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I recently tried a personal injury case in Philadelphia County, Pennsylvania. My client asked me before the trial started whether there was going to be a video recording of his trial. He observed the videographer set up equipment, but I explained  this was for the playing of the expert deposition testimony that had been taken a week before the trial began. He wanted a video copy of his trial. I explained to my client that the judge would not allow the trial to be videotaped for a variety of reasons, and that I had never seen it done before. But it got me thinking, why not videotape entire  trials?

Certainly my client’s case, though very important to my client and to me, was not a high profile case. What would be the point of memorializing the trial on video? To keep as a record of one’s life? After all, the court reporter was recording the trial without video, so that a transcript could be made in the event of an appeal. I offered that to my client, but explained that it would be expensive because we would have to pay the court reporter for transcribing her recording page by page. My client declined.

Ultimately we must balance the positive and negative consequences of videotaping entire personal injury trials. I think at a minimum it would make for a great teaching tool. Law school students as well as anyone, including trial lawyers, who are students of trial advocacy would greatly benefit from seeing themselves and others try cases.

I place myself in the group of trial lawyers who are always trying to improve their trial advocacy skills. Lawyers are required to take Continuing Legal Education classes as one of their State licensing requirements. In Pennsylvania, lawyers must take at least twelve credits of classes per year (about 3 full day classes per year) to retain their licenses. Most trial lawyers, myself included, focus on taking trial advocacy courses. There is always more to learn. The laws change. Technology improves how we can present evidence in the courtroom. A trial lawyer must stay on top of that information. So, I’d love to see and review my own trials, to critique myself and have other lawyers critique me.

Is this likely to happen? Not anytime soon; this despite the fact that an entire trial can now be recorded on an ipod or Droid. In other words, non intrusive technology is readily available to all of us, but it is simply not favored by the courts.

I read an interesting article on point in the Wall Street Journal by Cameron Stracher, a media lawyer in New York. He was commenting on the fact that only sketch drawings of the admitted Times Square bomber Faisal Shahzad were allowed from the courtroom. Here’s what he said about the continued ban on video recordings in the courtroom.

It can't be a concern for privacy or decorum: For better or worse, high-profile trials (the only ones anyone is interested in) are a media circus even without cameras in the courtroom. The only explanation is that judges don't trust technology, and actually prefer imprecision to exactitude....In other words, imprecise drawings are OK; accurate photographs are not. Similarly, verbatim written transcripts are not problematic, but a sound recording capturing the nuance of a person's voice poses a real threat.

 

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Paul Davies, deputy editorial page editor for the Philadelphia Inquirer, did not hold back in his Sunday opinion piece. Basically the gist of the article is that, as the title of the article says, "Abraham lays blame on everyone but herself."  He's talking about the investigation by a U.S. Subcommittee headed by Arlen Specter into the problems of the Philadelphia Criminal Justice System raised in recent news articles in the Inquirer. Here's some of what he says.

While Abraham was questioning the stories, she also acknowledged many of the problems they highlighted. But she said none of them had anything to do with her. Instead, she blamed judges for low conviction rates, saying they dismiss too many cases to clear their dockets, which may be true. She said the problems surrounding the bail system and witness intimidation have been around since at least 1968 - a not-so-subtle dig at Specter, who was district attorney then. 

Because I don't  work in the area of criminal law, I am somewhat unfamiliar with most of the issues raised in the article- backlog of criminal cases brought to trial, low conviction rates compared to other cities, and so on.

I do know from handling civil rights cases where Philly cops have injured or killed people while on the beat that there is frequently insufficient investigation by the Police Department and perhaps the DA's Office in those types of cases. In one  recent case I represented the family of an individual shot by a police officer. Now, the individual who was shot had a gun. But what I found out during the discovery process and my investigation of the case was that the Philadelphia police officer who had shot and killed my client had been involved in several shootings in his relatively short career up until that time.  In fact, he was in one where he had shot and killed a suspect while in uniform, as he had been in the case I handled. The circumstances of both case were similar. When I pointed this out to the defense attorney representing the officer, I distinctly remember her saying "some lawyers like to litigate, and some cops lite to fire shoot their guns." That case settled.

