WHO LIKES ME LEAST?

NeuwirthLaw Case Matters, For Lawyers

This is not a popularity question because that line is too long. Nope. Where is your average personal injury lawyer least well received? I have found large property managers or landlords are probably those who like me the least. I have been to cocktail parties or chamber of commerce where I introduce myself and my professional work and the conversation just stops cold. It is a routine occurrence at this point.

So, why does a commercial landlord dislike me and my brethren? It is fairly simple. Business-people hate paying for insurance and perceive all slip and falls on their property as frivolous or filed by money hungry poor people, who don’t take personal responsibility for their actions. In truth, while there is always an element of personal responsibility that drives down slip and fall settlements, the secret to the landlord’s animus is that they could have avoided their sidewalk decaying, their walkways uncleared, etc. with the application of a little bit of money. When their conduct is indefensible, they get upset. Nobody likes to sit for a deposition. It is even worse when you are the property manager and your failures are just startlingly obvious.

I am always working on amusing cases where people fall on ice in parking lots. People walk into a parking lot and slip on black ice and break bones. I don’t take ice cases without fractures. The fracture tells the landlord it was a real fall with a real injury. The fracture also tells the jury that there was real ice there. The only remaining question is where and why and for how long. Usually, the cases are amusing for me because the defendant’s records are either non-existent, harmful to their case, or fabricated. Fabricated is my personal favorite. How or why does one fabricate a snow and ice record? Consider that someone falls and the boss says we need the snow and ice records for the day. The snow and ice records are not regularly kept or kept poorly and that is readily apparent when inspected. If and when I prove fabrication, the case is over and done with!

Pennsylvania has the hills and ridges doctrine and a bunch of other rules about snow and ice and the duties of property owners. Generally, the rule is that you cannot sue a property owner if there is ice on their property if it was snowing, raining on a frigid day or otherwise actively precipitating. You also cannot sue if the snow and ice developed naturally from snowfall. However, all bets are off when the snow and ice has been there for a day or so or has been moved around by shoveling, plowing etc. Basically, the Courts try to give the property owner leeway in clearing their properties during stormy weather. Generally slippery conditions is a bad factual scenario for a plaintiff’s lawyer. I recently turned down a case where a caller had undergone back surgery following a fall. After reviewing weather records for the day in question and going back over the client’s story, I was pretty sure that I would eventually lose the case if I pursued it to the end. So, I turned the client down and referred him out to another lawyer who might pursue it. But, I have better things to do than take a tough liability case for two years with an uncertain result. I had the tough conversation this week with the client rather than two years and a few thousand dollars lost down the road.

THE LAW OF WAR

NeuwirthLaw Case Matters, For Lawyers

 

There is a law of war? Who knew. In college, I read an interesting book called Just and Unjust Wars by Michael Walzer, who is a history professor. The book addressed the somewhat unwritten rules of war that unfortunately has persistent relevance to this day in light of Ukraine’s situation. Russia seems to persist in targeting civilians. Walzer is adamant that the Rules of War, such as they are, do not permit attacking civilians as a mechanism of war. It is okay to shoot combatants but not non-combatants. Walzer opines that it is a violation of the Rules of War to shoot an opposing soldier, who is merely bathing during wartime, but that seems a close call to me. Another interesting aspect of the book is a discussion of rules regarding reprisals. Reprisals are essentially a response in kind to aggression by the opponent. So, if the Palestinians killed an Israeli soldier on patrol, Walzer would permit the Israeli army to destroy a convoy of Palestinian militants. But, it would not be permissible to kill civilian Palestinians or to target a hospital.

Putin seems to have missed these lessons. The term scorched earth is essentially a violation of the Rules of War. It means that you are burning the enemy’s fields, land, homes, in an effort to beat their army. It is an impermissible tactic, but plainly Putin is seeking to reduce Ukraine to a fighting force and nothing more. It is not acceptable tactically or to a country that is complying with the rules of war. But, I think that Putin is way beyond the pale of upstanding nations at this point.

To connect this to law in Philly, there are certain rules of decorum for lawyers in depositions and other forums. We defer greatly to Judges when we are in front of them because they can make decisions that hurt you or your client’s case. We also generally defer to other lawyers in most professional courtesy situations. If I have to cancel a deposition on short notice, I expect opposing counsel will agree and we will reschedule. If they don’t agree or I don’t agree, both sides know that the courtesy will not be reciprocated when needed. Both sides need a break in most cases at some point.

