STATE vs. FEDERAL COURT VENUE/JURISDICTION DECISION

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“COMBAT TACTICS, MR. RYAN” from The Hunt For Red October starring Sean Connery and Alec Baldwin:

Jones (VO): Torpedo in the water.  High speed screws.  Bearing zero-two-zero.  I estimate range at eight thousand yards.
Mancuso: You’re heading straight into that torpedo.

Ramius: I know.

The torpedo hits the sub, but it does not explode.  Instead, it breaks-up on the hull without a detonation.

Mancuso: I’ll be damned.

Ryan: What happened?

Mancuso: Combat tactics, Mr. Ryan.  By turning into the torpedo, Ramius closed the distance before it could arm itself.

So, intelligent tactical use of all available options is the moral of the story.

As a general rule, Plaintiffs’ lawyers do not want to be in federal court because the consensus is that state court is better for our clients.  Why? Well, federal judges are far more likely to grant summary judgment or take seriously the myriad speculative or scattershot defense arguments why evidence should be inadmissible or generally take the insurance industry’s claims as legitimate, when they are normally hackneyed boilerplate attempts that are routinely dismissed in state courts. Forgive me my prejudice in this.  Nevertheless, there are exceptions to every rule and knowing the playing field is critical.

So, why choose Federal Court? Speed is the hallmark of federal cases. What may take 36 months in Montgomery County takes 9 months. Second, there is tremendous pressure applied to cooperate with opposing counsel and move the case along. So, what might take motion practice for multiple delays in discovery simply does not occur with regularity in Federal Court. Further, if my client’s case is in a jurisdiction that I do not generally like, Delaware County, I will have a more sympathetic jury pool in Federal Court, if I can get there.  Finally, many defense lawyers simply have much larger case loads than I do and the federal venue forces them to pay far greater attention to my case than they would if we were in state court with its slower timelines and more lax enforcement of the rules of civil procedure.

 

CROSS-EXAMINATION 101:

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I like to think that preparing my client for defense cross examination at a deposition is important. I have sort of a standard set of instructions I give my clients about depositions and then work on the key facts of the case. I like to think in terms of themes to the case that can be regurgitated in a sentence and encapsulate the case. This takes a bit of work with the client and some back and forth practice. The critical part of every case is searching for statements made by my client, whether they remember them or not. Did you tell your physical therapist you felt great? Did you tell the police officer that you were switching lanes? Did you tell the ER doc that you were out drinking? The good, the bad, and the ugly should come out in prep so that I don’t have to say much in the deposition itself. I do not like to have to ask my clients questions at their depositions. I know that there is a school of thought that says that you should have your client at least audition or recount how this incident has altered their lives or destroyed who they were before the incident, but I feel like it opens too many doors for a semi-conscious defense lawyer to attack. This is especially true if the defense lawyer has missed key points in their questioning.

As with a lot of litigation, there are a lot of judgment calls made during depositions by both sides. If my client is too talkative, maybe the deposition concludes without any questions by me. If the defense lawyer obtained an admission that is significant, but was simply a misunderstanding by my client, I will go and fix that. Sometimes, clients are just very nervous and unable to display who they are as people and that situation requires more involvement by me to draw the person out and recount their story.

Regardless, the best clients are always the soft-spoken and seriously injured who have mostly healed, but will never be the same. Everyone on both sides knows that the case will settle and the question is for how much and when. The client’s demeanor helps push the case one way or the other. Is your client a nice family man, a church going grandma, a construction worker who can’t lift things again or a convicted felon?

SEASONS GREETINGS!

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From all of Us to all of YOU,

May 2023 be the best year yet, and may your holidays be festive, fun, and most importantly–SAFE!

Warmest Regards for the Season,

Neuwirth Law Group

Tony Beets: King of the Klondike

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You don’t know who this is do you? Like all things these days, there are a lot of things funny and not pulling on our attention and time. Tony is, apparently, the gold mining king of the Klondike a star of the show Gold Rush. But, for me, he is a very entertaining, no bs kind of business owner. I would guess he makes millions of dollars mining gold in his small business. He has comically large expenses, like he needs to buy a million dollar bulldozer and there are days and weeks when he is putting money into the business stripping the overburden before he can get to the gold. But, once on the gold, Tony is relentless about pushing his crew to get results. Described by his daughter as loved by animals and small children, Tony is one of a kind. If you are loved by animals and small children, there are a lot of people who don’t love you or your manner. It bespeaks a disregard of social norms, but a good heart underneath. Tony curses so much and is so rough on his people that you have to see that success is what keeps people coming back to work for him. In gold mining, there are lots of failed miners and few success stories. Tony is a success and survivor.

