Category Archives: Law

In a holding pattern…

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Trial was scheduled to start today.  I’ve got nine witnesses in my case, so it’s a pretty big deal for me – could take as long as two weeks and I’ve got over $1.5 million in lost wages to show the jury.  Also, a significant sum has been offered, but it’s not enough.

New Jersey trial courts are extremely congenial and the Judges and their staff are terrific to work with.  One problem is that the state has had to cut down on the number of judges, so cases have to wait to be tried.

On the one hand, I could get all grumpy about spending so many hours last week and all weekend getting it ready and being mentally prepared to get the show on the road today.  That being said, that’s just not how my job works.  So, whenever I get the call, whether it’s tomorrow or next month – I’ll just tighten everything up, call my witnesses and go do what I do.

My opinion of civil justice and our jury system is, temporarily, quite low

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I just finished a two day trial and got an horrendous result. Disappointment is part of the reality of trying cases; I know no attorney who has won every trial. Sadly, my clients were two of the nicest, most genuine people I’ve had the privilege of knowing, let alone working for. But it is the nature of the beast that I sometimes get very good results for less deserving clients and much worse results for folks like the couple I worked with this week.

My greatest annoyance right now is that the jury did not give the case proper consideration. They made a VERY wrong decision on one aspect of the case in order to avoid even discussing the other issues. They did themselves a favor and took a shortcut, just to wrap up their duty a little quicker. I know this because the Judge spoke with them after and then explained to me once they left. Perhaps this jury would have reached the same decision if they had given proper consideration to all aspects of the case, but that’s not the point. They were lazy and took the easy way out. It was appallingly disrespectful to my client who was injured in an automobile accident and her husband, who was by her side throughout the trial.

Even with this disappointment and outrage, I continue to feel that trying cases is the most exciting aspect of my job. I had wonderful clients to work with and all my examinations and PowerPoint presentations went smoothly. There will be more inattentive and lazy juries in the future, but I will keep fighting for my clients and finding new and better ways to prove their cases.

A quick recap… And now a funeral.

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Dr. and Mrs. Arthur Schneeberg

The world is turning rapidly under our feet.  This can not be avoided, but it need not always be celebrated.

Last Thursday we attended the successful settlement on our first home.  It is a bittersweet moment because it means leaving the city limits of this glorious and frustrating town.  I wish I had the money to be a stylish, bohemian intellectual with a beautiful row home in a safe neighborhood, but it ain’t gonna happen.  not now, anyway.  I’m taking my liberal politics and my strange music to the ‘burbs.

In the midst of preparing for closing, I left a pair of work projects for the weekend.  this meant several hours at the office on Sunday, when I should have been home packing for our move 0 which is just a few short weeks away.  One thing I was not working on was a trial that has been listed several times, but for one reason or another, has never gone forward.  My clients grow weary of the hurry-up-and-wait approach that the Courts insist on.  Because the matter had been listed so many times, I am ready.  I just have to drag all my files and tech (computer, project and screen for power-point presentation and video testimony to show the jury) to Court and I’m ready.

So our latest listing for this trial was yesterday, and, low and behold, the Judge was actually ready for us.  He dismissed us for the morning and advised us to come back after lunch to pick a jury.

As I pulled into the parking lot after getting my gear and a quick snack, I check email and learned that Arthur Schneeberg had died.  Arthur was my Mom’s first cousin and a man I had admired my whole life.  He was a gifted physician and a loving family member.  He was the most unassuming man, completely unpretentious.  Yet his level of scholarship about his work and religion always inspired me.  I am proud to be a part of his family.

So, instead of finally putting on my trial, the case goes back into the “waiting to re-list” category and today I take my Mom to a funeral.

Trial prep has taken over my life, temporarily

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Got a nice little case in front of Judge Fernandez-Vina starting tomorrow. I would much rather be telling you all about all the killer music that was added to the collection this weekend OR how we’re getting ready to pack up all our shit and move across the river.

