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

 Posted on August 23, 2023 in Courts

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.

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Ah, ye olde Concussion… or Traumatic Brain Injury.

 Posted on August 23, 2023 in Uncategorized

 

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.

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Motions in Limine and Products Liability

 Posted on August 23, 2023 in Case Matters

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.

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Things to Know

 Posted on August 18, 2023 in Case Matters

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.

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Lawyer as Negative Feedback Loop and The Fair Share Act

 Posted on August 18, 2023 in Auto Accidents

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.

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So, what is the current state of the Union?

 Posted on August 18, 2023 in For Lawyers

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.

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Flo and Progressive

 Posted on August 09, 2023 in Auto Accidents

Progressive insurance has decided that it wants to be more like State Farm. Sort of like DeSantis trying to be Trump.  Snake Farm has developed a reputation on my side of the fence for being exceedingly unreasonable on offers and settlements. This is very well known in the business of insurance lawyering. Does this help their bottom line? I don’t really know. What is clear is that State Farm’s business is not doing well because their claims paid exceeded their policy premiums. Is that the result of poor decision making on evaluating claims? I don’t know, but I would like to think so. If you are a State Farm customer or now a Progressive customer, you can probably expect to find yourself a defendant in a lawsuit if you cause an accident. Many other companies, that care about their insureds, will settle cases pre-suit so you don’t have to be sued. Not progressive or snake farm.

Recently, I had a client rear ended and he needed surgery due to the crash. No real dispute there. The man had the surgery. There is only $15,000 in coverage due to that being the PA state minimum. The man’s case is worth $300,000. Progressive will not tender or offer its policy limits.  Why? Because that is not their current policy. It is stupid and bad faith. But there is no such thing as suing your adversary’s insurer for bad faith. What could happen is that Progressive will force this to go to Court, the case will proceed, and they will eventually offer $15,000 for the man. An indigent client may take that. From my perspective, the ideal resolution is that the client rejects that $15,000 and we take a verdict of $300,000. Then, we turn around and say to the defendant driver and Progressive insured, pay me $300,000 minus the $15,000 insurance. The defendant says I cannot afford that. We then say, well your insurer could have settled the case for $15,000 but chose to expose you to $300,000. Would you like to assign your bad faith claim to my clients in exchange for our forgoing the claim against you for all of your assets forever? Yes, kind sir, where do I sign, he would say. Then, we would have a very nice case against Progressive. Progressive is banking on this not happening, but not infrequently, State Farm must pay verdicts that are 10 times the amount of the last offer. So, we shall see how this plays out.

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How Does Where You Live Affect Your Ability to Obtain Justice/Vengeance

 Posted on August 09, 2023 in Case Matters

This is a weird self-perpetuating conundrum. If you live in a rural venue, the quality of justice you will receive is far less rewarding than you would receive for the identical event in Philly or Pittsburgh. Outside the major cities in Pennsylvania, voters are fairly conservative or far less democratic and hence liberal in their views. This more conservative bent is a major factor in deciding whether I will file a medical malpractice case for you in a rural county. The answer is almost always nope. And even simple auto cases get lower values in the rural areas. It is just the way it is. So, what is happening is that people in more rural areas do not get the justice or vengeance that they would like to get as compared to their more urban fellow citizens. The result of this is that there is less of a negative feedback loop for medical providers in the area. There are fewer malpractice suits and even bad instances of malpractice are not brought because the reward in the conservative venue will not outweigh the costs of pursuing the case. This then perpetuates a view among my more conservative clients that life is not fair and that they are not entitled to the same justice as one would get in Philly. They are right, but the reason that they are right is wrapped up in their desire to live in a more rural, conservative area. You don’t get big jury verdicts in conservative venues. It will happen periodically, but it is unusual. I once had a now-retired judge in Delaware County tell me that jurors there toss around nickels like they are manhole covers. And Delco is not near as bad as more northern or western venues.

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Things That We Should Change

 Posted on August 09, 2023 in Case Matters

  1. The state minimum insurance coverage is $15,000. This has not changed for years and is simply unfair to 75% of my clients.
  2. Limited tort is simply a scam crafted by the insurers. Don’t have this on your auto insurance.
  3. Fetterman should wear a suit to the Senate. I have to wear a suit to Court. I got chastised recently for appearing on Zoom Court with a shirt and tie but no jacket. I was surprised but went and got my jacket….. not my hoodie. C’mon man.
  4. The government needs to do something about the ATV riders in Philadelphia. It’s simply absurd. I was driving around north Philly the other day to see a client and the noise and recklessness of these riders is comical and pathetic.

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Pan Mass Challenge Completed

 Posted on August 09, 2023 in holiday

I had a nice 200-mile ride across Massachusetts this past weekend. The weather was about 72 degrees and partly sunny, which is perfect weather for cycling. We have raised $50 Million so far as of this weekend and probably will get to $70 Million. Not a bad haul and all rider dollars go to Dana Farber. My team, Brooklyn Love, did great as usual. For six people from different backgrounds, with ages ranging from 45 to 70, we all rode the ride at right around 17mph, which is not too shabby. On our own we would have gone about 15mph, but the draft from 5,000 people around you gets another 2 mph, which ads up over the course of 200 miles.  Anyway, a lovely weekend!

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