Even his competitors shake their heads with admiration. We cannot all run small businesses mining gold, but Tony’s malapropisms like Asp for ASAP tell you that he is a crazy hard working immigrant who really cannot be bothered getting the word right as long as you understand that you are taking too long doing his work for him. The workers who succeed there are no bs kind of people. I like watching his drive and push to get things done. Nothing comes easy when you are in a remote area and there is always a need for two or three back up plans. If you are an environmentalist, this is not the show for you. I have not figured out the environmental impact of this show, but they dig a lot of holes, burn a lot of diesel, and move water flow around willy nilly. But, it is entertaining to watch.

In my practice, usually I have a pretty good idea how a case will turn out or I would not have taken it in the first place. However, the focus of the case or the weaknesses of the defense only become apparent during the course of discovery. If everyone agrees that nobody was watching the store when it was robbed, that’s a problem for someone. In complicated cases, it takes some time to figure out where the case problems lie for both sides. While I can look at a sidewalk and tell you why someone fell or look at medical records and tell you what went wrong, often only the people involved in the hospital or responsible for the sidewalk can tell you why the problem developed. So, in my world, digging out the overburden or stuff that you and I call topsoil is a process of obtaining records and taking depositions.

Often, the best thing that can happen for a plaintiff is for defendants to be pointing fingers at each other, but you will not necessarily see that until depositions press opposing counsel to make a decision on how to defend a case. Once people are under oath, it is hard to undo finger pointing. So, in order to be the success story and not the failure, finding the weakness in your opponent is an important step in getting a really good result for your client.

Yes, you could probably get an okay settlement for a client with a real injury and real liability on the defense, but can you add value to the case? Can you find a way to make the case indefensible? That is where I try to find my worth. I recently finished a case where a very experienced expert suggested a potential defendant that I had simply not considered. Consulting with my expert before filing the case made a big difference and increased the settlement value of the case by over a hundred thousand dollars. What is the end conclusion here? Get the case figured out as early as possible. Get your expert on board and informing your view of liability and potential defendants. Is this approach rocket science? No. Is it good lawyering? Yes. That is what you get from the small focused firm. The big advertising law firms will plow through your case and get to the end result, but will miss significant value along the way, because they don’t really care and your case does not matter to them.

 

USA Pretty Weak At Preventing Roadway Deaths Compared To Developed Nations

NeuwirthLaw Auto Accidents, For Lawyers, In the News

Here is an interesting article from the people who publish Wordle. https://www.nytimes.com/2022/11/27/upshot/road-deaths-pedestrians-cyclists.html?smid=nytcore-ios-share&referringSource=articleShare

If you are TLDR, then here is a summary. If you don’t know TLDR, then time to catch up with the current world racing past you. Per the NY Times’ article, “Much of the familiar explanation for America’s road safety record lies with a transportation system primarily designed to move cars quickly, not to move people safely. “Motor vehicles are first, highways are first, and everything else is an afterthought,” said Jennifer Homendy, chair of the National Transportation Safety Board.

https://www.nytimes.com/2022/11/27/upshot/road-deaths-pedestrians-cyclists.html?smid=nytcore-ios-share&referringSource=articleShare#:~:text=in%202021.-,United%20States,%E2%80%938%25,-Slovakia.

All you really need to know is that we are badly lagging all our fellow developed countries in basic safety measures for bicyclists, motorcyclists, and pedestrians. Much of the changes that are suggested in the article are simple road design changes and some vehicle changes. If you narrow a roadway, build a roundabout, and paint pedestrian areas, you will reduce fatalities. It is not so difficult.

Have you ever heard of a ghost bike or seen one? I ride about 1500 miles a year and seeing a ghost bike is always a sobering and concerning event. A ghost bike is a white painted bike chained to a post and it marks where a cyclist was killed. They dot the City of Philadelphia. I was riding over the summer DTS and passed two ghost bikes there. In Newport, Rhode Island, I passed three near their famous beaches. Basically, if you are biking and passing ghost bikes, you better be extra careful and it simply makes you sad. If you don’t know DTS, go look that up too. I have teen girls and their odd lingo seeps in over time. BRB!

DJT always moaned about the US being weak in the eyes of the world. Here is something we are actually weak at, but is easily fixable. Other things, like healthcare, and a social safety net are a little tougher to work through.