All that will have to come later. For now, make sure you are up to date on Ms. Emily’s prodigious writing efforts. She’s carrying the blogging ball for both of us at:

See Emily Play

Stuck in Court all day

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2309-jury_box

That’s right – I got selected for jury duty.  Oh, the irony.  I sat in the assembly room at the Criminal Justice Center from 8:30 A.M. til about 10:45 and got a lot of reading done.  My panel of 40 finally got selected from the hundreds of people in the assembly room and we got taken up to the 10th floor.  Instead of going into the courtroom, we waited, standing in line in number-order, for about thirty-minutes while another courtroom was cleared.  That was not fun.  We then filed into the courtroom and got introductory remarks from Judge Trent.  Seems like a reasonable guy, but I’ve never appeared before him in my practice.

Since we were at the Justice Center, this was not going to be a civil case, but rather a criminal matter.  That’s a bit outside my realm of expertise, but there was never any question that I would get bounced from the panel and sent home.  The only question was how long it would take.  By noon, the Judge let us go to an extended lunch.  That didn’t help my prospects for a timely release.

As much as I tried to drag out my lunch, I still got back to the Courtroom at around 1:15.  That left another 1/2 hour of doing nothing.  And I forgot to mention – this was a pretty small case of drug possession with intent to distribute.  That means the defendant had enough crack to subject him to a stiffer penalty.  Normally, these cases resolve in a plea agreement of some kind, so I was at least curious to see why this one was being tried.  Of course, I also realized that that was never going to happen.

At about 2:15 we got addressed by the Judge’s clerk and brought into the deliberation room.  Remember, the jury hasn’t been selected yet.  We were all still prospective jurors.  Part of the long lunch break was used to interview the first ten panelists.  My number was 21.  After lunch, nos. 11-30 were jammed into the deliberation room that is supposed to comfortably accommodate twelve individuals, so it was a little tight.  One by one we were called back into the courtroom to be interviewed about our ability to serve on this jury.

My number was selected after about an hour.  I fell asleep at one point and started snoring loudly enough to wake myself up – embarrassing.  Anyway, I finally made it into the room.  I had no desire to serve on this jury, especially considering the two arbitrations I have tomorrow and a very important client meeting in a shooting case.  But, having been the one selecting jurors a few times in the past, I also had no desire to try to manipulate the process.  It was simply so unlikely that I would be selected, that there was no need to pull anything.

So I took my seat sometime after 3:15 and got very excited to finally have a speaking part.  As someone who never shuts up, it was very hard for me to be quiet all day, so this was my big moment.  It went something like this

Judge:  Your questionnaire says that you or someone close to you is involved in law-enforcement or a law-enforcement related field.  Please tell me about that.

Me:  My wife works for the Public Defender.

Judge:  Would that make it difficult or impossible for you to render a fair verdict in this case?

Me:  No.

Judge:  I notice from your questionnaire that you are an attorney.  What kind of law do you practice?

Me:  Mostly civil litigation.  My boss handles a lot of criminal cases, so I come to this building from time to time, but I have never tried a case here.

Judge:  Is there anything about your work or your boss’s work that would make it difficult or impossible for you to render a fair and just verdict in this case?

Me:  No.

Judge:  Thank you.  Please go into the other room and my personal assistant will be in to speak with you in a minute.

I was alone in a small room that had a bunch of juror badges that led me to believe that, even after talking to 21 of us, these attorneys had not yet chosen more than four of their twelve jurors.  As is often the case, jury selection was going to take longer than the actual trial.

I thought for a moment that I was going to be given one of those badges, but a moment later the Judge’s assistant came in and informed that i was done with that room for the day, but that I should go back to the assembly room, where I might be selected for another panel.  That meant more waiting, but at this late hour, I was pretty sure I wouldn’t have to go to another room.

Back in the assembly room, I waited a while longer and finally got my check for $9 and went home.

I realize people don’t want to go through this process and don’t want to sit trough a boring trial.  I feel like it’s a good exercise for me to see how it feels to hurry up and wait and then be forced to stand in a hallway with no knowledge of when we’re going to be allowed to move or why we are standing there.

Jurors are so important to criminal and civil litigation.  The prospect of taking a case to a jury is the single biggest factor in getting people to agree.  We never know what a jury will do and, fearing the unknown, we will do almost anything to avoid letting the jury decide our case.  I only wish there was some way we could treat the jurors with more respect.  I think that fear of the jury (or of what an individual juror may do) is a big part of why ‘the system’ treats jurors the way it does.

