NYLJ 6/20/07
2. LAW FIRMS, INSURER SANCTIONED
2. Makes you wonder about some interpretations of the term ‘fiduciary duties’ owed by counsel to client. By now it is understood that delaying tactics are part and parcel of the patient ploys in attorney/client relations, taking longer to get to trial being merely a card in the hand of the players at the poker table. In that, the counterclaims (“I raise”) and motions to preclude or set aside or dispute of jurisdiction or of proper service (“I see you and raise”) before they enter the courthouse (“I call”) are all what can turn the felt forum into a bargaining table.
Still, destroying evidence, pretending you didn’t know it existed or stating that the files of the chief underwriter in an insurance case were not considered relevant—that’s just opening the door for malfeasance. And for what? The bet might payoff? Sure, that’s what you ante up for in the first place. It’s not like the insurer can’t afford to make good on their policy, though, is it?
So then, it comes down to the old formula: which came first, the chicken or the egg? The insurance company was clearly laying the eggs by deleting the electronic files, as well as scrambling them by claiming no knowledge of them, when the e-mail trail is as easy to follow as paper. So, a “culpable state of mind” can exist, even it is a Swiss-based conglo-giant. And the other? “Counsel’s failure to recognize the importance of this document and produce it in a timely fashion, especially when alerted to it by opposing counsel, also constitutes a violation of discovery obligations.”
What defense then is “inadvertence”? “Not apt,” said the judge. “And a finding of negligence or worse would be a more appropriate characterization.”
Which seems to call their bluff, alright!
Showing posts with label Negligence. Show all posts
Showing posts with label Negligence. Show all posts
Wednesday, March 24, 2010
Friday, February 5, 2010
SIDEBAR: JUDGES TO PARSE "INTOXICATION" AND "ESCAPE"
NYLJ 5-22-07
[This is probably the beginning of an ongoing series called Sidebar. The idea is that there are these moments when, in a trial, or in discussion among justices, the court stops, everybody steps out of their roles and everything is thrown into a heightened relief.
At any rate, this is also is going to inaugurate a new label for blueback. Just for a bit of background, several years ago, the Modern Language Association of America did a study that went on for a while as they wanted to find out a bit how we talk, which also implies how we think. Let's not cite chapter and verse and just cut to the chase, for once. It is estimated that in post-industrial, First World States, there are roughly 10,000 words in the general lexicon--outside of specialized vocabulary as in professional jargon or hobbies or past-times (different classes)--available to anyone to use. Of that set, the average person uses, in the course of their entire life, something in the neighborhood of 1,000 words, in regular rotation. In their daily lives, in the course of one sidereal rotation: 100.
That is all said to say this: most people don't care. At all. Period. Language is either for making money, gossip or comedy. The rest is action. For the purposes of this blog, however, it is of paramount concern. And when you stumble across a day like this one, in the Journal, you need to give it your full attention.]
So the word for today is PARSING or TO PARSE! What most of us would think as a job for Webster’s, the New Collegiate or Funk & Wagnalls—and at the extreme, the O.E.D.—becomes something quite different when the Court of Appeals is asked to rule on definitions. It is Clinton’s famous excuse “What is the meaning of the word ‘is’?” that comes to mind when the oral argument calendar brings up the importance of statutory clarity.
Regard the situation of a loon who inhales “Dust-Off” spray from an aerosol can while operating a motor vehicle. While this might be excusable if he were trying to clear his dash board of lint, the fact that he was actively seeking the affect the hydrocarbon propellant would have as a depressive on his central nervous system, has to mean he was looking for a “down”. As any seasoned huffer will tell you, he had to get a nod, and while driving at full speed on the highway, resulting in his straying over the divider and smacking head-on into oncoming traffic. Vehicular homicide would be the coroner’s assessment, but “Depraved Indifference” in Felony, or “Negligence” in Liability? Depends on where you draw the bright line. For the former, in the 2nd Degree, you need proof that the defendant has violated Vehicle & Traffic Laws Section 1192(3) that “no person shall operate a vehicle while in an intoxicated condition.” And that is where the tragedy of instant death accelerates past comedy and leaps the guard rail to do another header into absurdity.
An acting Supreme Court Justice shouldn’t conclude that, within that particular statutory scheme, intoxicated should only be limited to the consumption of alcohol, should it? Well, surely the Appellate Division should not concur, right? I mean, they are all working with the same basic tools: a/k/a the English Language. Not if you take the anti-drunk driving statutes back to 1910 and add in the 1941 blood-alcohol content evidence inclusion—of course they should. And did.
So you might be led to think that it would be covered under another section of the VTL? Perhaps one on drugs? That would be 1142(4). And you would be wrong, again. It seems the writers of this section never anticipated anyone using that particular substance to get their rocks off. But they were wrong too.
However, the only miscarriage of justice would be that one charge didn’t make the cut. There are still criminally negligent homicide and second-degree manslaughter to content with—and these can’t be argued away over a question of semantics.
