, next time you are going to foment insurrection, maybe take your protest to Alabama or Mississippi.

The PB defendants’ defense was hamstrung by endless text messages gloating about their roles in the riot.  One of our own Pennsylvania citizens was convicted and he seems to be the unapologetic son of two Philadelphia police officers.  More black eyes for Philly, which is still recovering from the shame of the dollar dog night at the Phillies game.

Interestingly, several of the PB defendants took the stand in their own defense.  This is unusual in a criminal trial, though not infrequent. The risk of taking the stand is simply that you can be cross-examined and if you had sat silent you cannot be cross-examined. One statement at the trial stuck out to me. The Philly PB defendant said that he could not recall attacking a police officer. Now, I often instruct clients in preparation for depositions that it is no big deal to say I don’t recall provided you don’t recall. It may sound lawyerly or coached, but it is an easy substitute for no or I don’t have a clue etc. It allows the witness to backtrack if there is contrary proof of their not recalling. However, in a criminal trial or really any trial, not recalling something significant is going to generate an eye roll from your jury. Why don’t you recall whether or not you attacked an officer? Is that something you do often? Was the whole day a fog and you have no idea what happened? Basically, the defense seemed focused on making the PB defendants guilty, but only guilty like the others who stormed the capitol. This is an understandable position, but the text messages and other evidence seemed to have undermined this attempt in the jury’s eyes. Maybe it would have gotten a more forgiving hearing elsewhere.  Think about the bizarre Kyle Rittenhouse verdict or other similar miscarriages of justice. Why is this outcome different? Maybe the venue?

CLARENCE THOMAS WATCH

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Photo illustration by Lisa Larson-Walker/ProPublica. Source images: Chris Goodney/Bloomberg via Getty Images, piemags/DCM/Alamy Stock Photo, Al Drago/Bloomberg via Getty Images.

 

Ah, Clarence. As we all know, a leopard cannot change its spots. Does anyone know anyone who would like to pay for my children to go to private school even though they are not your children? It seems that this is not worth disclosing if you are C

larence. It certainly seems like a stain on the ethical credibility of the man who was never the leading light of the Court. It is fair to say that he does not care and his lifetime appointment makes sure that he does not have to care. However, he is seriously damaging the Court’s reputation in the eyes of most people, who normally don’t know or care much about what the Court does. For those of us who pay passing attention to the devious underhanded shenanigans of the Court, it is about time that people woke up to see that the Court is not their friend and not staffed with fair, honest, and well-intentioned people. The justices are often political creatures and the Court merely gives them a platform to express their political views. Amusingly, clarence and alito are not very good at politics and are making things very hard for their preferred party.

 

A WORD OF WARNING

NeuwirthLaw Law Practice Management

Buh Bye! Don’t let the door hit you where the good lord split ya!

I am involved with an organization that was about to hold its annual meeting and benefit at the Union League in Philly. As many may know, the Union League club is in the middle of center city, is a lovely club, and has a bit of a George Bush republican type history. While I am not a member, I have always enjoyed their hospitality. Recently, the Union League held an event for Gov. Ron Desantis. Apparently, the membership of my group decided that was a bridge too far and withdrew en masse from the event. The Club was gracious and did not keep our deposit, but it was a lesson learned.

The Bud Light marketing person who tried to reframe or redirect the brand is no longer with the company either.

So, commercial businesses remain very sensitive to popular outrage or opinion or the general mood of its customers. The willingness to yield to pressure has shown a lot of success in the business ecosystem. For example, Fox News’ Tucker Carlson is one of the most watched hosts in prime time tv, but he has extremely limited ad support because of his racist/polarizing/nutty/hypocritical opinions expressed on his show. Basically, big business has decided that supporting Tucker is bad for business. Similarly, I no longer buy Goya beans. And, while beans are a big part of my life as I am vegan, mostly, I just find other brands. Goya’s boss came out fervently for Trump and I choose to purchase elsewhere. Whether it harms Goya I don’t know, but I vote with my wallet on that product.

Why does this matter? Gerrymandering has greatly curtailed the response that politicians have to the electorate. Change in politics takes a long time and customers/citizens lose interest or feel that their votes have limited effect and hence either give up voting or don’t try to effect change.

I think that people in general are far more willing to vocalize their opinions both post-Trump and post pandemic. That willingness to speak out may have more of an effect than we saw in the past. However, if you are a part of working with organizations in your free time or for your actual job, it seems like we all need to re-evaluate how not only the organization’s actions are viewed, but how its choice of purveyors and partners are viewed.