A Police Shooting Case

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I am exhausted. I guess I left the settlement memo for the last minute, thinking that, in cases like this, settlement conferences, like the one scheduled for next week, are a total waste of time. These cases are HARD, and the city invariably does not want to settle, especially considering that Philadelphia has no money.

Here’s the deal. A mother and her fifteen-year-old son are at home. The son is a troubled guy who has been away for a few months at a residential facility for kids who are having a tough time with conventional public schooling. Anyway, the kid is giving mom a hard time and she calls the cops.

Two officers arrive and, to make a long story short, the kid is at the top of the stairs with a clothes iron. A moment later, one shot is fired and the kid is fatally wounded in the chest. He eventually dies in front of his mom, right there in the living room.

So, the only question in my civil case (this is not a criminal matter) is whether the shooter believed there was an imminent threat to his life. The cops get huge leeway in this situation, and they should. Would you want their job?

So, I figured this case is just going to trial and that’s that. Why should I worry about the settlement conference? But the more time I spent reading depositions and looking at evidence, the more I thought we might get somewhere with this one. I mean, an iron? Come on!

I ended up working late and putting together something a bit more complicated and detailed than I had originally planned. Who knows? Maybe we can find some justice out there yet.

Hey, Republicans! Why can’t you get trial lawyers on your side like you did with Jews?

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A long time ago, back when Karl Rove was in charge, I heard from another lawyer that Rove’s concept of the permanent majority was to undermine the three-legged stool that supported Democratic funding: (1) labor, (2) Jews and (3) trial lawyers.

Back then, it seemed that the Jewish vote could be co-opted by people like Lieberman and Dershowitz, who appeared to be nice Jewish boys to people like my grandparents, but espoused views of inequality and hatred towards Palestinians (Ay-rabs) that was not unlike the hatred expressed towards black people in this country.  The irony was that so many Jew of my grandparents generation lined up on the right side of civil rights back in the 60’s.  But today, it seems like the Jewish vote is precariously balanced on the fence, probably out of hatred, fear and racism.  To a great extent, Rove has succeeded in eroding one of the traditional blocks of Democratic voters and funding.

In the case of labor, it seems like the unions have helped Rove create a cloud of suspicion over what they do.  Up until the recent introduction of the Employee Free Choice Act (H.R. 1409, S. 560), it has seemed that there has been fear, inspired perhaps by eight years of Rove/Bush, about increasing the ranks of organized labor and, thus, Democratic voters.  But the trend is encouraging.  Yes, there is virulent opposition.  I hear the fear-mongering ads on sportstalk radio (not just on Rush and Hannity) telling Joe Contractor, as he drives from home to his job in the pre-dawn hours, telling him that EFCA is about taking away the working man’s right to a secret ballot.  That’s a powerful argument, because it plays on the fear that we’ll have no choices under the fascist Obama regime.  At the same time, it’s not catching on.  Republicans just don’t seem to be winning to many points on this issue.

Which brings us back to my job.  I don’t sue doctors for a living; I enforce a patient’s rights, or more often the rights of a patient’s family because the patient is deceased.  In Pennsylvania and New Jersey, I have to go through hoops galore before I can even file a malpractice case – whether against a hospital, doctor, lawyer, accountant or any other certified professional.  These cases are incredibly expensive for the attorney, and if we make a single misstep I can be sued personally.  This is the system that people seek to reform.

Now, take a step back.  Before Cheney decided that Iraq could be overthrown and occupied for oil production under the false pretense that Hussein was somehow responsible for 9/11, in fact before 9/11 itself, this issue of ‘tort reform’ was a big concern of mine and many of my colleagues.  The lies back then were told about the woman who spilled her hot coffee from McDonalds, and how people wanted get rich quick whenever a doctor couldn’t save someone’s life, despite heroic efforts.  You were going to have to cross state lines to have your baby because the trial lawyers had chased all the doctors away.

Now a lot of these old stories are getting dusted off again.  It’s amazing.  After just a few weeks of winning the public opinion war, it seems that the goal of killing off the trial lawyers is starting to bubble back to the surface.  Any link to the current debate about essential healthcare reform is tenuous, but that should be no surprise.  We’re talking about the same people who brought you the ‘death panel’.

