So if you want learn a tad about why the Jewish New Year doesn’t fall on the first day of the calendar new year, for instance, head over to Ron Coleman’s Likelihood of Confusion where he hosts Blawg Review #280. He also gives us the inside scoop on what happened this past week, legal-wise, while you were off enjoying the last week of summer.

And to those celebrating the New Year, L’ShanaTova Tikatevu.

You see, an examination of the article reveals that the surface wasn’t safe. So let me summarize this post before you read the rest:

• Surface not safe
• Child injured
• Blame the laywers

Now let’s pick up where I left off, with the second link; an editorial to the business-minded Investors Business Daily. After relying on a few anecdotes to support its position that lawyers are clearly to blame for children being miserable, the paper starts quoting “authorities”:

“There is nothing left in playgrounds that would attract the interest of a child over the age of four,” Philip K. Howard, lawyer and author, wrote in the Wall Street Journal in 2008.

And then there is similar quote from Olga Jarrett, a Georgia State University professor, from remarks given to (surprise!) a tort “reform” group:

She blames “a fear of lawsuits that makes some school systems and cities design playgrounds that are completely uninteresting to kids.”

Oddly enough, my kids have no problem finding things that attract their interest on the playground, and they are clearly past the age of four. But then, my kids are looking to play, not looking to score political points in the debate over tort “reform.”

The editorial says that “America’s litigious society has changed the way kids play.” Well, yes and no. They still use the monkey bars the same way. But they aren’t doing so over a concrete surface, are they?

In the parks we’ve gone to over the past years, we’ve seen an abundance of swings, slides and things to climb on and scamper over.  I see happy faces running up, over and around equipment that was far safer than the public parks I went to as a kid. The only thing I see missing from my youth is the merry-go-round you stood on that others would spin ’round and ’round ’till you puked or were catapulted off onto the concrete. I know, some people liked to see their kids in danger.

Perhaps Investors Business Daily would like to return to the days of dangerous products, exploding Pintos, crippled children and Dalkon Shields. Perhaps. Unless, of course, the family member of one of the writers was hurt. Then, I’m sure, they would be singing a slightly different tune, like so many others.

Now about that photo of the kids on the swings  you see up at the top right?    That is a Turkewitz family photo shot by dad around 1967 in our backyard. I’m the kid in the red pants furthest from the camera, with my brothers and cousins scattered about. And note the soft surface my father installed. Even way back then we knew that you don’t want kids playing on equipment over dangerous surfaces.

Meanwhile, his wife Catherine Zeta-Jones is fuming at doctors for not diagnosing it months ago.

“It makes me furious they didn’t detect it earlier,” she told People magazine in its latest issue. “He sought every option and nothing was found.”

When people fume about the perception of bad medical treatment, they often turn to lawyers. And those lawyers will look at exactly what tests were done in the face of the complaints being made.

Now I have no idea if this will result in a medical malpractice suit. I haven’t seen the records and I merely opine based on press accounts. But anger is one of the great motivating factors for hiring counsel to investigate whether medical malpractice occurred. When folks aren’t angry, and they get apologies from medical personnel for instance, suits are less likely.

And that isn’t just my opinion. In a 2008 story in the New York Times (Doctors Say ‘I’m Sorry’ Before ‘See You in Court’), medical professionals are found to be increasingly agreeing:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs…

Now I presume that Douglas and Zeta-Jones are more than a bit comfortable, financially speaking. And any suit that might be contemplated wouldn’t be about the money. In fact, the money might be so small relative to their wealth that if suit were filed I could easily see it accompanied by a statement that any recovery would be donated to a charity.

And such a suit would not just deal with whether doctors acted reasonably. For even if there were departures from accepted care, they would still have to prove that the delay was medically significant. All I see from the story is “months,” so much is obviously unknown to the public.

One should not presume, by the way, that just because a celebrity (or his/her family) brings a malpractice suit, that a jury will ignore evidence and side with them.  After John Ritter died from an aortic dissection, a medical malpractice and wrongful death suit was brought. While some defendants had settled, some defendants refused. And it was a defense verdict despite the big name at the center of the suit.

The context of today’s assult is the $20B in funds offered up by BP to settle Gulf claims, and management of the fund by Ken Feinberg. Feinberg has quite the recent portfolio, managing this fund, being the “pay czar” for companies that were bailed out by the government during the recession (from which he stepped down to become engaged here), and also managing distribution of an extraordinary $700M+ funds related to settlement of claims related to 10,000 responders to the September 11 attack.