But, in depositions with other lawyers, I find that I don’t miss the breakdown of some decorum. I find that defense lawyers for insurance companies are often ill-informed about their cases and not honest with themselves or their carrier about how the case is going to turn out. Every case has its little fights, but it is rare that disputes cannot be settled between counsel during depositions. I have not yet had a case where fights between counsel needed to be moderated closely by the Court. Usually, if the Court is involved, I turn out to be in the right as I try to avoid Court involvement.  The judges we appear before are far far less involved in our cases and while they are well-intentioned, they are just as likely to make a mistake as they are to make the right decision.

FOX News, Quack Treatments, and the Law

NeuwirthLaw For Lawyers, In the News, Medical Malpractice

 

If you are interested in how far down a rabbit hole Fox News can send you, kindly see the attached Shoemaker v. UPMC case. Our Superior Court had to take its time and overlook routine procedures to make the point that just because you want a treatment to be given to you, the Hospital does not have to give it.  In other words, let the doctors practice medicine as we have traditionally done here based upon evidence and research. If you would like to use Fox News endorsed treatments, go somewhere else. The facts of Shoemaker are sadly nutty. Mr. Shoemaker, in December of 2021, developed worsening covid. His vaccination status is unstated, but let’s assume he was unvaxxed. He got worse and worse and was placed into the UPMC ICU on a ventilator. His spouse demanded that he be given ivermectin, which is used for deworming horses. I give my dog ivermectin every month for heartworm. It is dipped in a nice meaty flavoring and my dog loves it. I cannot catch heartworm, so I abstain. Anyway, Mr. Shoemaker was in such distress that his healthcare power of attorney was making decisions for him. They went and found a New York lawyer and a local doctor to prescribe ivermectin. But, since Shoemaker was in UPMC hospital, the hospital said you cannot administer meds here that are not approved by modern medical guidelines. Essentially, UPMC said, we are not a vet and you cannot give this drug on our premises.

Shoemaker’s lawyer went to Court and the Court Ordered UPMC to give ivermectin. UPMC said you can bring your own doctor here and give him it but we are not responsible. So, the lower Court basically accepted the word of a local family doctor over the opinion of the head of the infectious disease and pharmacy committees at a major and reputable institution. This is really great if you are Fox News.  It is really ungreat if you are trying to practice medicine and get people better. So, here Fox News won the first round. Unsurprisingly, the ivermectin had no discernible effect and the studies upon which the medication was recommended were not up to snuff. Mr. Shoemaker died of covid, which was likely preventable had he been vaccinated, but that is a guess. Again, Fox News wins! They had convinced Shoemaker and his care givers that the most important things was ivermectin not vaccination. But, Fox News had lost what I can only guess was a die-hard listener.

The case should have ended there. Courts would not normally here a case about whether to give a drug to someone who is dead. It is considered moot. But, the Hospital, not wanting to repeat this scenario the next time Hannity’s producers find a new treatment for some random disease, decided to press the issue and asked the Court to continue the case.

The Court finally decided that a patient has no “legal right to demand a particular medical treatment against the advice of their treating physicians, to compel a hospital to allow the administration of a medical treatment that contravenes its own hospital policy, or to force a hospital to issue credentials to a physician to administer such a treatment.” Comically, the PA Superior Court cited to Texas, Florida, and other dark red states which had similarly concluded that you cannot force a hospital to deworm you.

We can all blame Fox or America’s crappy education system as it exists for most people, but at some point, I keep hoping that the Courts will stand against this wave of non-science based garbage that is simply not helping people other than Richard Murdoch, Hannity etc. It looks like the Appellate Court did the right thing here. Sadly for Mr. Shoemaker, he was so far down the rabbit hole, that he sacrificed his own life for Fox before real doctors had a chance to save him.

(null)

Here is the Appeal decision:

On a lighter note:

Go Phillies

Go Eagles

Charissa Thompson and the Left Turn Crash

NeuwirthLaw Auto Accidents

So, NFL sideline reporter and commentator was in a bad car crash recently. She happens to also be a spokesperson for Mercedes and was in one of their sedans. As you may see from photos, all her air bags went off following a crash in which an oncoming car turned left across her path and she had the right of way.

In Pennsylvania, the law on this is as follows: § 3322.  Vehicle turning left.