Remember, the last time around, the evil that needed to be cured was the exodus of doctors who couldn’t  afford high malpractice insurance premiums.  This time, the same cure (‘tort reform’) is being presented as a remedy to the malicious plan that Obama has hatched to simply bail out trial lawyers (we don’t need a bailout!) and harm the American public.  See if you can make sense of this article by Hugh Hewitt.  All our problems with health care and the uninsured would just go away if it wasn’t for those damn trial lawyers!

It’s one thing if Hugh Hewitt is blowing steam over at Townhall, but I think this is being picked up as a talking point.  Apparently Giuliani was pushing this same garbage on Meet The Press today.  This guy is supposed to be a moderate.  This is a guy who is supposed to be socially progressive.

So the Conservatives have their pound of flesh with Van Jones.  They have their month of  madness with death panels and guns at town hall meetings.  I knew Congress should not have taken that summer break!  And what I see is that they’re getting greedy.  But here’s an idea – why not come up with an agenda that favors social justice to the extent that the trial lawyer money, like the Jewish money, starts to get diverted to you – what about trying to win trial lawyers over?  Do you think you can do it?

Sometimes you just gotta go and act like a lawyer

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Courtroom-2

That’s good news, because that’s what I do for a living.  The more I do this work and the younger everyone else is around me (I swear I was in Court today with an assistant District Attorney who was no more than fourteen), I realize that the advice of my current employer is exactly right – “sometimes you gotta just go into court and act like a lawyer.”

When that particular direction was given, maybe only a few years ago at most, I wasn’t sure what to make of it.  You need to know all the rules. You need to know everything about your case.  You need to know everything about your opponent’s case.  You need to know every piece of law, every reported case, every statute, and every rule of Court that is pertinent to every part of your case.  And if you don’t, well you can just forget it, curl up in a ball of anxiety and shake with fear until your appearance is over.  You are either prepared or your are not.

Friends, I have some news.  Life in a small firm is not like that.  If I had a team of lackeys working around the clock on all 100+ of my cases, I could maybe achieve something close to that level of preparation.  But in my world (where it’s mostly just me), it is simply not possible.  Now, if there is a big civil trial that’s worth a lot of money, then you definitely crank it up a notch or two.  But there are times – lots of times in my practice – where there is a Court appearance that may have a big impact on my client’s life and I don’t have the best part of it.  No amount of preparation is going to change that.  This is especially true in a civil case where the client has waited too long to get an attorney, perhaps hoping that a problem will simply go away.  And when it doesn’t, I get called in to mop up.  I got no problem taking out the trash and mopping up, but sometimes, there is only so much you can do, despite the fact that I’m being paid, perhaps thousands of dollars.

That’s when you gotta take your best argument in front of the Judge, and, with absolute certainty and airtight conviction, make your case.  You may not have the best of it; you may hardly have anything to hang your hat on, but that’s not really for you to decide.  Let the Court take care of that.  Just make the case professionally and with as much logic and support as possible.  Make appeals to common sense and general principles of fairness.  Don’t get cute and don’t crusade.  Just lay it out so clear that a child could understand, with respect and deference to your adversary and (for the love of God) to the Court.

I had an opportunity to run this play last week and it went OK, especially considering I didn’t have a leg to stand on.  I was in Federal Court, where everything seems so much more important and serious (even though it isn’t), and I had a great Judge and a very young adversary – sometimes getting old is a good thing!  As right as he was, he was still nervous about his big appearance in that big room, and that really helped me.

I was clear enough about why my client had done the stupid things he did in this business dispute that the Judge had to think twice before nailing shut the coffin.  I had just enough chutzpah to live another day.  I was politely admonished, but at least given a chance to force my guy to do the right thing without having a judgment hung around him or his company.  The next thing that would happen is that the Sheriff would come to start selling stuff and we don’t want that.  I exploited some obvious irregularities on the other side and wove that into my thin argument to give it a bit more life.  In business, it is mostly the case that there’s a bit of wrongdoing on both sides when it gets bad enough to go to Court.

So that’s what I have to do sometimes.  It’s great exercise.  I imagine it’s a bit like acting.  I felt great after.  I felt like I had given my client substantial value and so far, he seems pleased.  It wasn’t my most lucrative day in Court, but it helped me learn a little more, even at this advance age of 37, about what I do for a living.