As for some antics...of another sort... Is it the Great Escape…or the Great Attempted Escape? It depends on how far away you get from an officer’s custody, and what appears to be your motive.
The motive is important as the distance. The mens rea here might be, 'I wasn't trying to escape, it was just exercise... I thought the guard didn't mind, he wasn't paying attention.' Or it might be, 'I forgot where I was!' Or 'If I was trying to get along, then why wasn't I farther along?' And until you can get that nailed, you are not going to be able to assign any penalty based upon intent.
So ya gotta go with what you know.
One might be a chronic repeater or a first-timer with opportunities, but it all starts with drastic measures. You're being walked from your secure ward down to the solarium and back and somewhere along the line...you're not. If your first flight was 30 feet, before being grabbed, and your second only 12, and both are within the hospital facility, then you must ponder “physical contact” as much as “out of sight”. Which might also lend itself to the remainder of that saw, “out of mind”, if you were in deliberations over this one, and to wonder perforce: what was his escort thinking while his charge made his way away?
[This is probably the beginning of an ongoing series called Sidebar. The idea is that there are these moments when, in a trial, or in discussion among justices, the court stops, everybody steps out of their roles and everything is thrown into a heightened relief.
At any rate, this is also is going to inaugurate a new label for blueback. Just for a bit of background, several years ago, the Modern Language Association of America did a study that went on for a while as they wanted to find out a bit how we talk, which also implies how we think. Let's not cite chapter and verse and just cut to the chase, for once. It is estimated that in post-industrial, First World States, there are roughly 10,000 words in the general lexicon--outside of specialized vocabulary as in professional jargon or hobbies or past-times (different classes)--available to anyone to use. Of that set, the average person uses, in the course of their entire life, something in the neighborhood of 1,000 words, in regular rotation. In their daily lives, in the course of one sidereal rotation: 100.
That is all said to say this: most people don't care. At all. Period. Language is either for making money, gossip or comedy. The rest is action. For the purposes of this blog, however, it is of paramount concern. And when you stumble across a day like this one, in the Journal, you need to give it your full attention.]
So the word for today is PARSING or TO PARSE! What most of us would think as a job for Webster’s, the New Collegiate or Funk & Wagnalls—and at the extreme, the O.E.D.—becomes something quite different when the Court of Appeals is asked to rule on definitions. It is Clinton’s famous excuse “What is the meaning of the word ‘is’?” that comes to mind when the oral argument calendar brings up the importance of statutory clarity.
Regard the situation of a loon who inhales “Dust-Off” spray from an aerosol can while operating a motor vehicle. While this might be excusable if he were trying to clear his dash board of lint, the fact that he was actively seeking the affect the hydrocarbon propellant would have as a depressive on his central nervous system, has to mean he was looking for a “down”. As any seasoned huffer will tell you, he had to get a nod, and while driving at full speed on the highway, resulting in his straying over the divider and smacking head-on into oncoming traffic. Vehicular homicide would be the coroner’s assessment, but “Depraved Indifference” in Felony, or “Negligence” in Liability? Depends on where you draw the bright line. For the former, in the 2nd Degree, you need proof that the defendant has violated Vehicle & Traffic Laws Section 1192(3) that “no person shall operate a vehicle while in an intoxicated condition.” And that is where the tragedy of instant death accelerates past comedy and leaps the guard rail to do another header into absurdity.
An acting Supreme Court Justice shouldn’t conclude that, within that particular statutory scheme, intoxicated should only be limited to the consumption of alcohol, should it? Well, surely the Appellate Division should not concur, right? I mean, they are all working with the same basic tools: a/k/a the English Language. Not if you take the anti-drunk driving statutes back to 1910 and add in the 1941 blood-alcohol content evidence inclusion—of course they should. And did.
So you might be led to think that it would be covered under another section of the VTL? Perhaps one on drugs? That would be 1142(4). And you would be wrong, again. It seems the writers of this section never anticipated anyone using that particular substance to get their rocks off. But they were wrong too.
However, the only miscarriage of justice would be that one charge didn’t make the cut. There are still criminally negligent homicide and second-degree manslaughter to content with—and these can’t be argued away over a question of semantics.
As for some antics...of another sort... Is it the Great Escape…or the Great Attempted Escape? It depends on how far away you get from an officer’s custody, and what appears to be your motive.
The motive is important as the distance. The mens rea here might be, 'I wasn't trying to escape, it was just exercise... I thought the guard didn't mind, he wasn't paying attention.' Or it might be, 'I forgot where I was!' Or 'If I was trying to get along, then why wasn't I farther along?' And until you can get that nailed, you are not going to be able to assign any penalty based upon intent.
So ya gotta go with what you know.
