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 Posted on April 19, 2023 in For Lawyers

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.

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 Posted on April 11, 2023 in Uncategorized

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.

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 Posted on April 11, 2023 in Case Matters

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.

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 Posted on April 11, 2023 in Case Matters

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?

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 Posted on April 05, 2023 in Case Matters

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.

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 Posted on April 04, 2023 in holiday

Finally, have a Happy Easter, Happy Passover, and Ramadan.  It is a lovely time to be in Eastern Pennsylvania as all our trees are flowering and it is really very pretty here for a while.

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 Posted on March 21, 2023 in For Lawyers

Nobody did focus groups better than Mad Men

Over the course of a typical year, I will conduct a focus group on one or two cases. The cost is usually minimal in relation to the overall case value. The purpose of running a focus group is usually to evaluate specific case issues and get a feel for how an impartial jury feels on seeing your case on first impression. For various reasons, using focus groups for determining case values is not particularly reliable.

A focus group collects panelists who reflect the typical makeup of your expected trial jury in the county where your case will be tried. We all prefer a representative sample of the educational level, racial makeup, political leanings etc.

Usually, I will prepare a reduced presentation of exhibits and an outline of the case. Since the defense is not present, I try to deliver a middle of the road presentation. Think about a just the facts ma’am, Sgt. Friday type presentation. The goal is not to argue one side or another. Rather, the goal is to ferret out how jurors feel about issues in your case that are problematic or will make or break your case.

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 Posted on March 21, 2023 in For Lawyers

I am always amazed at how some of the most notorious white collar thieves went astray. Girardi negotiated a $53-million settlement in 2013 for a young burn victim named Ruigomez, but told his parents the agreed amount was only about $7.2 million, according to the indictment.  Bernie Madoff stole billions of dollars running a non-existent trading operation.

Both of these men were highly skilled marketers and salespeople. Why they went astray is hard to fathom, but that is not my focus here. Rather, each of these guys was able to convince people, some educated and some not, to trust them on a scale rarely seen. Madoff did so by convincing people that it was a unique secretive privilege to be a client of his. Girardi preyed on the less educated accepting his word without question.  In another context, both men would have been super successful as large parts of the business world are dependent upon truly great marketers and salespeople.

If you were trying to market a successful business or conduct networking for a law firm, it might be worth it to spend a moment to study what these two were doing before things went awry. Having looked at both their stories, it is apparent that unlike many of us who are working lawyers, meaning working at our lawyer jobs, both of these men were 100% all in on marketing themselves or their operations.

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 Posted on March 21, 2023 in Medical Malpractice

There is a current recall on eye drops and eye ointments manufactured by Global Pharma Healthcare Private Limited, which is an Indian manufacturing company. Their over the counter eye products were detected to have bacterial infection and were intended to be sterile. So, if you use these products, you may be directly dropping harmful bacteria into your eye. Bad, huh? This is evidence of a manufacturing problem. However, without the FDA’s involvement and a resulting voluntary recall, infection cases are very hard to prove either as medical malpractice or as product liability. There are several reasons for this. The claim here is that the manufacturer’s procedures to ensure sterility failed and bacteria entered the drops before they were sealed and shipped to the US.

Unlike cuts to the skin or inhaled bacterial infections, the eye is very sensitive to bacterial infections. What may initially look like pink eye or conjunctivitis can rapidly lead to degeneration of the retina or delicate structures in the eye. While doctors can infuse antibiotics directly into the eye, the structures of the eye can permanently degenerate because you have a lot of bacteria in a small, enclosed space with limited circulation. So, infusing bacteria into your eye is bad and can and has already led to reports of blindness.

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 Posted on March 15, 2023 in Uncategorized

Recently, I took an extraordinary step that I don’t usually take. I am in the middle of a case involving three deaths. Through researching that case, I came across reports of another similar case in the area. I did not know the deceased’s family and ended up contacting them through a letter to which they responded. It ended up that they did not have a case that I wanted to pursue, but there are certain rules about how we as personal injury lawyers may pursue cases.

While we are allowed to send old-fashioned letters through the mail inquiring as to the need for representations, we cannot pay non-lawyers to hunt down cases for us. Second, we cannot call people who have just been in an accident and ask to be their lawyer.  There is supposed to be sufficient time between the traumatic event and the solicitation to allay the upset of the trauma.  Beyond that, there is a big gray area. If you want to read a great lawyer book called The Litigators, you will read about the Bhopal Union Carbide disaster and the flood of personal injury lawyers who jumped on airplanes to India with blank retainer forms to sign up clients. There is also the old commercial where a city bus crashes on a rainy day in front of a personal injury office and the lawyer’s dreary day turns sunny.

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