If you are a litigator, it’s time to get out the popcorn: Donald Trump Civil Trial

 Posted on October 03, 2023 in Case Matters

So, there are a lot of things that the general public does not know about litigation in the real world that lawyers who actually litigate cases consider litigation 101. Trump’s trial is going to reveal the basics to the public I guess.

What are the basics so far? 1) request a jury trial at the time of your first pleading. In New York, you have to simply check a box.  In Pennsylvania, you have to check a box when you file a complaint. Or, the defendant can request one in their answer or first pleading. It is pretty basic stuff. You always request one. It adds $400 or so in cost to the first filing of the lawsuit, but it covers your tail and you don’t have to think about it further. You can ALWAYS withdraw your request for a jury trial. So, Trump’s lawyers failed to do that. That is pretty basic malpractice in my mind unless there was a memo saying save the $400 or do not request the jury trial. For Attorney Habba to stand up in Court and ask why there was no jury trial, suggests that she did not read the case file, which is embarrassing. It also seems like nobody wanted to tell Trump about this error. I would guess that he will file a malpractice claim against Habba and/or refuse to pay her bills. Odds are that he is not paying her bills and her firm is going to be on the hook for a lot of lost time.

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What’s new in Mass Tort Law? Phillips CPAP and Hair Straightener Litigation

 Posted on October 03, 2023 in Case Matters

I was recently contacted about a developing mass tort situation involving Phillips CPAP machines and decided that the client did not have a case. The issue in these cases is whether a connection can be drawn between cpap machines and a patient’s cancer. After reviewing the literature and the patient’s pathology report it appeared that the one thing I could be sure of was that the patient’s cancer was not caused by the CPAP machines. How do I know that? Well, the pathology report noted that the tumor staining revealed HPV. HPV is a highly contagious human virus. It could come from a lot of sources, but not from the CPAP. So, no case.

CPAP machines are a widely used device for sleep apnea. They basically help you have continuous oxygen flow while asleep. However, they have been found to have filters that basically either cannot be properly cleaned or leach carcinogenic fumes directly into the user. So, Phillips has now recalled ALL of its CPAP machines and paid a $700 million plus fine. That is not a big fine for them. The question is whether the machine recall and carcinogenic fume discharge can actually be tied to a particular patient’s cancer. This is a developing situation.

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You Get What You Pay For: Mediation

 Posted on September 27, 2023 in Case Matters

You cant always get what you want—but you’ll find—you get what you need.

 

I am in the middle of negotiating the end to a case with clear liability, clear damages, and some thorny legal issues. When I get towards the end of a case, mediation is often a way to resolve it. I rarely arbitrate cases these days. Mediation is basically a negotiation where both sides want the case to settle but cannot get close on settlement figures for various reasons. So, the parties turn to a mediator. Many of the courts offer a free mediation and we get all prepared to mediate the case and have it resolved only to find that the judge mediating the case is not nearly as effective as the private mediators that we all use on a regular basis. But, the court mediation is free. So, you paid nothing, but got an insufficiently effective outcome.

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How to Build a Book of Business or Are You Hungry?

 Posted on September 21, 2023 in Law Practice Management

So, “how to” is the most searched term in the internet. Interesting right. It makes sense. How many of us have ever searched how to build a book of business? For lawyers and professional services businesses like CPA’s or architects, building a long-term book of business should be important if you want to succeed.  There are rainmakers and the worker bees, but you can ensure a long career if you are a rainmaker and not a worker bee. Worker bees are fungible. It’s SAT word day here at Neuwirth Law.

I am currently looking to meet professionals who don’t know me. If you want a free lunch and have a law degree, a CPA credential or an M.D. or D.O., I will come to you and lunch is on me.

I have a family member who I keep trying to send business to. They are a young lawyer, but they are always too busy to hop on the phone, talk to the client, and analyze whether there is a case there or not. I am referring the case because it is not my area of the law and I don’t know if it’s a case or not. I know another lawyer who worked an entire career as a defense lawyer for insurance companies and never had to and hence never did build a book of business outside of the insurers who sent them cases.

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How Much Does The Personal Injury Client Affect Settlement and Deposition Preparation?

 Posted on September 12, 2023 in Case Matters

It matters a lot. Are you a Roger Federer type or Novak Djokovic? Some people are just very genuine, approachable, and likeable people. Others are not. Most of us are somewhere in between. But, those likeable guileless people are going to get a better settlement for the same case. Why? Well, more than likely the deposition displayed the plaintiff as he or she is and the defense lawyer saw it and communicated that to the insurer. Even in cases that I have handled where liability is a close call, often we get the case settled because the plaintiff was just such a nice genuine person that jurors would just melt at their story.

 

For example, I had a client who was fairly hurt coming home in a Lyft car from a church service. The church was her social group and she was there on a Saturday night. The defense lawyer asked if she was drinking and if that was why she took a Lyft car. The client said she does not drink as her church forbids it and is one of the many paths to evil, but that she understood why the defense lawyer would ask that and it was a good question. Now, I certainly did not prepare her to say that, but I knew that her personality would come through as the person she was. Did it matter to her case? Yes, because the defense lawyer just had to chuckle and tell her insurer that you did not want to go up against her in court. The jury would love her and hand her a pile of money.

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What happens When You Win a Motion for Summary Judgment or What I did this weekend on my way to Tenerife?

 Posted on September 07, 2023 in Case Matters

 

Tenerife you say? I had a chance to go visit the Canary Islands over the Labor Day holiday weekend and Tenerife is one of the largest and most visited islands in the chain. It’s a long but entertaining story. Anyway, the Islands are a bit like Europe’s Caribbean, I think.  Beautiful, volcanic islands off the coast of Africa and nearish to Morocco. They grow bananas and welcome tourists.

Anyway, while it’s supposed to be a vacation, I brought in my carry-on luggage 7 deposition transcripts and a few highlighters.

Why? Well, after a long five month wait, the Federal Judge in my slip and fall case against TSA decided a Motion for Summary Judgment in my client’s favor and now trial is on the front burner. So, I was reading transcripts to identify motions in limine subjects that I want to have the court consider.

While motions for summary judgment are rare in personal injury cases, the motions in this case addressed the discretionary function exception, which I have written about previously. In the Judge’s opinion, she agreed that the TSA floors at the Philadelphia Airport are slippery and while I always believed that to be the case, it is now a fact according to the finder of fact.

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

 Posted on September 07, 2023 in Auto 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.

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The Trump Situation: One Case Is Usually Too Much for your average client.

 Posted on September 07, 2023 in Case Matters

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.

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Here is an Un-Triable Case: So, what do you do here?

 Posted on August 29, 2023 in Auto Accidents

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.

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Medical Malpractice: Easy vs. Tough Calls

 Posted on August 29, 2023 in Case Matters

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.

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