Saturday, April 28, 2007

Huge verdict in Albany personal injury case - $3.85 million

What a week! I had a trial in Albany (4/23 to 4/27) on a personal injury case involving a motorcycle - car accident. My client was on the motorcycle. An SUV came across the centerline and drove him into another SUV. Client's foot was partially amputated by the force of the accident itself, and he had a surgical below-the-knee amputation about 12 days later. The jury came back on Friday with a verdict of $3.85 million.

I'll post more about this later, probably on my injury lawyer blog, but I figured I'd just give a short description for now. Photo below gives you some idea.

Saturday, April 21, 2007

Interesting DWI case

I had a case some time ago where my client had been arrested for DWI. I reviewed a document I refer to as "The Green Sheet." This, technically, is what's known as a DWI Bill of Particulars and Supporting Deposition. Partial images of each from this case are below. I've intentionally omitted my client's name and the name of the Trooper (I have met the Trooper many times and like him, but even if I didn't like him it would be wise to leave his name out of it).

Note: If you click on the images you will see a larger version than what you will see on this blog. You may want to download the images to your computer and then zoom in with whatever image software you like to use.

First, from the top of the green sheet, is a part describing what my client allegedly did. Most notably, it asserts that my client had a BAC of 0.13. The per se limit for DWI is 0.08, so this would be well into the illegal range.

Next is a larger portion of the document. What's most interesting here is Section 6. There are a lot of blanks. At the bottom, time of test is blank. Location of test indicates State Police Albany. Witness to test is also blank. On the upper right the BAC is blank. It does indicate the unit they used to do the test, but it appears that either no test was done, or something was wrong with the machine. I should note that there is no indication my client refused the test.

I am guessing, and it's only a guess, that the 0.13 BAC reported in the first image comes from the breath screening test done at the arrest scene (at the bottom of Section 4). Those tests are considered unreliable by the courts and are not admissible in a trial.

So this is an example of a great DWI case to fight. Among other things, since there's no valid breath test, the client does not get suspended while the case is pending. Even a difficult DA's office is probably going to agree to take a case like this out of alcohol and reduce it to something like a speeding ticket.

This brings us to one of the frustrations of being a defense lawyer. The client just wanted the reduction to DWAI.
We had a great case to fight, one of the best I've seen to date. I normally do not try to talk my clients into what to do, but in this case I did push for the fight. I think the client just wanted it to be over.

Thursday, April 19, 2007

Off-topic - funny web ads

I saw these two web ads recently, and thought they were funny. The first is vaguely related to the blog. This appeared on screen while I was reading a gmail message. Look below that for the next one.

What caught my eye was "Bed Bugs Lawyer." I give them credit for getting my attention, though I couldn't find the part of their website where they actually do these cases.

The next one has nothing to do with law:

"Flate?" "Dropshiped?" I don't know what they're sellling, but I shur ain't bying it.

Tuesday, April 17, 2007

Assembly Line Justice

Our court system is so busy that the process has become assembly line justice. There are many reasons for this. The court system has one view.

The New York State Bar Association had a panel discussion today on the Justice Court system, which is composed of town and village courts. There has been an ongoing look at the system, propelled in part by a series of articles in the New York Times. I mentioned that series of articles in a post on my Stop Wasting Money blog sometime ago.

There were a couple of main ideas in today's discussion. One theme dealt with steps that are being taken to improve the justice courts, mainly focused on additional training for judges and staff, and also providing them with modern technology. The other theme was about the system itself, and particularly one key feature - the role of non-lawyer judges.

A number of lawyers (and others) think that it's wrong, and even unconstitutional, to have non-lawyer judges. I don't buy the constitutional argument for a second. The Justice Court system was in place when the Constitution was written, and I'm pretty sure there were some New York lawyers involved in the process. I understand the attraction some have to the notion that non-lawyers lack the necessary qualifications to be judges, but I just don't agree. At least one person today noted that most of the non-lawyer judges are qualified to be President. Of course, these days saying you're as qualified as the President is not a terribly strong argument, but I digress.

One lawyer suggested that we should change to a District Court system, and that this would somehow make the process better. I disagree.