A FUNNY THING HAPPENED ON THE WAY TO SERVICING A CLIENT

NeuwirthLaw Case Matters, For Lawyers

Last week, something happened that had not happened in the past decade in my practice. A prospective client called with a case that was worth $100,000-$200,000.  However, it was a slip and fall case and would likely have to go into suit and would resolve with a settlement in 2 years. The client had been through a difficult divorce and did not want to go through litigation and wanted to settle the case pre-suit but had no idea of the value of the case. So, she came to me for advice. Now, normally, advice on case values is sort of proprietary information. Nevertheless, I thought that there was no way a carrier would give the client a fair valuation on her case.

Nevertheless, soon after her injury and healing, the carrier settled her case with her for halfway between what I told her to demand and the initial offer. So, this was a great result for the prospective client. She basically saved herself my 1/3 referral fee and avoided litigation and was happy with the outcome.

I chalked this up to future good karma that should come back to assist me in the future and generally I work hard to make sure that people know I am honest and looking out for their best interests. I think no good comes when a client thinks that their lawyer is more concerned with their own well-being over that of the client.

Is there any downside here? Yes. I cost myself about $35,000 and my referring counsel about $15,000. Is that bad? Who knows. Should I not have given the client a fair view of her case’s value? I don’t really think I would do anything differently next time. I might think about it, but the notion of an insurer giving an unrepresented claimant full value on their case before much in the way of investigation is very, very unusual.  I would love to see this accomplished more of the time and think that it might serve to make many cases settle with far less cost to the insurers. However, insurers, like politicians insulated by gerrymandering, are very resistant to change and particularly insulated from feedback from claimants, as most claimants are not customers and don’t want to be claimants in the first place.

FOX NEWS / DOMINION

NeuwirthLaw Case Matters, For Lawyers, In the News

Tucker is a war criminal

Tucker Carlson, throwing up in his mouth

Well, that’s a damn shame. Case is settled for $700 million or so and an apology. My first thought is that I really, really hope that Dominion’s counsel had this on contingency, though I doubt that. Second, I was a bit concerned as to how a company was going to show 1.8 Billion in damages and get a jury to bite on that number. Third, 700 million is near about 1/3 of the demanded amount which sounds about right to me in your average personal injury case.  I would guess that plaintiffs wanted a nice round $1 Billion, but negotiations probably revealed that as a non-starter.

Another interesting consideration of this is whether there was insurance coverage for this. There is no coverage for intentional torts, but some media outlets are reporting that insurance will cover some or all of this. It makes for an interesting armchair quarterbacking. If there is insurance money to pay for this, then the insurer will control the negotiations to some extent as it is their money and there are more suits that will need settlements. Rupert Murdoch may be a difficult client to deal with with a lot of business with the insurer.  However, it would be unusual that Fox/Rupert get to dictate how an insurer settles its cases.

Assuming that there was insurance, that tells you that the insurer believed that the case would be lost for something between $500 Million and $1 Billion. Those are big numbers for an insurer and a big black eye for FOX.

This case went really up to the Courthouse steps, but really was one that was ripe for settlement. The downside risk to Dominion was that a jury would agree and award $100 Million and $300 Million for punitives and they could get a settlement for $500 Million or more.

So, if you turn down $500 Million and a jury gives you $400 Million, the one who looks really bad is…………..the trial lawyer. So, it seems like Fox got its comeuppance for eating off the Trump gravy train. Weirdly, Trump seems to meander on in life without being held to account.

JUDICIAL ELECTIONS COMING UP

NeuwirthLaw For Lawyers, In the News

Clarence and Ginny Thomas, on the town

Are they ashamed of their detestable conduct? No, they have no shame at all; they do not even know how to blush. So they will fall among the fallen; they will be brought down when I punish them,” says the LORD. Jeremiah 6:15. I am not much for biblical quotations. But, this quote was on the wall of a church in South Africa and extolled the benefit of whistleblowers. I was shocked at how great a quote this was and went to look it up. Sadly, it seems to reflect a lot of our politics these days and especially republican refusal to face up to problems like guns and social change.

On a semi-related tangent, once upon a time when I was in law school in the 1990’s, there was a newly forming area of legal studies that took the unconscionable position, at the time, that judges were deciding cases based upon their own personal political or religious views or personal financial interests and not based upon the law. The fancy term was that some opinions were outcome determinative, which meant that ye olde judge decided what outcome they wanted and that drove the reasoning in the opinion.

We have now come full circle on this. Justice Clarence Thomas is being pilloried for being what he is. A grifter and culture warrior. He was never a leading light of the legal establishment and yet has been a rock solid pillar of the Court for the hard right. He is married to another culture warrior and they seem like peas in a pod.

Committing what would be ethical violations for all jurists by sitting on cases involving your spouse or failing to file required financial disclosures is embarrassing to him and offensive to me as a lawyer.  It requires a fair bit of chutzpah to not be embarrassed by this. However, it is not shocking when the reputation of the Court takes a nosedive. Amusingly, Justice Alito and Thomas will get their way on a lot of culture war issues, but are so naïve and protected in their realm that they are going to make things very very hard for the republican party for the future.

