DUI flyer.jpgI don’t do criminal law. I’m New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting “busted” at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here’s how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a “note” like the one depicted above in a plastic baggie attached to the exterior of your driver’s side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don’t answer any questions. Don’t talk. The officer outside won’t be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no “probably cause” to arrest you.

car sale lot.jpgA New York Times article recently highlighted the consequence of many state’s “tort deform reform” laws: Victims of devastating corporate safety lapses can’t find a lawyer willing to represent them.

The article gives several examples of how tort deform reform is killing cases where corporate negligence has killed people. For example, a defective ignition switch caused a Wisconsin victim’s car ignition to suddenly power off, causing him to lose control of the car, hit a tree, and die. The car ignition failure also caused the air bag system to fail. G.M. had received many reports of similar incidents involving the defective ignition switch before this victim died. In fact, at least 42 people had died under similar circumstances.

Yet when the family went looking for a lawyer for what they thought would be a “slam dunk” case, they got the same response from every lawyer they turned to: None were willing to take the case because of a Wisconsin “tort reform” law limiting recovery “for loss of society” to $350,000. Because of the extreme expense – estimated at $300,000 — of suing a big corporation like G.M. for a complicated mechanical defect, it just did not make economic sense for a law firm to take the case on.

wshakesp.jpgAs long as there are lawyers, there will be lawyer jokes and lawyer insults. You can probably think of three lawyer jokes off the top of your head. I know I can. (Don’t worry – I won’t tell any in this blog post!)

But was William Shakespeare among the insult-hurling lawyer joke makers? Was the best writer of the English language among the mud-slinging anti-lawyer crowd? I ask this because of the famous line from one of his plays where one of his characters says, “‘the first thing we do, let’s kill all the lawyers”? This phrase is often bandied about as proof that the great bard hated us lawyers. And if Shakespeare – the greatest writer in the English language – hated us, shouldn’t all reasonable but less skilled writers and thinkers hate us as well?

In my opinion, and the opinion of many Shakespeare scholars, Shakespeare did not despise lawyers! Au contraire, he loved us. Shakespeare’s famous “kill all the lawyers” line was uttered by Dick the Butcher in ”Henry VI,” Part II, act IV, Scene II, Line 73. Dick the Butcher followed rebel Jack Cade who thought that if he got rid of law and order, he could become king. Thus, when Shakespeare has Dick say, “the first thing we do (to take over government), let’s kill all the lawyers”, he is really giving a kind of backhanded compliment to lawyers. He is saying, “if you want to illegally take power and set up a totalitarian regime, you need to first get rid of lawyers who will stand in your way”.

flowerongrave.jpgNew York, unlike many other States, does not allow the family of a wrongful death victim to recover for emotional grief. All they can really recover is “economic loss” (medical and funeral bills, loss of financial support, etc.) and compensation for the decedent’s “conscious pain and suffering”. In many cases, however, the death is so quick there is no real “pain and suffering”, only a short period of fear or anxiety about the impending death.

No matter how short, however, any New York personal injury lawyer worth his or her salt won’t underestimate the value of pre-death terror compensation. In terms of dollar-per-second of suffering, no claim is worth more. Why? Because the jury wants to do something for the family and, if the death came on quickly, there is often no other way to compensate the family.

For example, let’s say your loved one was hit head on my a negligent truck driver who crossed over into her lane. The force of the collision instantly killed her. The jury thus won’t be able to give you – the family – anything for her “pain and suffering” after the collision. But it is pretty obvious that, at least for a few seconds before impact, your loved one “saw death coming” and was probably very fearful of what was about to transpire. In New York, those few seconds of anguish are compensable as “pre-impact terror”. Most juries will make those few seconds of anguish very expensive for the negligent truck driver’s insurance.

slience.jpgNew York State has a new rule — §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts — requiring attorneys to omit or redact “confidential personal information” from court-filed papers. The “confidential personal information” includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor’s initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.

Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk’s office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.

This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices “motions” attaching “pleadings” and deposition transcripts, which traditionally contained private identifying information (client’s date of birth, ss number, etc). At Michaels & Smolak we have been proactive in protecting our clients’ personal information. For several years now we have refused to disclose our clients’ social security numbers in any “pleadings” or other publicly filed documents. When we are required to disclose such information to our opponents, we do so “off the record” so that the information won’t inadvertently show up in any public filings.

judge.jpg.jpgLegal malpractice trials, which have always been kind of weird, just got weirder. In a case of first impression, the New York Court of Appeals in Grace v. Law recently held that the failure of a plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been “likely to succeed” in his appeal.

Say what? What does all this mean?

Let’s say your lawyer messed up your New York personal injury trial. He forgot to call a key witness. The jury found against you. You sue him. His defense? “Hey, maybe I should have called that witness, but if you had only appealed the trial result to the appellate court, maybe you would have won. We’ll never know because you never appealed. Therefore I win because you can’t prove the appellate court wouldn’t have given you a victory.”

tell story.jpgA good personal injury trial lawyer is a good story teller. That’s what it takes to win a trial. A trial is really about competing stories. Whichever side tells the best, most compelling, and most believable story, wins.

That’s why a good personal injury trial attorney shuns boring power point presentations with bullet points. Charts, graphs and bullet points are ok to a certain extent. But they had better be quick, colorful, and add to the story.

Why are stories so powerful at persuading juries? That’s just the way us humans evolved. Ever since we learned to speak we have been sitting around the fire telling stories that explain everything: The beginning of the universe, the cause of thunder, the creation of us humans. We are hard-wired that way. Our brains “perk up” when we start to hear a story. We pay attention. We get emotionally involved.

joan rivers.jpgJoan Rivers went in to the clinic for a routine throat examination and came out dead. She died after she was anesthetized and her renowned medical team took souvenir “selfies” of themselves posing with her. Meanwhile, the doctors did not notice her vital signs trailing off. Fifteen minutes went by. Joan Rivers then went into the cardiac arrest, which deprived her brain of oxygen, which in turn led to her death eight days later.

Investigators have found numerous violations and irregularities during Ms. Rivers’ treatment.

Rivers’ daughter has announced she will file a New York medical malpractice and wrongful death lawsuit against the clinic and the doctors. The allegations will likely include a failure to properly monitor her Propofol – the sedative administered intravenously during the procedure. This is the same drug that Michael Jackson overdosed on.

images.jpgLast Friday I argued an appeal in the Second Circuit Court of Appeals at 40 Centre Street in Foley Square in downtown Manhattan. I had not done that I quite a while (a decade?).

When you are used to arguing appeals in State court, a Federal appeals court is somewhat intimidating and awe inspiring. But what first impressed me was the security. It is much stricter even than an airport. I flashed my attorney I.D. to the guards, fully expecting to avoid having to subject my possessions to scanning via the conveyer belt. I was wrong. My attorney I.D. was worthless in that Courthouse. Worse, I was told I had to leave my I-pad, I-phone or any other electronic device with Security. No exceptions.

My heart raced! I had my Brief, my notes, and even the entire Record on Appeal for my case in my I-pad. Then I remembered I had outlined my arguments the old-fashioned way on a yellow legal pad, too. I checked to make sure the yellow pad was in my brief case. Whew! It was there.

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