So what did the Times do? In an editorial today it discussed the virtues of the new fund being run by Feinberg, and that this was preferable to lawsuits. The paper then went on to claim:

Given his reputation, experience, and the amount of money on the table, it is clearly in the interests of every victim of this spill to give this program a careful, unemotional look. We probably cannot expect the lawyers to act responsibly.

The Times‘ justification for this assault is the presumption that, if one is going to go through the BP fund, then one doesn’t need a lawyer. In so claiming, the Times displays either its utter ignorance of proving the elements of an economic loss, or it elects to turn a blind eye. Because all claims are not equal. Some are difficult and need experts. The shrimper with the W2 is one thing, and the new business owner who was making investments in the business at the time BP recklessly wrecked Gulf waters is something else. Proving that future loss won’t be easy.

And it isn’t just shrimpers and beach resort businesses that are hurt, because as they go down, so too do the brick layers and bread makers that depend on those people. An entire economy suffers, and proving the relationship to the oil spill won’t be simple for many. There will be a billion shades of gray for the manner in which people were affected by the spill.

Does the Times seems to suggest that Feinberg will simply pay claims without the expert analysis that’s needed in the evaluations? Will the  claims simply leap off the table and magically prove themselves to Feinberg without effort?

In one sense, this is like a trial on damages only, with liability already established. But you still must prove those damages to the finder of fact. Perhaps many of the claims are simple. Most assuredly, many are not. Only a fool would walk into the forum unarmed.

The outrageousness of the Times‘ lawyer bashing is brought home with the irony of Feinberg’s involvement. For he also oversaw the September 11 Victim Compensation Fund and has been, to nearly universal acclaim, an outstanding public servant. And that 9/11 Fund saw over 1,000 lawyers working as part of Trial Lawyers Care, representing most of those directly injured in the attack and the families of those killed. Those lawyers did so on a pro bono basis.  It was then, and remains today, the largest distribution of free legal services in the country, and I was a proud (albeit small) part of it. Nobody knows better than Feinberg about the extraordinary efforts put forth by the legal profession.

And yet, the Times merely assumes that, despite history to the contrary, lawyers will act unethically by giving advice that is contrary to the interests of their clients. I expect such crap from the Post, not the Times. Perhaps the usual editorial writers were away this week on vacation, and they left the interns in charge. For the piece surely wasn’t written by anyone with a lick of common sense.

Except, of course, when you get back to work after some well-earned days at the beach and find your desk piled high with things to do so that you can actually help the people that you represent. Then the sunny days in the waves, and the wildly changing skies of the approaching storm disappear. As do the squeals of laughter from the little folks that you towed to the beach and the parks.

And not only is there work to do, but there is  a half-marathon trail race to plan for a few hundred of your nearest and dearest soon-to-be best buds.

Oddly enough, under those circumstances, blogging seems to fall off. But this blog ain’t dead. Not by a long shot. It’s just that its author has been a  bit busy playing, running, working and living.

I’m pretty sure that Mrs. NYPILB was happy I was away from the computer. As were Thing 1 and Thing 2.

And I know for sure the Things were thrilled to return to the scene of last year’s Great Tushy Event, when their mom had a butt-busting ride on a water coaster that sent her to the ER, and made us all contemplate the concept of assumption or risk.  Mrs. NYPILB, oddly enough, opted out of the water park this year, telling me I would save the money from her admission. She would go shopping.

But since I wrote about the butt-busting last year, I figured I ought to have some legal or consumer oriented blog posting from this last vacation.

So on the way out of town, when we stopped at the outlets to stock the ever-growing offspring up with duds for the coming school year, I stayed on the lookout. Surely something would catch my eye.

And it did. I took one last snap with the iPhone at the Converse Outlet store in Rehoboth, Maryland. And as you can see from the photo, the outlet is selling sneakers that originally had an MSRP of $25. And they are selling them  for the low, low price of $29.99 after first marking them up to a suggested price of $30.00. (You can click the image to enlarge.)

It’s worth noting the deal on the other box as well, with an MSRP of $30 marked down to $29.99. Wow. Are these some kinds of deals from an outlet store or what?

I’m not going to say this is illegal, or course, but just a reminder to the consumer in all of us that things aren’t always as they appear to be.

♪ ♫ Summertime, summertime, sum, sum, summertime…♪ ♫

But I’ve also come home to see 2,000+ stories in my RSS feed. No, I will not read them all. Or even most.