I personally know many law enforcement officers. They are dedicated professionals and they by and large  and by design intend on going through their entire careers without discharging their guns in the line of duty if they can.  That's why the recent case I just described was so unusual. And, the Police Department was unconcerned about the two shootings buy one Philly cop  in a relatively short period of time. I hope going forward changes in the investigation process by the City of Philadelphia where Philly cops injure or kill people while on the job will be better than what I have seen thus far.

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Joyce was convicted in November 2008 of defrauding  two insurance companies of $440,000 -- $390,000 from Erie Insurance Group and $50,000 from State Farm Insurance Company. His case stems from a personal injury claim he made involving a low speed rear end collision that happened in 2001.

His criminal case went to trial in Federal Court, and the jury found him guilty of  insurance fraud, specifically for mailing false information to the insurance companies about the extent of the injuries he suffered in the car accident. Joyce told the companies his back and neck pain was so severe that he could no longer golf or scuba dive, though Joyce continued to engage in those and other activities. Joyce also claimed his injuries were so severe that he was unable to run for state Supreme Court in 2001 and 2003 and further that he had secured the state Republican nomination for a vacancy on the state Supreme Court, but that the injuries prevented him from running. His conviction was upheld by the Third Circuit Court of Appeals in April 2010.

It is certainly disgraceful that a Superior Court judge would participate in this kind of ruse. Nor does it bolster confidence in the Pennsylvania judicial system. Consider what the public must think about our judges when reading about Joyce, and about other Pennsylvania jurists gone bad. I've written before on this blog about the "cash for kids" scheme in Luzerne County which has resulted in the guilty plea of former Luzerne County Judge Michael T. Conahan and pending charges against former Judge Mark A. Ciavarella. Should we expect better conduct form our jurists? Of course we should. 

But, let's specifically examine what Joyce did, and what it means for any individual claiming personal injuries. It's not hard to see what he did wrong, and what he did to draw attention to himself.  Did he exaggerate his personal injuries? Possibly, but maybe not.   We obviously do not have access to his medical records. But perhaps they do support a claim that would warrant a substantial settlement from two insurance companies. Keep in mind that he had to have medical records to bolster his injury claim. No insurance company is going to offer any injury victim $50,000 and $390,000 without medical evidence of the injury claimed, for instance MRI and EMG results showing objective evidence of injury to the spine, as well as other medical evidence. Insurance adjusters are well trained at evaluating medical records, (or they have nurses or doctors to review more complicated records for them).

Did he also fluff up his wage loss claim? It sounds like he did. It also sounds like he had no real way to prove his wage loss claim.

What Joyce did was lie to the insurance companies about how the injuries affected his activity level, both in his personal life and in his professional life.  He exaggerated how the injuries affected his life. Did the insurance companies who paid him money conduct videotape surveillance or other forms of investigation on Joyce both during the pending  injury claim and after it settled? You bet they did. That's what they turned over to the federal prosecutors. (The prosecutors also used the testimony of Joyce's ex-fiancee. She apparently did not help Joyce out when testifying about the sporting activities she witnessed him participate in). 

Was Joyce a target for prosecutors due to his status? Possibly. But every personal injury claimant is a target for prosecution if that claimant gives false information to an insurance company. Insurance adjusters are not only trained in evaluating medical records, they are also well trained in spotting exaggerated claims, (although Joyce's case sounds like it wasn't that hard to spot).

A word here on what is required to truthfully and accurately prove wage loss. In proving your wage loss claim (which is in essence what Joyce was trying to do when he claimed he could not run for the State Supreme Court) you, the personal injury claimant, will need proof of medical injury and disability from a treating doctor in the form of a disability report; and to prove past lost wages you  will also need proof from your employer that you were unable to work.  Ultimately your doctor and your employer may have to testify at trial, and they will testify from the documentation that they provided in your case. Proofs in a lost earning capacity claim or future lost wages, as well as past and future lost wages for a self employed individual are a little harder to put together, but certainly not impossible. Nevertheless, true, accurate and credible documentation to support your lost earnings, wage loss, future lost earnings, lost earning capacity and the like is what is required. Unsupported and unsubstantiated documentation of wage loss will only get you in hot water.