Here in Pennsylvania, we actually have judicial elections for the Pennsylvania Supreme Court coming up. I was reading the Legal Intelligencer, which is the PA lawyer’s daily newspaper, and was fairly surprised to see that a sitting PA Commonwealth Court Justice was found to be NOT RECOMMENDED by the PA Bar Association. Imagine that. Usually, it takes a lot of work to be found Not Recommended.  You have to be either way way too young, inexperienced or simply have done something nutty. So, having looked at Judge Patricia McCullough, you will find the “nutty” box checked. Her husband stole money from an elderly client’s trust fund, she enabled election denial lawsuits and tried to stop certification of election results, and generally was on the wrong side of the whole Trump/Mastriano election denial attempts.

Clearly the Judge thinks that she has done nothing wrong and is running for re-election, but to a different court, which is curious. So, when you go to the ballot box, remember McCullough. Clarence Thomas would support her cuz Ginny Thomas told him to.

Gwyneth Paltrow Park City Skiing Trial Opinion Fumbled by NY Times

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An essay in the NY Times by a blogger and digital media strategist about the Gwyneth Paltrow trial misstates just about everything about your typical personal injury lawsuit. The author, Ms. Spiers, thankfully claims no legal degrees or training and is apparently at the NY Times, which I generally respect, for some sort of pop culture view of things. Nevertheless, no lawyer practicing personal injury law would agree with most of what she says in her op ed.  It is just silly nonsense. The link can be found herehttps://www.nytimes.com/2023/04/04/opinion/letters/gwyneth-paltrow-ski-trial.html .

First, as a plaintiff’s lawyer, this was a problematic case. I try to avoid taking cases where negligence is in dispute and injuries are in dispute. You really don’t want to have to fight both of these points. So, this was a weaker case to start with. Second, the brain injury cases are harder cases and easier to attack from the defense side as there is little objective evidence of injury oftentimes. Third, you can spend a lot of money on experts to challenge liability and that was done here, but is not a wise move from a plaintiff’s perspective. Here, the defense challenged the plaintiff’s theory that Gwyneth was the cause of the crash. That would not happen if you were t-boned at an intersection. Fourth, rarely can you sue in the ski resort setting and you certainly cannot sue the resort where the event occurred in most states.

Additionally, Ms. Spiers argues that litigation is expensive and borne by every adult to the tune of $3,500 or so.  I think that that is a silly statistic. Seriously, incredibly stupid. Does litigation increase the cost of doing business in America? Of course it does. What do you get in return? A profound focus on safety, the rights of the individual to be safe in using products and going about their everyday life and ….. oh, wait, complying with the US Constitution’s Sixth Amendment Right to Confrontation and a jury trial.  Crazy, I know.  So, the author has safe cars, safe products to use, and safe medical care and safe places to ski or pen her opinions. She gets to live a long, safe life because of what she perceives as the cost of litigation.

In addition, as for “costs”, plaintiff’s lawyers usually pay for the case and take a loss if they lose. So, the Plaintiff, who lost here, never owed a dime to his counsel.  Second, Gwyneth was most likely defended by her insurance defense counsel assigned to her by her insurance company.  She too most likely paid no legal bills because the insurance company paid all her expenses.  That is part of what you pay for when you pay for car insurance.  Even if she had lost, her insurer would have paid up to the limits of their insurance policy.  They have to defend you and pay the expense of doing so.

Finally, as to the facts of the case and testimony, it is really, really problematic to have a Plaintiff taking vacations that far exceed the normal vacation for a normal juror. This plaintiff was taking very high end vacations and posting about them on social media. This is simply silly conduct by the Plaintiff and one where most likely the attorney counseled the Plaintiff that this did not look good. Further, where the Plaintiff is spouting conspiracy theories from the stand, most people are going to think you are a kook and not be sympathetic to the evidence you put forward.  Why would a juror want to help you if the evidence is that you are better off than they are? You don’t need the money and why would they want their rates to go up, which is part of every jurors’ fears about awarding a big verdict.

So, while the trial was televised and hence open to being watched by a digital strategist, the crux of the trial was missed.

Dominion MSJ v. Fox News: Interesting Development

NeuwirthLaw Case Matters, In the News

tucker gape mouthed and stupid looking

There was an interesting development last week in the voting machines company’s lawsuit against Fox News. In order to win a case against a broadcaster like Fox for defamation, you have to prove both falsity of what was said and knowledge that the statements were false. Malice aforethought I think is the fancy terms. You have to know that what you were spouting was nonsense and you broadcast it anyway or you were deliberately indifferent to its falsity.

The Court found that “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” the judge wrote. “Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity.”