Scalia’s dissent in the Troy Davis death row case

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scalia

Sometimes I think people say outrageous things just to get headlines and feed their egos.  Here’s the money quote:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In re Troy Anthony Davis, 2009 U.S. LEXIS 5037, 7 (2009).

If you take that quote out of context, you might think that the esteemed Associate Justice is saying that it’s OK to execute innocent people.  I couldn’t believe that even this guy would say something so crazy.  I mean, the words are right there, but there must be something about the context of this statement that makes it make more sense.  So I went and read the short opinion, it’s only a couple pages long.  You know what?  he is saying that we can execute innocent people – as crazy as that sounds.

Now let’s take just a quick step back and understand what we’re talking about.  This is a murder conviction from almost twenty years ago.  As the execution date nears, condemned Troy Davis is seeing a lot of new evidence come to light, which not only establishes his innocence, but may also indicate who was the actual murderer.  Scalia’s point is: so what?  If people get screwed by the system, that’s too bad.  And if we execute an(other) innocent person, those are the breaks.  It’s not a perfect system, and the fact that we may have found enough irregularity in this case to establish ‘actual innocence’ doesn’t matter.  Everybody OK with that?

Paul Campos over at The Daily Beast offers additional illumination about why this is scary.  It’s not that Scalia delights in the execution of innocent people, although that possibility can not be ruled out.  It is the way he parades the law as an inflexible, quasi-mathematical standard from which we can never deviate that is so troublesome.  So, if we have a rule that, in a given case, we find out is wrong, it doesn’t matter because the rule is the rule.  People do not matter.  Reality does not matter.  Only the law and its brave defender, Associate Justice Antonin Scalia.

HEY! Don’t try to appeal a denial of Summary Judgment on the issue of qualified immunity before we get to trial – you’re not allowed!

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This issue has come up twice now, and state defendants just don’t get it.  Here’s the situation:  I represent plaintiffs making claims under Section 1983 of the Civil Rights Act.  Those claims often arise from police conduct that, at least from my point of view and that of my clients and their families, constitutes an excessive use of force, including deadly force.  But the law wants to give certain protections to the cops, and I think that’s fair.

One of these protections is called ‘qualified immunity’.  This means that the officer is not going to be liable for civil damages (payment of money) for shooting (and/or killing) someone if, at the time of the incident, the cop had a reasonable belief that he or someone else was in imminent peril of serious bodily injury or death.  The line that state attorneys love to use in closing argument – and they should because it’s REALLY effective – is that we can’t judge the officer’s behavior with the luxury of 20/20 hindsight.  We have to think about what the officer was thinking when the shit was going down.  Was that reasonable under those circumstance, without reference to outcome, like an innocent person being shot to death?

Normally qualified immunity is a question for the jury in these cases, but, invariably, the attorneys representing the police file what’s called a Motion for Summary Judgment on this issue.  Summary Judgment can only be granted if you take as true all the allegations of the party claiming a civil rights violation, and the cops would still win.  That means they get judgment on this issue in their favor, as a matter of law.

Now, why would I take a case against the cops if I didn’t have any evidence that they did something wrong?  There’s going to be at least one witness to tell the story my way, and if you assume that witness is telling the truth, as the Judge must in deciding the Motion for Summary Judgment, then I’m going to win the Motion.  It’s pretty much that simple.  It’s very hard for the cops to get these motions granted.  Of course, it’s very hard for me to beat the ‘Monday-morning-quarterback’ argument at trial.

So the Motion is denied, I win, and then we can take the case to trial and see what the jury thinks, right?  Well, you would think, except that the attorneys on the other side have started to get cute.  The name of the game in defending these cases is delay, delay, delay.  So rather than let the case go forward to conclusion, they try to go over the Judge’s head and get an appeal going even before we get started with trial.  Normally, that’s a no-no.  There are some instances where an early appeal like that can go forward, but that requires that you ask permission.  But no, these attorneys don’t ask permission.  They just think they’re entitled to this appeal and interminable delay as a matter of right.  They’re not.  And for those interested in proof that I actually work for a living – here’s my submission to the Court about why they’re not entitled to that automatic appeal.