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Apparently it is, or was,  Vivian T. Miller, and she's quitting, and her daughter, Robin T. Jones, is taking over the job. I didn't know who these folks were until I read  an article about them in the Philadelphia Inquirer written by Karen Heller. Here's what Ms. Heller writes in her March 10, 2010 article "Fairwell to the 14th Century."

Clerk of Quarter Sessions Vivian T. Miller tendered her resignation Monday after being roundly criticized by everyone and his mother for running a bloated, obsolete, and thoroughly incompetent hackatorium that failed to keep records on $1 billion in forfeited bail.Naturally, Miller was praised by city leaders. Ecclesiastes was quoted. Miller intoned, "I go in peace, love, and harmony," which isn't easy to do in Philadelphia. ...Miller first ran for clerk of quarter sessions promising - and I quote from an Inquirer article of May 1991 - to "upgrade accounting and financial-management practices. She also plans to institute professional training and development programs for workers and to upgrade record-keeping procedures," pledges she didn't honor to this day....The office originated in 1682, and became an elected position in 1838. The very premise of quarter sessions dates to 14th-century England, the reign of Edward III, requiring justices of the peace of each county to meet quarterly at Epiphany, Easter, Midsummer, and Michaelmas....Miller will step down at month's end, replaced by first deputy Robin T. Jones, who is also, as these things tend to happen here, her daughter. Nepotism is discouraged, if not prohibited, in most businesses but apparently mandated in Philadelphia government by the City Charter.

Lynn Marks, executive director of Pennsylvanians for Modern Courts commented on the resignation by saying "it's time with a capital T to have this office abolished and absorbed into the courts.It's sort of ironic to have such an old-fashioned name when our society is becoming increasingly modern and computerized."

Vivian Miller did not modernize the internal systems of the office that she was responsible for, was resistant to technological changes, and could not account for a ton of money that, in these difficult financial times, the City of Philadelphia sorely needs.

If I operated my business the way the Clerk of Quarter Sessions ran her office, I'd be out of business, and my clients' cases would be down the tubes. I am constantly upgrading my systems, including my computer systems, solely to be more efficient. This makes me a better lawyer, makes my firm a better law firm, and my clients benefit from that.  I have to be accountable to my clients and to the Courts.

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God bless the dittoheads-(blind followers of Rush Limbaugh logic).

Last Friday for about an hour in the first half of the Rush show they had something to cheer about. But then they realized Limbaugh got fooled by a blog post.  Limbaugh reported that his researchers had discovered that  Joe Klein, a Time Magazine reporter, had unearthed ten pages from a college thesis, not the complete thesis mind you, in which President Obama allegedly wrote, as an undergrad student at Columbia, that the Constitution was a rag designed to enslave the masses and that the founders were behind the conspiracy to do so. The whole thing turned out to be a hoax by a blogger.The problem for Limbaugh was that he only found this out halfway through his show.

This is what he said when he found out that the basis of his ravings about Obama that day, which basically consisted of telling his audience that Obama was not patriotic enough to be qualified as President, were untrue.

Limbaugh must know President Obama quite well, right? He has to  know what's in the President's heart, right? Obama could have written something like the thesis and probably has, (even if the thesis turned out to be a joke pulled on Limbaugh) according to the Limbaugh logic.

Limbaugh actually said when he realized he'd been had:

"So, I can say, "I don't care if these quotes are made up," "I know Obama  thinks it. You know  why I know Obama thinks it? Because I've heard him say it."

Ah, the dittoheads have to suffer on.

Really I just wanted to put the Limbaugh non apology /non mea culpa audio on my blog. I couldn't resist.

I have tried to tie this in somehow to my areas of practice, or to litigation generally, so hear goes a few comparisons. True stories from recent cases I've been involved in.