TELADOC: RECIPE FOR DISASTER

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So, Teladoc is a company / platform that has you meet with a doctor on line for various purposes. I am getting ready to travel abroad and am fairly healthy. So, for me, this is a great use of my time, the doctor’s time etc. But, Teladoc and urgent care situations in general present a real risk of inadvertently promoting medical malpractice. The reason is that there is a lot of information that a doctor gleans from in person visits. And, I mean a doctor, not a physician assistant (PA) or a nurse practitioner (CRNP or NP). I strongly encourage you to see an MD once a year now that we are done with the whole masking experience. An in person visit allows the doc to see how you breathe, walk, inspect your bumps and bruises, see how your skin carries blood to your extremities, and a thousand other things that can signal you are healthy or not. I have worked on cases where someone went to urgent care, was misdiagnosed and died at home. I expect that these are not isolated events. I have not worked on Teladoc or remote doctoring cases, but it is just a matter of time for those to work through the system. Interestingly, radiologists have worked from home for years without too much trouble. However, your radiologist never interacts with the patient. The film studies are performed by a technician and read remotely and the results then conveyed to your doctor. While there are still plenty of medical malpractice cases against radiologists, they are rarely related to the remote aspect of their work. That is not the case with internal medicine doctors. Unfortunately, insurers have tried to reduce the level of expertise that you as a patient receive in an effort to reduce costs. “Physician Extender” is the polite moniker for the PA or NP that you see, but the truth is you are accepting a poorer level of care. Most likely you may even call your PA or NP “doctor” without realizing that they are not trained as a doctor. It is a sad state of affairs. Yes, it is hard to get to see a doctor and Teladoc makes that easier. But, there are a lot of unusual things that are hard and you would prefer a trained person see you in person rather than over a video feed. I promise.

A New Addition to The Firm

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Edie. law dog in training

Edie, a new yellow Labrador Retriever has arrived at Chez Neuwirth. My older lab Louis went over the rainbow earlier this year and we were concerned that Yukon, who is also a yellow lab was lonely. We may have misjudged that. Edie is 9 weeks old and rather freestyling with her peeing and whining and generally being an infant. We are getting less sleep but taking lots of puppy photos and videos. Yukon does not seem too thrilled with the whole idea of a new puppy and is generally tolerating Edie.  I will keep you updated.

HIGH VALUE CASES?

NeuwirthLaw Case Matters, For Lawyers

excited accident victim shouting and showing win gesture near attorney in court

What makes cases more valuable in the eyes of both sides is whether the injured person has a permanent injury that will not resolve. Essentially, could both sides see a jury compensating the claimant for future pain and suffering beyond where the person is today? If so, then the person will have a case with unlimited damages. This poses a problem for valuation on both sides.

For the insurer, a permanent serious injury that will inflict obvious harm or disability is a case that needs to be analyzed and resolved if negligence is clear. So, what do these cases look like? Well, I am currently working on a case where a vehicle passenger’s right arm no longer fully rotates from palm up to palm down due to a crash. By any definition, he has a permanent and lifelong injury from this crash. The case will have to be resolved by the insurer. This is not a case that they will want to take to trial because it would not be hard for a jury to award large six figure numbers to my client for the injury.

On the Plaintiff’s side, these are high value cases depending on the extent of disability. However, they are also fraught with challenges. Often, clients with severe impairments are happy with lower numbers than the lawyer would like to achieve. The certainty of a settlement is important to the client, but most are unwilling to push cases to the courthouse steps or to a jury when there is real money being offered and the client knows that they have a real injury that will not go away.

Additionally, most plaintiffs’ injuries get better over time. People heal or adjust to their impairment. This means that the client will look better at trial than what they went through in the first two years of recovering. So, it is in both lawyer and client’s interest to get the case settled for the most amount possible before trial. But, from my perspective, it is always hard to judge when a client who is enduring a lot of pain and treatment is ready for settlement. Often, clients try to put off surgery as long as possible. Surgery increases case values, so putting it off makes valuation more challenging. A case where the client may have surgery is valued less than one where the client has already had two surgeries. But, as the lawyer, you don’t want to settle the case for the value of one surgery and then find out that the client had two more after that. That is either bad luck or impatience and costs both lawyer and client money. Doing a good job on these cases is a delicate balance and requires some really long discussions with clients about what they want, what their doctors want, and what they are realistically going to go through to get better.

CURIOUS PENNSYLVANIA EVIDENCE SITUATIONS

NeuwirthLaw Case Matters, For Lawyers

Female Traffic Police Officer Recording Details Of Road Traffic Accident On Mobile Phone

In Pennsylvania, for various evidentiary reasons, whether a vehicle occupant was wearing a seatbelt or not is inadmissible.  Pennsylvania’s seatbelt law is codified at 75 Pa.C.S.A. Section 4581. While the law makes seatbelt use in the Commonwealth mandatory, it also precludes evidence of a violation of this requirement in any civil action. In Gaudio v. Ford Motor Company, 976 A.2d 524 (2009), the Superior Court said simply that the statute applies and no deviation appears to be permissible. The evidentiary argument for this is that almost all of the time, the person who was not wearing a seatbelt was not negligent in the operation of their car and the burden of proof cannot and should not be shifted to an innocent or non-negligent passenger when the accident was caused by the negligence of another driver. Even if the passengers were not wearing seatbelts, the accident would not have occurred but for the negligence of the other driver.