The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.

Left turn cases usually make good personal injury cases. Essentially, when you are driving along minding your own business and an oncoming driver turns across your lane of travel there is going to be a big impact because you had the right of way and no warning that there was about to be a car in your way. So, you are doing about 35mph and just come to a complete stop impaling the other car.

Usually, people break their sternum, break fingers, wrists or have other medical problems directly related to the crash that are rapidly appreciable by a hospital.

These crashes usually occur because the person in oncoming traffic guesses that your lane was clear of traffic but did not make sure of that. So, there was usually a car in the left lane blocking their view of you in the right lane. Guessing it was safe to turn, they cause you to crash into them. Pretty straightforward, right?

Here the law says shall yield.  To lawyers, shall means MUST. Furthermore, a defendant in Charissa Thompson’s case would have to prove that her probably large black Merc was not close enough to pose a danger. The facts plainly disagree with that opinion, so the opinion probably ain’t worth too much right?

In medical malpractice cases, the easiest cases are ones where a bile duct or nerve or ureter or artery was cut and should not have been cut. Basically, the cross in those cases is you should not just blindly cut things, correct? The same is true here. You should not have turned across oncoming traffic until you could see that it was safe to do so, correct?

Occasionally and I mean rarely because it looks stupid, defendants will say that they did check to make sure the roadway was clear and that it was safe to turn. I am working on a case where the turning driver claimed to have had an unobstructed view for 100 yards of the lane of oncoming traffic, but turned across it anyway.  That was an inexperienced driver situation. If you say that you looked and 100 yards was clear and then you turned and it was not clear, either you are fibbing, which I frown upon, or the other car was going 300 miles an hour. It simply is not believable. Nobody who drives regularly will believe the fibbing driver.

In those situations, their lawyer, provided by their insurance company, has likely explained that they can say whatever they want but it will not be believed. Further, the defendant driver will say, I looked left, looked right, looked left, and then proceeded. Every word gets less and less believable when you have a big impact like this.

I am usually working on two or three left turn cases during the year and they are often truly devastating impacts. Sometimes, the insurer will bring up the speed at which my client was traveling, but it is usually hard to determine and the left turning car is so obviously at fault to render any comparative negligence largely irrelevant.

I am currently working on a case involving a left turn resulting in a fatality. There is a grainy surveillance video of the crash in the distance. The insurer may argue that my client was speeding, but the penalty for speeding is a $150 ticket, not death. In personal injury law, where death is the injury, it is very, very difficult for a defendant or their insurer to argue that my client bears full responsibility for a crash where he died. This is even more true where the offending driver was making a left turn. So, more often than not, policy limits should be offered in those sorts of situations by a prudent insurer. We shall see how that one turns out.

Recent Case Results for Neuwirth Law (Oct. 2022)

NeuwirthLaw Case Matters

Neuwirth Law Offices delivers favorable awards for personal injury victims and their survivors in Philadelphia and surrounding Counties.

If you or a loved one have been injured in an accident, contact us today to receive just compensation. 

2022 – $500,000 – Pedestrian hit by truck pelvic fracture with surgery. – Montgomery County.

2022 – $300,000 – Car crash with car-carrier trailer fractured ribs, knee and back pain – Berks County

2022 – $ 42,000 – Car crash wrist bone fracture from airbags no surgery – Bucks County

2022 – $ 15,000 – Motorcycle crash policy limits – Philadelphia County

2022 – $750,000 Single vehicle motorcycle fatality on 76 West Exit. – Philadelphia County.

2022 – $500,000 – Pedestrian hit by truck pelvic fracture with surgery – Montgomery County.

2022 – $300,000 – Car crash with car trailer fractured ribs, knee and back pain – Berks County

2022 – $300,000Novice driver causes crash resulting in cervical fusion surgery. – Bucks County.

Read More

The Single Most Litigated Injury In Personal Injury Practice

NeuwirthLaw Auto Accidents, Slip and Fall, Sue The City

Lower back pain resulting from a car accident or slip and fall is easily the most litigated issue in my experience. Why is this? Insurance companies’ business model is to collect premiums and avoid paying claims. The cause of lower back pain is often ripe for debate in the view of insurers. Why? Well, most people’s spines degenerate as they age. So, a 20-year-old spine will look a lot different than that same person at age 65. How different is very dependent upon the person and their activities. Often, your average construction worker will have a more degenerated spine than your sedentary office worker. Most doctors will also tell you that you may have no problems with your back, but have a very concerning MRI scan. Others with no MRI problems will have severe back pain. Basically, the medical community has a lot of solutions to back problems, but our understanding of what causes back pain and when is still evolving.