I will note some roundups (or round ups, or round-ups; your pleasure to hyphenate or bifurcate), however, to others that have destilled the awesome greatness of the legal blogosphere and plucked the very best for your persusal. Or, althernatively, some bloggers who simply linked to stuff they found interesting.

Mastectomies, Rental Cars, BP, Discrimination, Drugs – and Other News (The Pop Tort)

News of Interest for Lawyers on August 10th (Ron Miller - Maryland Injury Lawyer Blog)

Legal and Safety News Round Up (8/10/2010) (Brett Emison @ InjuryBoard)

Legal News Round-Up (Alan Crede – Boston Personal Injury Law Blog)

August 13 Roundup; August 12 roundup; August 11 roundup (all from Overlawyered, which does these daily)

Non-Sequiters (Above the Law)

Grand Rounds (the medical blogosphere’s equivilent of Blawg Review, which sometimes hits the junction of law and medicine)

Health Wonk Review (which often hits the medical-legal angles)

Cavalcade of Risk (hitting the insurance business angle)

And, of course, Blawg Review, hosted this week, in the dog days of August, with a Chicago Blackhawks Stanley Cup theme.  It’s like Crazy Eddie’s Christmas sale in August. Only with lawyers.

[The Personal Injury Law Roundup over at TortsProf is on summer hiatus.]

I pose this question because last week a split opened among New York’s appellate divisions on the subject, thereby setting the issue up for a battle in the Court of Appeals.

Last week in Roman v. A1 Limousine the Appellate Division (Second Department) held that even though the plaintiff might show that the defendant was negligent as a matter of law, he must also show “that he was free from comparative negligence.” In other words, even if the court can resolve some of the liability issues on the papers, the court won’t grant summary judgment if any other liability issue remains outstanding. Partial summary judgment doesn’t exist, even if some of the issues are slam-dunk.

The decision stands in sharp contrast to the First Department’s February decision in Tselebis v Ryder Truck Rental, Inc. In that case, the plaintiff in a two vehicle wreck had no recollection of what happened, but the defendant “testified that he entered the intersection against a red light and did not see plaintiff prior to the impact.” The court reasoned:

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury.

While the First Department was quite clear in stating that “it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence,” the Second Department was equally clear in rejecting the reasoning of the First. The Second wrote:

…contrary to the Appellate Division, First Department’s statements in Tselebis, CPLR 1411 was not relevant to the issues presented herein. CPLR 1411 codifies the rule that any culpable conduct attributable to the plaintiff, including his or her negligence or assumption of risk, does not bar the plaintiff’s recovery of damages, but shall diminish that recovery in proportion to the culpable conduct of the defendant. CPLR 1411 pertains to the damages ultimately recoverable by a plaintiff. It has no bearing, procedurally or substantively, upon a plaintiff’s burden of proof as the proponent of a motion for summary judgment on the issue of liability.

Why is this stuff important? First and foremost  is that, in New York, interest doesn’t start to run until there is a judgment (unlike many other states where interest runs from the date of the accident). With interest running, at a statutory rate of 9%, the defense benefits of stalling quickly exact a price for a tactic that shouldn’t exist at all.

Summary judgment also potentially removes the need for an expert (depending on the facts).

Most importantly, though, it sharply delineates the issues that need to be resolved by a jury. If the liability of one side can be established as a matter of law, why should a trial take place on those issues? Why would a court want to further drag out and complicate the litigation?

The Second Department is arguing, wrongly I think, that in order to have summary judgment on liability in must be complete and total on all liability issues. But why should partial summary judgment on some liability issues not be available to litigants? Isn’t it part of the function of the court to remove the extraneous, and have trial only on those issues where there is a factual dispute?

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

Queens County, Supreme Court

It happened again to me today. I arrived for a Preliminary Conference in Queens. The conference was scheduled for 9:30. I was there on time, as I always am. Defense counsel sauntered in at 10:35. No pre-conference phone call to indicate she would be late. No excuse when she appeared. No apology. And nothing to indicate she actually gave a damn about the concept of professionalism.

The problem sits with the courts. They schedule a gazillion conferences for the same time, and then lawyers sit around waiting, and waiting and waiting. If you have a single appearance to make, and the other side has three or four, you can be forced to sit there while the other lawyer runs around billing his or her time. Or maybe the other lawyer just wants to sleep late.

