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

NeuwirthLawAuto 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.

NeuwirthLawCase 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?

NeuwirthLawAuto 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

NeuwirthLawCase 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.

 

The Constitutional Challenge to Donald Trump being on the ballot in Pennsylvania

NeuwirthLawCourts, In the News

I think it is safe to say that Trump’s eligibility as a candidate will be challenged. There was a long article by Judge Luttig in the Federalist magazine of all places making the case for Trump being disqualified under the 14th Amendment’s disqualification clause for those who aided, abetted, or gave comfort to insurrection, when they had previously sworn an oath to defend the Constitution. I have no idea whether this will succeed or not. I can assure you that the argument will be raised by democratic challengers.

I handled election cases for a while earlier in my career because they were fun and interesting and involved rapid evaluation and argument. Cases in PA involving statewide office have original jurisdiction in Commonwealth Court before a single justice and then are appealed directly to the PA Supreme Court. The case will get a rapid appeal up to the Pennsylvania Supreme Court regardless of outcome in Commonwealth Court. One of the amusing things about the election dockets is that there is a huge pressure to have them heard and resolved before the ballot is printed and distributed. So, that means that most challenges to someone being on the ballot are resolved in the two months between submitting their paperwork and petitions and the ballot being ready. That is very fast for lawyers and the Commonwealth Court sets aside a large chunk of time every election cycle for these cases.

So, does Trump get on the ballot? It is hard to game this one out. On one side, the current Pennsylvania Supreme Court has a democratic tilt and you would guess that they would side with the Constitution’s disqualification clause. On the other hand, the fundamental presumption of every election case is that the Courts would prefer that a candidate be on the ballot for the voters to decide rather than have the Courts make decisions. I could see this being a very, very tough call for the Supreme Court judges. The United States Supreme Court has made clear that it will leave a lot of election and ballot decisions to the State Courts. However, I would guess that the PA Supreme Court’s ruling against Trump being on the ballot would be appealed rapidly to the US Supreme Court and there would run into a republican court, which would place him back on the ballot.

That’s my best guess. Nice try guys. Now, fight it out at the ballot box. Nota bene or p.s. or fyi, a lot of lawyers will be paid a lot of money and lose a lot of sleep getting back to this point.

Ah, ye olde Concussion… or Traumatic Brain Injury.

NeuwirthLawUncategorized

 

So, I am currently recovering from a mild concussion following a lovely bike ride through Plymouth meeting. I was finishing a 45 mile ride and was trying to figure out which car was going to go through a three way stop when I think I hit an unexpected section of milling and paving. I flipped sideways and cracked my helmet and banged my head, wrist, butt, etc. A lot of people stopped to check on me, which was nice but also told me the crash was worse than I thought. There is some research that helmets with the MIPS system reduce concussions, but I had chosen one without MIPS because it looked cooler. I am not sure that it made a difference, but I am going back to MIPS.  I have crashed before and had concussions before. It is just part of riding. Anyway, I’m in one piece. I ride about 1800 miles a year, but many of them are in the metaverse in my basement. It’s dangerous outside.

Anyway, concussions are often hard to value for personal injury cases. Most resolve in three months or less. Some linger for 6 months. A few will come with post-concussion syndrome that involves convergence disorder. This is a very concerning condition where your eyes simply do not focus well post-concussion and that creates all sorts of problems in our reading and device driven world. Interestingly, while concussions are hard for the average person to understand or relate to, convergence disorder is diagnosable and objectively provable. This makes my job easier. Saying that you feel like you are in a fog, or nauseous or light sensitive or have headaches, however true, is hard to turn into a real big settlement or verdict. Another condition that is worrisome post-concussion is vertigo. Often, vertigo is harder to objectively establish, but most people suffering vertigo would not wish it on their enemies and are severely compromised.

Motions in Limine and Products Liability

NeuwirthLawCase Matters, For Lawyers

I am getting ready to go to trial on a products liability case involving a wire cup brush that removes paint from metal. A piece of metal shot off the brush and impaled my client in the eye blinding him. He had taken off his safety glasses to check his progress and restarted the device before replacing them on his head. In products cases, the focus is on the product, not on the user. If the product is dangerous and defective, the company cannot defend itself by arguing that the person was negligent. The goal in these cases is to encourage safer products.

For the litigators out there, motions in limine are an important necessary evil. These are motions or requests to the Court to keep certain evidence in or out. For example, I have a case coming up where there were many complaints about the product at issue before and after my client was injured. The complaints were made on line through the Home Depot website and responded to by the manufacturer. Many complaints were noted to be by “verified purchaser”. To me, these are admissible for a variety of reasons. To the defense, they are internet ephemera and hearsay. How the judge rules on these will be an important piece of the case. To either side, denial of this motion in limine sets up a ground for appeal as it will be a significant issue in the case.