Therefore, when you are in a car crash and have a history of back pain, however minor, the insurer will inevitably blame your prior back history for the pain and say it is wholly unrelated to the car accident. The plaintiff’s lawyer will argue that you had one episode of back pain seven years ago and it’s clearly not contributory to your pain in contrast to getting t-boned by a range rover. Alternatively, some people have had prior injections for spine issues, but are now in need of a fusion. There are all varieties of back pain complaints following car accidents. Do you have a disc bulge or herniation. Is it new compared to old MRI’s if you had ones. Does the back pain go away with physical therapy or injections? Regardless of outcome, the defense doctor will always blame your current back pain on your degenerative disc disease or old age. Even if you are 40 years old and have no history of back pain. That is what the defense doctor is paid to do.

The only real problem with these cases for most jurors is that there is no fracture or surgery or stitches or objective injury that they are familiar with. Rather, this is “soft tissue” injury that republican tort reformers have attacked for years, unless a republican family member was in a car accident. On that front, Texas is one of the most restrictive states on personal injury lawsuits. Texas’ Governor Greg Abbott, is wheelchair-bound due to a 1980’s era injury in which he was jogging and a tree fell on him.  He filed suit against the property owner who was responsible for the tree and the tree company that maintained the property’s trees. The parties reached a settlement in 1986, the details of which Abbott revealed. The defendants’ insurance companies pay Abbott periodic lump sum payments plus monthly income. By the end of this year, he will have received about $5.8 million and is entitled to monthly income from the settlement until he dies.  https://www.texastribune.org/2013/08/04/candidate-faces-questions-turnabout-and-fair-play. Does Gov. Abbott care about his tort reform stance and his party’s position? Uh, nope. Surprised? Nope.

All The Scary Bad Stuff Lawyers Do To Their Clients

NeuwirthLaw For Lawyers

Snidley Whiplash, Esq.

I continue to believe that most lawyers are mostly good at their jobs and mostly work hard to make a living for themselves and their families. Then, there are the bad apples that crop up in every profession. Some are greedy, some are thieves, some are addicts or alcoholics, and some just lose their way. I have known good lawyers and bad ones, winners and thieves.

Nevertheless, every month or so, the PA Disciplinary Board shoots out a newsletter (sic) detailing the latest rogues gallery of lawyer offenses. The easiest way to end up on the list is by developing an addiction and dropping out of criminal cases while they are ongoing. The second easiest way is to steal and I mean steal money from your escrow account. As personal injury lawyers, I often have huge dumps of money coming and going from my escrow account. At the end of a case, State Farm may send me a check for $600,000. Of that, I pay the client, myself, my expenses, and usually a health care lienholder. But, I can see lawyers lying to their clients and simply stealing the money. It takes an honest and non-desperate person to hold the money for the client. If your world is falling apart, financially or otherwise, having $600,000 sitting in a bank account is a recipe for disaster and disbarment.

What are other bad things? The Court recently disbarred a lawyer I know for three years for aggressive revenge porn type activities against his newly divorced wife. I would not have expected such conduct from this particular lawyer, but it just goes to show you. When I was a defense lawyer in Boston, a lawyer I was up against used to tell me that my $125,000 salary was peanuts and not worth the effort I put in. He later disappeared, got disbarred, and popped up as a real estate broker in Nevada. I also had to testify once in a case where a lawyer was being prosecuted by the US Attorney’s Office in Florida. I have known a few criminal defense lawyers who get themselves mixed up in crazy stuff that crossed many ethical lines. In this case, the lawyer had sworn in Court in an affidavit that he was counsel for some defendant, but had said and acted otherwise in Florida. The US Attorney’s Office there was using his statement in New York against him in his case in Florida. He was disbarred. I knew something was amiss with him when I exchanged discovery with him and we were supposed to begin a hearing 15 minutes later. I was acting according to the District Attorney’s Guidelines. He was not. He disappeared with the original documents, said he had food poisoning, and never came back to the hearing. I recall my boss being furious with the other lawyer. The Judge never did anything about the obvious infraction, but she was later lambasted in the New York Post. So, there are crazy people everywhere.