So, the Court found that no reasonable person could find that the statements Fox was broadcasting about the voting machine companies were true. There is no exception here for MAGA or QAnon folks. Amusingly, the Court inadvertently finds that the MAGA and QAnon folks are not reasonable people.

Now, the case moves to trial where malice or knowledge that the statements were false will be an issue. But, the recent dump of text messages will likely push the parties towards settlement discussions. I don’t know much about Delaware juries or how they would view Fox news and whether punitive damages would be awarded. We shall see what happens.

Nevertheless, having summary judgment awarded in favor of the voting machines companies is a major step forward for them in their pursuit of some sort of compensation for being on the receiving end of the Trump addled Fox broadcast engine. Dominion is now in the driver’s seat and will likely be able to dictate the terms of the settlement.

Why Slip and fall Cases Generally Don’t Settle Before Suit Is Filed

NeuwirthLaw Case Matters, Slip and Fall

Slip and Fall image

In my world, there is a general consensus on the value or certain injuries that allows cases to be routinely settled between plaintiffs’ lawyers and insurance companies.  Let’s say hypothetically that a typical fractured arm or wrist with no surgery and no adverse consequences after a period of splinting or casting, and recovery is worth around $45,000.  Sometimes more, sometimes less. Basically, the client had a clear injury that resolved after a period of healing. If the client has ligament or nerve damage, then the numbers are usually far higher.  However, regardless what the client believes the value is or should be, I know that the going rate is about $45,000. A jury may give you zero or may give you more than that amount.

However, getting to that negotiated amount varies greatly depending on the case. I have probably settled 5 similar cases in the past 18 months in that range of payments. But, those cases were all auto related cases. If they had been slip and fall cases, those settlements would likely not be offered and would not be offered until the case had proceeded through about a year or so in court. Why?

Well, in an auto crash case with a broken arm, you know what happened, what caused the fracture and generally who was at fault. Unlike in Gwyneth’s case, you have a broken arm that everyone can see on x-rays. Plus, there really should be no dispute that my client was not at fault or I would not have taken the case.

On the other hand, in every slip and fall case, there is an element of comparative negligence. In practice, this morphs into the defense lawyer trying to pin some or most of the blame for the fall on the person who fell. Whether they were not looking, should have been looking more closely, were distracted etc. These are all issues that are explored in the course of trying to reduce the value of the case and reduce the value of the damages awarded. Since there are all of these potential avenues to explore and ways to reduce the damages awarded, slip and fall cases almost always go into suit.

Since you know this as a lawyer, what is the right way to proceed? Generally, I cannot do very much until the client is fully healed or near it. Why? Well, you don’t want to settle a case for the value of a fracture if they have permanent nerve damage or need surgery. Second, I cannot really order medical records until treatment is done or near done. But, once treatment is done in a slip and fall case, it makes sense to order the records, make a demand to settle the case, and file suit when you get a lowball offer. There is not much reason to delay filing suit because the low offer will not change until the negligent party is exposed at depositions. In auto cases, a fracture will usually be settled by the insurer as there is really nothing to fight about and they know roughly what the case would settle for down the road and both sides should avoid litigation expenses in that situation.

 

Your Water Is Dangerous, Whaaaaat?

NeuwirthLaw Case Matters, For Lawyers, In the News

Recently, I had not heard about the latex spill into the Delaware River and went to my local ACME and found that all the bottled water had been cleaned out.  Except, of course, Aquafina which has a serious marketing problem. But that is a separate story. Anyway, here is what happened per the City of Philadelphia.  A synthetic latex product spilled from the Trinseo facility along a tributary of the Delaware River near Bristol Township, Bucks County, 13 miles north of the Baxter Drinking Water Treatment Plant intake, shortly before midnight on Friday, March 24, 2023.  The product spilled is used in making products such as headlight covers.  The Trinseo company, which apparently caused this says the product is water soluble, so it dissolves in water.  I’m not sure if that is good or bad.

So, what can you do about this? Really nothing other than panic a little as everyone did. I think a little panic was the correct response! I don’t particularly have an opinion on headlight covers, but they don’t seem very natural. Anyway, as a PA resident, you have a right under the PA Constitution to be free from infringements on your right to a safe environment and you may have been out a few bucks for bottled water, but that is about it.  Some public interest law firm may be able to bring a claim about violation of the clean streams act, but I expect the regulators are fairly pissed about this already.

Basically, while the common person thinks that class action lawsuits have a lot of power, in truth, they have a lot of restrictions built into them. First, you would have to prove injury to yourself similar to the rest of the class of claimants. It will be near impossible to prove injury here and impossible to prove that you had the same injury as other claimants. So, don’t bother. Nevertheless, it is scary how quickly we can all be affected and scary to see the public move quickly in response.