On a higher or more generic level, motions in limine serve the above purpose, but they also signal to the other side and to the Judge that you are a serious lawyer. The judge in my case and I have never met. We have interacted briefly on a conference call a year ago. She will never get to know me by reputation etc. until the trial is over and done with. So, these motions are the first chance to really start showing the Court that this is a serious case, worth her concern, and that the lawyers are dealing with serious issues etc.

Often, once motions are filed and responded to, I consider the trial to have already begun because in order to file these, I will have read the depositions, collected exhibits and really drilled down into what is helpful or harmful in the case. The same is true for the other side. So, the case is now getting distilled down to what matters and what the jury will hear.  This is helpful for us as lawyers and helpful to the parties to work towards settlement. Often, an experienced judge will talk informally to the parties before trial and before ruling on the motions in limine and say essentially, I have not decided on these and it could go either way. I think you should explore settlement.

In every case I have tried recently, judges are fairly no nonsense about these motions. Usually there are a bunch of uncontested or insignificant ones and one or two that matter. As usual, we shall see how this case turns out.

Things to Know

NeuwirthLawCase Matters, In the News

The Trump Show: I am going to sit down and read the trump indictments this weekend just to say I read them.

Favorite Song of the Summer: Benee’s Song: Green Honda (watch it below).

Get a Microphone!: If you participate in Zoom calls and are required to speak, please get a good microphone for your computer. I use a mic by Blue.  It’s like $150 but makes a huge difference. Everyone can hear me and I like to be heard. Unless you are a defense lawyer and cannot afford one or your insurance company client won’t pay for one. But, then you made your bed and have to lay in it.

Safety Razors: Some wizard in marketing is trying to make a comeback for safety razors, which are the things my dad used to shave in the morning. By the time I started shaving at 6 or 16, as I am hirsute, gilette had already come up with improvements. But, being a sucker, I paid 15 for a new safety razor and blades and after three shaves, I am done and into the trash it goes. What a waste. Minimal blood loss, but I can safely say that I view safety razors with the same curiosity that I view the amish horse drawn buggies. Nice for you, not for me.

Lawyer as Negative Feedback Loop and The Fair Share Act

NeuwirthLawAuto Accidents, Case Matters, For Lawyers, Insurance, Sue The City

I view myself as a professional vengeance machine. The penance or vengeance I get is in money terms and never quite the revenge people wanted and rarely ever complete, but it is a form of retribution. What do I mean? If someone crashes their car into you and hurts you or your family or just simply postpones maintenance until someone is hurt, you are going to find me or another lawyer eventually. I then get to act for you and get some measure of revenge for the other person being negligent. Retribution. So, the car driver or landowner, or their insurer gets a sharp stick in the eye and you as the offending driver or landowner see your insurance rates go up etc. That is the negative feedback. If you don’t like bullies or smug corporate fat cats, this is a great profession. I can pretty much drag in anyone who screwed up and make them look like a fool. It’s my special gift or superpower.  If you are sitting across the table from me, odds are that someone was badly hurt and the only question is why you failed them.

However, there is often a hitch in the feedback loop. There are cases I simply cannot take because they make no sense businesswise. I have to avoid these like the plague, no matter how attractive they are for the avenging angel side of my personality.

I am in the middle of one such case that I took. I may regret it from a business perspective, but I could not look away. My client died at a large intersection in Northeast Philly in a car accident. He was driving 82mph, by all accounts. A pickup truck driver turned left in front of him causing the crash. Usually, the driver making the left turn is at fault nine times out of ten. Here, the speed is certainly a mitigating issue. But, eventually, the City disclosed that there had been 425 accidents, many with injury at that location. 425 is a very big number. Were there plans to fix that intersection? No. Will that be the focus of the case? In the words of famous wordsmith Sarah Palin, you betcha. Will some blame go onto my deceased client? You betcha.

In Pennsylvania, we have a law called the fair share act that seeks to apportion blame or liability and hence compensation based upon the amount of fault in the incident.  This will be a classic case about the application of the Fair Share Act. If you have questions about this or other cases like it, let me know.

So, what is the current state of the Union?

NeuwirthLawFor Lawyers, In the News, Uncategorized

Many of my neusletter readers are professionals and folks with advanced degrees. Many of my clients are middle class or poorer people. The gap between these worlds is rather stark. There was a news item today that binge drinking (5 or more drinks in a sitting) and marijuana use among 35-50 year olds is at record levels and that alcohol related deaths in the retiring baby boomers are also at record levels. So, people are not coping as well these days across the entire economic spectrum as pre-pandemic. I think that that is fairly well-established. Plus, people are behaving worse in public, particularly on airplanes. I don’t know why people choose airplanes as the best place to take a stand for their principles or behavior, but there are better places to do that. I used to think that acting out inappropriately in public was a function of the Real Housewives tv series showing just how ridiculous people act with each other. Unfortunately, common decency seems to have fallen far below the Real Housewives level. I lived in New York on 9/11 and the City really, really came together for a while after that event. I think that we would all rather live in a situation where the Greater Philly area came together, without the need for an international crisis event. Just saying.