But, no matter the reason,  it’s being done on your time if you were acting conscientiously and actually showed up. I wrote about this problem last in 2008 (see: How One Brooklyn Courtroom Wastes $10M Every Year). And if you then need judicial intervention on an issue, you have to wait in line with all the others.

Abraham Lincoln once said that “A lawyer’s time and advice are his stock in trade.” Indeed.

Perhaps one day, maybe even in my lifetime, the courts will figure out how to stop squandering all of our time and wasting so much damn money (time = money).

There are a couple of options:

1.  Schedule the conferences at staggered times. If a lawyer has a conflict,work it out at least 3 days before. Sanction those that are late; or

2.  Many of the conferences can be done by phone without the court. At least 90% of the details, and often 100%, can be worked out by the lawyers. Let the remainder, those that need intervention, be done by conference call with the judge.

The only problem with this is that much of the defense bar still bills by the hour. Those of us that work on contingency have every incentive to get the job done efficiently. The late-arriving lawyer in today’s conference, if she billed today’s appearance, probably claimed at least three hours for it as we didn’t get out until about 12:15. Don’t forget to add the travel time.  But we could have been done by 10:15. And if a court forced the lawyers to do this stuff by phone, we could have done it in even less time.

Now magnify all that lawyers’ time against the huge caseloads that sit in the New York City courts. The millions of dollars in wasted legal time add up fast. That is time spent just sitting there in addition to the travel time.

While it is true that it would cost additional money for the courts to implement this solution, it could be paid for by raising the bi-annual registration fees of the bar. They currently sit at $350, to be increased to $375 come September. But I’d gladly pay $500, if it saves me the wasted time in the courthouse. It would be, perhaps, the single most cost-effective fee increase in the history of the New York courts.

In steps Walter Olson, of Overlawyered fame, displaying once again why he is a master blogger; Linking directly to someone who criticizes him.

In his July 26th round-up you will find this little note:

• An injury lawyer reads and reacts to my first book, The Litigation Explosion [Alan Crede]

Now most folks don’t know who Alan Crede is, as he is a relative newcomer to the legal blogosphere. But the cite Olson gives is to an exceptional post on the poverty of new ideas in the tort “reform” movement, of which Olson has been a pretty big player for awhile.

But whereas most bloggers would ignore such criticism, or silently fume, Olson links to it, showing the other side of the coin to consider. Crede’s points may be good, or not, but it is for the reader to decide.

Not too shabby. And a damn good lesson for new bloggers trying to understand how the blogosphere works in its many  interlocking ways.  Good bloggers don’t view the visitor as a one-shot deal, but as a recurring reader. If you write well and provide quality links when deserved, the readers come back. Google made its fortune, its worth noting, by sending people away from its site.

Take note also that Crede “gets it” with respect to blogging, as he likewise linked to Olson’s sites at Overlawyered and Point of Law (though Olson has now moved from PoL to Cato).

KENNEBUNK, Maine — Former President George H.W. Bush’s fishing boat ended up high and dry on a beach near his Maine home after it ran aground in thick fog.

Now what is so wrong about that that it inspires a blog post? I’ll tell you. The boat didn’t just run aground. Someone most likely caused it to run aground.

Let’s take that language now into the courtroom, and consider an accident at an intersection. This is the way two skilled trial lawyers will try to present it:

Defendant: The accident happened.

Plaintiff: The Defendant caused this car wreck.

For the most part, accidents don’t just happen. I dealt with this back in May when Kentucky Republican Senate candidate Rand Paul seemed willing to give a free pass to BP and its friends who dumped so much oil into the Gulf of Mexico. He wasn’t happy that President Obama criticized BP:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

It’s true that acts of nature may take over, such as the lightening strike that fells a tree right into the path of a car. One might argue that acts of nature are even more likely at sea, given waves and fog, but it is just those types of foreseeable risks that a captain must consider. Only something unexpected would allow the act of nature defense to come into play.

Acts of nature are not how most accidents occur. Returning to former President Bush, the article goes on to give this explanation:

[Bush spokesman Jim] Appleby says Bush was close to shore in low visibility when a wave pushed his boat onto the beach.

It seems to me that if he was running his boat in low visibility it really isn’t fair to blame the boat (“it ran aground”).

And that type of passive language is just the thing that plaintiffs’ lawyers should be on the look out for and ready to counteract. “It” didn’t just happen. Someone most likely made it happen.

Photo credit: jcfmbost, via Flickr