• A defendant in a car accident case testifies at a deposition in which she admits rear-ending my client that "it was barely a tap..I didn't even know I hit her." The defendant couldn't understand how my client got hurt. This despite the fact that there was extensive rear end damage to my client's car and extensive front end damage to the defendant's car, and that my client had to be removed from the scene by an ambulance.

• "I know that I cleared the sidewalk of ice. It was in real good shape. When I left Friday I threw some salt down." That's what a defendant store owner testified to at his deposition in a fall down case in which my client fractured her leg requiring surgical repair including the placement of metal plates and screws to put the bones back together.  The fall occurred on a Monday night. The store owner never returned to his property to inspect it, put more salt down or shovel the sidewalk until Tuesday morning. The snowfall came down on the prior Wednesday, five days before the plaintiff fell.  Fall down accidents can be difficult cases. In this case, there was actually a videotape showing my client walking from the bus stop over a mound of snow, at night, following the heavy snowfall a few days before, and walking on a clear portion of a neighboring sidewalk before stepping onto the defendant's sidewalk which had a narrow path which turned out to have been covered in a thin layer of black ice. Everybody in the neighborhood and particularly in the area where the plaintiff fell  had managed to do a pretty good job of clearing the sidewalk, except this defendant. Somehow, in his mind, the condition of his sidewalk on the night in question wasn't his responsibility.

• A defense attorney  files a brief with the court alleging that he is entitled to my personal notes from a focus group which I hired pre trial to evaluate my client's case. The problem is, the law is crystal clear that my notes are protected attorney work product that the defense attorney would never be entitled to get his hands on.

None of these stories compare to the Limbaugh defense of "I think it therefore it must be so." I guess the lesson to litigants and those involved in litigation generally here is fess up if you what you are saying won't hold up. Credibility is a very powerful tool. Use it to benefit you. Take a lesson from the flawed logic of Rush Limbaugh.

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The legal system as a rule is slow in adapting technology. For instance In the federal courts,e filing, that is, the filing of pleadings and other legal documents on line,  is mandatory; but of the local counties, only Philadelphia mandated e filing in January 2009. In most other counties you can check dockets, but  that's about it.

How about in jury trials- can or should jurors be able to text or tweet about the goings on in the courtroom? No way. It jeopardizes the reliability of the ultimate verdict.Jurors going home at night and searching Google for information about the case they they are sitting on? It just does not work that way. Allowing jurors to do that would be equivalent to throwing the rules of evidence out the window.

And if you text in court and you are a participant in the proceedings? Forget about it. You could find yourself in jail. That's what happened to Susan Henwood, mother of four, in April 2009. A Utah judge found her in contempt of court for texting her husband, who was not in the courtroom at the time, " they're coming for the Polaris Ranger", a pick up truck owned by the Henmans which was part of a collection dispute. She spent two days in jail for warning her husband in advance to move the pick up so it could not be scooped up in the collection case.

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Maurice “Hank” Greenberg was the poster child for tort reformers. The insurance industry loved him. Hank is the  84 year old former chairman of AIG. (AIG has changed it's tarnished name  since the taxpayer bailout). Hank never liked the fact that the average guy injured through no fault of his own had the right to sue to seek fair compensation. Here's a portion of a "tongue and cheek" description of Hank Greenberg from the July 2006 issue of Trial magazine.

It took Hank nearly thirty years to build a multibillion-dollar fortune.  Throughout those years, Hank was constantly being victimized.  He was victimized by a civil justice system that forced his company to pay for the medical bills of individuals injured by his insured.  As if that wasn’t enough, he was most recently victimized by Eliot Spitzer, the New York Attorney General who has alleged that Hank made his billions through illegal business practices.  Thanks to Mr. Spitzer, Hank was kicked out of the company he built, and he was even forced to transfer over $1 billion in assets into his wife’s name.