Most of us do our best for our clients and act in an ethical manner in what we do. Most of us would be simply embarrassed and ashamed to be in the cross-hairs of the Disciplinary Board.

 

Judge Max Baer Died

NeuwirthLaw For Lawyers, In the News

Judge Max Baer, the Chief Judge of the Pennsylvania Supreme Court died over the weekend. He was, by all accounts, a good judge who had risen to the highest level of the judging part of our profession. I expect that there will be a big fight over the next person elected to the Supreme Court. Judge Debra Todd, by virtue of her seniority on the Court, will become the new Chief Justice of our Court and will be the first female Chief Justice in history. Judge Baer’s replacement will likely be appointed by Governor Wolf and must be confirmed by 2/3 of the Pennsylvania State Senate. While we mourn the passing of Judge Baer, who gave his professional life to the Court, the next appointment matters and is worth a fight.

In my opinion, the Court’s recent makeup has benefited the individual in innumerable ways against the oppression of big business and the non-sense wrought by republican efforts to gerrymander their way out of generational declines in popularity and impose the will of a minority of crackpots on the centrist majority of the people of Pennsylvania.

Know When To Hold ‘em, Know When To Fold ‘em

NeuwirthLaw Case Matters, For Lawyers

I field a lot of calls from members of the public who believe that they have a case worth pursuing. After a brief listen, I can tell that they do not, because I have been doing this for a while. Nevertheless, the callers will often persist that there was a violation of the standard of care, or that laws were broken, or that something else caused them harm. Usually, they are right, but they are missing the critical factor of damages or some elementary issue of law that torpedoes their case. You can only learn this stuff by being a lawyer for a while. My physician wife used to spend a lot of time dealing with people who had done well-intentioned research of the internet but were missing about 10 years of medical training. It’s similar with my callers.

On the other hand, I was talking to a contractor friend recently and said that I would like to be a stone mason in retirement. It seems nice and peaceful to me. Place mortar, place brick, repeat. He laughed and said, my father was a stone mason, my brother was a stone mason, etc. It’s hard back breaking work outdoors etc. So, things are not always what they seem and very, very little is easily learned from the internet. Remember, the prosecutor trying to undermine Vinny’s wife in my cousin Vinny?

What makes someone a plaintiff’s personal injury lawyer, like me, versus an insurance defense lawyer or a corporate litigator? What makes someone a surgeon instead of an oncologist? To some extent, the area of your profession that you are happy in is one that suits your personality or your skills. Very, very few people can be good surgeons. It takes a level of dexterity and belief in your self and your skills and training that few people possess. Similarly, few surgeons want to or can bring a critical level of empathy to working with cancer patients fighting to survive.

How about lawyers? I was a defense lawyer for a while, but I always felt badly for the injured people I was up against. I am much happier representing the injured people than the insurance carriers. That’s just me. What else matters in my world? It is nearly impossible to be a successful personal injury lawyer or practice without a really strong personal and professional balance sheet. In my practice, cases settle fairly regularly, but dosing out settlements and knowing with some certainty what you are going to make in a year and how to prepare for bumps in the road is something that few lawyers can do well. What does a bump in the road look like? You go to trial on an auto case, turn down a mediocre effort, win on negligence and the jury finds no causation. Okay, stuff happens. You just lost $13,000. Meh.  That doesn’t feel good. But, I absorb that and move on. What is the lesson? Well, I look at my caseload and keep money around for the tougher cases or more longshot cases. Less aggressive or less risk taking lawyers try to dose out their bigger cases by putting one or two in a year. I have more confidence and am better financed after years of doing this, that I put my biggest strongest cases into suit as soon as I get a crappy defense offer from the insurer. Yes, the case may cost me $25,000 over the next year or two, but I have confidence in what I am doing.

Most of my defense lawyer brethren and sisters don’t have the money to place down on the line and don’t have the internal willingness to do it. I am no gambler, but I am willing to put myself on the line for a good case. Most lawyers don’t ever do that or want any part of that. Insurance defense lawyers whom I am up against are burdened by ten times the number of cases that I run. I know my cases one hundred times better than they do, but that is the luxury of my side of things. The problem on the defense side is that they get used to doing a competent job on a huge number of cases. Often, what happens is that in the process of moving cases along, the defense lawyer just gets used to being competent.