That whole discussion misses the larger problem - the volume of cases. The volume is so large that the courts have become the definition of assembly line justice. It really is an assembly line. The police officer prepares the initial papers and files them with the clerk. The clerk gives the papers to the prosecutor who reviews them and discusses the case with the lawyer or the pro-se defendant (though some prosecutors will not discuss a case with a pro-se defendant). The papers then go back to the clerk, who then hands them to the judge. The judge calls the case. There's a brief discussion at the bench. Then the papers go back to the clerk, who then processes the result (fine notice, schedule next date, etc.).

Think about this: If a court has 100 cases on for a particular session (a typical number for courts like Colonie, Guilderland, Albany, etc), and each case takes 15 minutes, that would take 25 hours. That's not going to work. If each case takes only 5 minutes, it still takes 8 hours, so that's still not going to work. Most courts end up at about 1-2 minutes per case. That's assembly line justice.

One of the nice things about the current system is that there are some courts where the docket is not so busy, and you actually have time to have a meaningful discussion about the case, about why the client is really a good person, etc. You get this kind of attention in places like Altamont Village Court, and even in New Scotland Town Court (which is somewhat busier than Altamont). A district court approach (where all of the minor cases in Albany County, for example, would be handled in one court) would be far more impersonal. It would further dehumanize the assembly line.

But the real answer to the problem is to have fewer cases. One comment I heard today was that the problem is how much crime there is. But that's phony. The problem is how much we've defined to be crimes, and how aggressively we enforce certain of these laws. Most countries seem to take a pretty lax attitude about speeding. I remember driving 100 mph in France (in a French car - see I do have guts) with German cars whizzing past us. Speeding tickets are a huge part of the volume in town, village and city courts.

DWI laws have also gotten tougher and tougher. Not too long ago, someone who blew a 0.05 or 0.06 would be let go by the police. Not anymore. And the DWI penalties have gotten so severe that it almost always makes sense to insist on a suppression hearing. More and more lawyers are thinking that way and it's going to gum up the system.

Then there's the drug war, but I've beaten that horse so many times they're going to put me in a special animal violence court.

Saturday, April 14, 2007

Philadelphia Traffic Court - the delicious irony

Great story in Philadelphia. 15 candidates for traffic court judge in the Democratic primary. Of those 15, 8 owe parking fines. Three of the eight actually owe over $1000 in fines. One of the other candidates has his car registered in another county. And four candidates don't even have a car registered in their names.

These are the people who may be ruling on traffic court matters in Philadelphia. Yet another reason for me never to run for judge - I'm apparently overqualified as I don't owe any fines.

Alexa traffic rankings bias?

I keep hearing about Alexa and how Alexa ranks websites. I checked it out today. My three most "successful" websites are ranked by Alexa. This blog is in the 5 million range (i.e. there are a bit over 5 million websites that get more traffic than this blog).

What I found interesting is that my law firm site,, at #1,282,824, outranks our traffic court directory site,, at #1,641,944.

Alexa, which is owned by Amazon, explains its ranking process on a page called About the Alexa Traffic Rankings. This says that the traffic rank is based on three months of aggregated historical traffic data from millions of Alexa Toolbar users.

But had a lot more traffic in the last three months than - roughly 50,000 unique users versus maybe 20,000. Even the previous three months the directory had more visitors than the law firm site.

This tells me there's clearly something wrong with Alexa's ranking system. My first guess is that there's a lot more Alexa toolbars on the west coast than on the east coast. My law firm site gets a lot of visitors looking for things related to California speeding tickets. The directory site doesn't have any courts in California -- but that's coming soon. :-)

Check out the Alexa Global Top 500 if you're interested in that sort of thing.

Update: I noticed another explanation - that Alexa toolbars are used more by people in the search engine optimization industry. That's from a post on Search Engine Journal.

Further update: After reading that post, I checked out Their absolute numbers are off - my sites get a lot more traffic than we're getting credit for, but the trends looks accurate and the comparison between them also is about right.

Tuesday, April 10, 2007

Winning and Losing for the Wrong Reasons

I wrote before about winning and losing. There I was talking about "unwinnable" and "unlosable" cases. Now I'll talk about winning and losing for the wrong reasons.