However, there are innumerable situations where a lawyer or anyone paying attention to details will figure out that the injured person was not wearing a seatbelt. How? Well, in a lot of cases, people who do not wear their seatbelts have really serious fractures. The purpose of the airbag and seatbelt is really to avoid the really serious fractures. Can you suffer a fracture from an airbag? Yes, it happens all the time. But, it is usually a wrist or finger fracture. When you are not wearing a seatbelt, the fracture is your arm, your nose, a cheekbone etc. Essentially, if you are not wearing a seatbelt, you are going to hit the inside of the car really hard and the car does not give way. Now, would a juror figure out that the plaintiff was not wearing a seatbelt just from the injury? Maybe.  Maybe not.  In Gaudio, the case above, Ford Motor Co. argued that the passenger, who wasn’t wearing his seatbelt, would not have been injured by the airbag had he been wearing his seatbelt because the seatbelt and airbag work together as a system and someone too close to an airbag can be more seriously injured than intended. The Appellate Court disagreed.

Similarly, the findings on a police report are not admissible in Pennsylvania. Why? Well, the theory is that the police officer writing the report was not a witness to the crash and hence what they record is merely the product of hearsay. Plus, the authority of the police officer might make that hearsay more weighty than is warranted. So, if the police report says one driver is at fault, that cannot come into evidence. Similarly, if the officer wrote a ticket for running a red light, that cannot come into evidence for other reasons. Significantly, often, the police take down statements at the scene and record the weather and the position of cars etc. All of this information can be used to cross-examine the opposing party.

I recently had a defendant testify that everything in the police report was a lie. The skidding on gravel.. a lie.  The speed of approach? A lie. The fact that the person was on the phone at the time of the crash? A lie. So, what do I do with that information? Well, I deposed the officer who then verified all of the information in his report. Why? Because, now I do not need to deal with getting the report into evidence. Rather, I just have the officer testify, that I talked to the defendant, this is what she said, this is what I observed etc. Plus, it highlights that your average police officer is just recording facts, does not have an interest in the litigation, and would not fabricate what is in a routine report. Basically, it highlights that the Defendant is lying and makes her a witness you could not possibly call at trial.

Female Traffic Police Officer Recording Details Of Road Traffic Accident On Mobile Phone

WHEN CAN A LEAF HELP YOUR PERSONAL INJURY CASE?

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It’s almost slip and fall season again. Also known as “winter”, slip and fall season generates a lot of fractured arms, wrists, ankles, and noses. What does a leaf have to do with all this? Well, if you fall in a hole in the sidewalk, on the street, or trip on a hole due to a missing sewer or water utility line covering, there are several defenses that will be a part of any lawsuit defense.  The defense typically and rightly will raise the issue of whether you were looking where you were going? Lawyers will argue that the defect you fell in was open and obvious. There are multiple ways to deal with this problem. Was the hole actually open and obvious? I have had people call me inquiring about whether they have a case, but when they say that they were watching a video and fell in a hole, I turn them down. On the contrary, what happens if you were walking along and encountered a decent sized hole, but the hole was obscured by leaves? That makes it not open and obvious, right? Yes. As a result, anything obscuring a pedestrian’s vision of a hole or defect is powerful evidence for the plaintiff. There are innumerable other examples of things that obscure open and obvious defects. Shadows and darkness at night obscure most holes and defects unless there is a lamppost overhead. Rain obscures defects when it fills in a hole. Taking immediate photos of holes, defects etc. makes a big difference in these cases. I have had good success when clients photo the ice and snow, or leaves, or rain filled holes. Failing to do this makes a strong case weaker, but not a non-starter.

Here’s a photo with a partial doggie and a crumbling sidewalk . A lovely client was walking her dog at night and tripped on this broken up pavement and broke her wrist. The resulting settlement was about $50,000. While open and obvious, darkness prevented proper visibility of this defect.

Who was responsible here? The homeowner and their property insurer is primarily responsible. We often include the City of Philadelphia or other municipality in the lawsuit as they are liable if the homeowner does not have insurance or has insufficient insurance. Want to learn more? People often google sue the city and find me at this page: https://suephilly.com.