Hank loved to beat up on trial lawyers. In February 2004 he compared the debate over reforming class action litigation to the White House's 'war on terror'…. It's almost like fighting the war on terrorists," Greenberg told Boston College's Chief Executives' Club. "I call the plaintiff's bar terrorists." So let's get this straight. Right after 9/11, he's referring to a group, whose positions he opposes, as terrorists!

Yesterday Greenberg agreed pay $15 million to settle fraud charges filed by the Securities and Exchange Commission. The charges stem from an accounting scandal that led to Greenberg's resignation as the head of AIG in 2005. The next year, AIG paid $1.6 billion to settle charges that it manipulated its financial statements.

Greenberg's legal troubles are not over.  He faces civil fraud charges by the New York Attorney General and remains under criminal investigation in one manner  relating to AIG's accounting issues.  Federal prosecutors, who brought a criminal case against one AIG executive who was convicted last year of inflating AIG's reserves by $500 million in 2000 and 2001 through fraudulent reinsurance deals, have identified Mr. Greenberg as an unidentified co-conspirator; basically they believe he took part in the fraud scheme but didn't have enough evidence to convict him, the Wall Street Journal reported today.

By the way, how much money did the bailout of Hank Greenberg's AIG cost the United States taxpayers?  At last count  $182 billion. Hank fleeced AIG's shareholders to make his billions, exposed AIG to massive liabilities, and now the taxpayer is left picking up the former tort reformers' poster child's mess. What happened here?

The true face of tort reformers has been exposed for what it really is.

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No. They can't afford to. Not in this economy. Not in any economy. It makes sense for states to outsource to avoid unnecessary overhead. California is issuing IOU's in lieu of checks to their vendors. If the Attorney General of the State of California approaches a trial lawyer for purposes of pursuing private litigation on behalf of California, are the citizens of California well served. You bet they are. Trial lawyers take on cases on a contingency fee basis, at great risk to themselves because there is no guarantee that they will be paid at the end of the case. Their financial success in the case is contingent on their successful litigation and trial of the case. They bear all the costs. The state typically pays none of the costs. Trial lawyers act as private regulators where the state legislature cannot or will not act, or where the state attorney general lacks the resources to prosecute. 

Pennsylvania Governor Ed Rendell has been bashed in the media of late, recently in the editorial page of the Wall Street Journal, for participating in this practice. The case involves Pennsylvania's hiring of a Houston law firm, Bailey, Perry & Bailey to litigate a case against Jansen Pharmaceuticals over the marketing of it's antipsychotic drug Risperdal. The Bailey firm contributed to the Governor's campaign. Certainly this is an unsavory fact, but not necessarily grounds for disqualification.

The Wall Street Journal editors are wrong, however when they state that the Pennsylvania Supreme Court's intervention before the litigation is concluded is "remarkable." Not so. The Court is responding to the defendant's request for an interlocutory appeal, which is encouraged by the Pennsylvania Rules of Civil Procedure to address issues which may have a bearing on other cases or which may curtail the litigation in the case at issue.

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This is not another story about Vince Fumo. He's old news waiting for sentencing.

This a story of a former surgeon general of the United States appointed by President George H.W. Bush, Dr. Antonia Novello. Last week she pleaded guilty to a felony in a deal with prosecutors to avoid prison time for having New York State employees  perform personal chores for her when she was the State of New York Health Commissioner  from 1999-2006. The guilty plea requires Dr. Novello to perform 250 hours of community service at a health clinic, pay $22,500 in restitution and pay a $5,000 fine.  She also pleaded guilty to filing a false document pertaining to her description of one of her employee's duties.  She faced up to 12 years in prison if the plea had not been reached.

Novello had used state employees to provide free transportation for her on shopping trips and to perform various chores like moving furniture in her apartment.

Her lawyer said the prosecution was politically motivated.  I am sure she was appointed by  then President Bush because of her political leanings.  Nevertheless, when will politicians learn that they can't use public funds in any fashion for their own private means?

Dr. Novello was paid $256,000 per year in her job as health Commissioner. Unemployment presently stands at 9.5% nationwide.  $256,000 per year was not enough for her?

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