Most of our work involves cases where we expect the results to be straightforward. Take personal injury cases where the client is a passenger and had a broken bone. In such cases liability is essentially clear in one respect - it's not the passenger's fault. There may be exceptions to this rule (e.g. the passenger is yelling "faster! faster!") but they are so rare I haven't seen it come up yet. And since the client had a broken bone, there's no question about the injury. A case like this will almost always settle. Here our role is to make sure our client gets a fair amount (and try for more than fair - hey, that's our job).

Similarly, in many of our criminal cases, the prosecution has an excellent case and we expect our client will get convicted of something. Often this is through a plea deal, and here our role is to minimize the consequences - less or no jail time, etc.

We all get a few cases where it's not so easy. Either the liability is in question, or the injury is not so clear, or in the criminal cases the police may have made substantial mistakes or even - dare I say it - the client might be innocent. This is where it gets tough.

In these cases most results involve winning or losing for the right reasons. Typically, this means that a jury made a decision on a close case. You had a fair trial, and the result was what it was. In some cases it involves a judge making a decision, for or against you, on a close question of law. We certainly don't like losing in these cases, but we knew it might happen and the process was fair. And of course, we do like winning in these cases.

But then there's the cases where you win or lose for the wrong reasons. Maybe the jury just didn't like one side (I've found juries really don't like obese plaintiffs in personal injury cases, for example), or the judge made a decision from left field on an issue that neither side argued.

You can't complain about winning for the wrong reasons, but it's fundamentally unsatisfying. You didn't win because you did a great job, or because the facts were on your side, but instead you won because of a fluke. Also, you've usually developed some level of camaraderie with the attorney on the other side - in some cases you've been friends for years - and you can't help but empathize with him or her.

Losing for the wrong reasons can be unbearable. You can lose sleep for weeks in a case like that. As I've gained more experience, this has been less of a burden. Sadly, it's just become part of the game of being a trial lawyer. For us, we have our next case to face, in a seemingly endless line of cases. We'll win some and lose some, both for the right reasons and for the wrong reasons. Over time they'll balance out for us.

One particularly difficult aspect of this is explaining the loss to the client. While for us this is one of many cases, usually for clients this is their only case. How do you explain that the system is - deep down - fundamentally unfair? I don't mean that it's unfair to one particular group or another, though that is true in some circumstances (like the obese plaintiffs). I just mean that there's an inherent arbitrariness. Juries aren't perfect, and neither are judges. Sometimes you get the feeling that something personal is going on. I've had clients and others tell me they think a judge was paid off (most often in cases where I was not involved at all). I've seen verified reports of that in New York City, but even there it's rare and somehow I just think that doesn't happen here.

I've been very fortunate in the few cases I've lost like this, in that my clients seem to believe in me even more after such a loss. In their eyes I fought for them against an unfair system. Maybe they never believed it was fair in the first place. For some reason I just can't let go of the idea that it should be.

Friday, April 06, 2007

I've been rated ... and they actually said nice things

I got a letter the other day saying that I "have been awarded a CV Peer Review Rating by LexisNexis Martindale-Hubbell, which deals with both ethical standards and legal ability. No, I'm not making this up. You can see for yourself on the Martindale Hubbell page on Warren Redlich.

A CV rating "identifies a lawyer with good to high legal ability [and] is a positive indication of ... professional expertise." This was the "result of an extensive ... peer review by members of your Bar."

At first I thought they were referring to my favorite bar, Mahar's. But then I realized they meant other lawyers in the Albany area. I am quite flattered that others spoke well of me. Now of course I'm looking at the fact that there are higher ratings -- BV and AV. The letter is kind of congratulations for getting a grade of a C. Somehow that's a good thing.

Of course I'm also rationalizing why I didn't get a higher rating. Hmm ... maybe you have to get the CV rating first before they'll elevate you to a higher one. Yeah, that's the ticket!

Actually, I looked around the listings for Albany and the AV-rated lawyers I saw are people who've been around a long time and are well-known for their excellence. I was surprised to see that Joe McCoy and Scott Bush (Roche Corrigan McCoy and Bush) are only BV rated. Both are truly outstanding lawyers. I've been dealing with Scott for about 10 years now and he was well-recognized when I first met him. Joe is also widely respected in the Albany criminal defense bar, and has been for years. A friend of mine is, like me, rated CV. He is one of the best DWI lawyers in New York State, and he's been doing it longer than I have. So maybe a CV rating isn't so bad.