One might be a chronic repeater or a first-timer with opportunities, but it all starts with drastic measures. You're being walked from your secure ward down to the solarium and back and somewhere along the line...you're not. If your first flight was 30 feet, before being grabbed, and your second only 12, and both are within the hospital facility, then you must ponder “physical contact” as much as “out of sight”. Which might also lend itself to the remainder of that saw, “out of mind”, if you were in deliberations over this one, and to wonder perforce: what was his escort thinking while his charge made his way away?
Wednesday, February 3, 2010
KNOWLEDGE QUESTION KILLS HURT TAVERN PATRON’S SUIT
NYLJ 5/21/07
2. KNOWLEDGE QUESTION KILLS HURT TAVERN PATRON’S SUIT
[Off the top, was their headline writer channelling a New York Post scribe that day? It is almost surreal: the story of a hurt tavern patron's suit--possibly a double-breasted, maybe two-button, who can tell?--that is killed (mind you: it was already hurt, talk about adding insult to injury?) by a knowledge question? Can you see it hurtling out of the dark? Sharp and pointed, something between a flying swordfish and a corkscrew, writhing like an exclamation point with intestinal cramps, insane with pain, entering through the lapel, then augering, twisting deep into the fabric, batting, coming up through the shoulder pads and then, in one final thrust, delivering the death blow to the back like a seam ripper?]
2. In the dark, all pools of vomit look like floor tiles, like in the same abstract pattern as kitchen linoleum, but maybe with a bit more sparkle. On the other hand, if you’ve been in a bar for several hours and can lay claim to the fact that you had no alcohol to impair your judgment—including sight—the question arises as to how you could miss a splat like that, even above the other odors of the Ladies Room? And so it must be, with all deference, asked:
“How did you manage that?”—would be the leading one, leaning towards a sneer, delivered with the broad gesture which could be easily understood at the back of a mezzanine, in a manner of speech projected with equal measures of credulity and honest curiosity.
Her protestations would be no less award-worthy. "Yeah, well, It's really dark in there, you know?"
"And you never went in there before that night?"
"A'course I did! Does it look like I got a hollow leg?"
And he wonders, for a moment only, if "Jersey Shore" is a mindset or type casting or just bad casting. "So you have no idea how long the ejecta was there? It could have been an hour, or it could have been one minute."
"If I knew it was there, would I've stepped in it?"
"No, you wouldn't want to break you leg and be forced to sue for damages."
"Ya think?!"
For it is all an act; never forget that.
The corrections officer, moonlighting as a bouncer, could have been the type to have been written off as a liar on a CYA mission. However, when regular joe goes against a bar patron, out with her gal pal to maybe get lucky (who knows?), he comes off more credible than the tea-totaling twosome. The plaintiff’s attorney would call it “impugning the testimony”, but the jury wouldn’t. They can—and do—split hairs worse than cheap shampoo. There can be fault found in an unsafe condition existent extant, but, while the management may be liable, his testimony sure isn't negligent.
“Is it your standard and practice to check the restroom condition on a regular basis?”
“Every half hour. Otherwise, nice people wouldn’t patronize me.”
“And the function of the guard outside is not only to maintain the peace but lavatory facilities as well.”
“Well, that’s the Ladies Room. If I can’t get someone to report something, I can’t very well have my guy just walk in, now can I?”
"And you don't have bar maids?"
"They're the reasons I have male customers."
"And you can't have them check on the conditions in the rest rooms?"
"Can and do. But not every ten minutes."
"And why is that?"
"They're the reasons I have happy male customers."
(Bada-bing)
2. KNOWLEDGE QUESTION KILLS HURT TAVERN PATRON’S SUIT
[Off the top, was their headline writer channelling a New York Post scribe that day? It is almost surreal: the story of a hurt tavern patron's suit--possibly a double-breasted, maybe two-button, who can tell?--that is killed (mind you: it was already hurt, talk about adding insult to injury?) by a knowledge question? Can you see it hurtling out of the dark? Sharp and pointed, something between a flying swordfish and a corkscrew, writhing like an exclamation point with intestinal cramps, insane with pain, entering through the lapel, then augering, twisting deep into the fabric, batting, coming up through the shoulder pads and then, in one final thrust, delivering the death blow to the back like a seam ripper?]
2. In the dark, all pools of vomit look like floor tiles, like in the same abstract pattern as kitchen linoleum, but maybe with a bit more sparkle. On the other hand, if you’ve been in a bar for several hours and can lay claim to the fact that you had no alcohol to impair your judgment—including sight—the question arises as to how you could miss a splat like that, even above the other odors of the Ladies Room? And so it must be, with all deference, asked:
“How did you manage that?”—would be the leading one, leaning towards a sneer, delivered with the broad gesture which could be easily understood at the back of a mezzanine, in a manner of speech projected with equal measures of credulity and honest curiosity.
Her protestations would be no less award-worthy. "Yeah, well, It's really dark in there, you know?"
"And you never went in there before that night?"
"A'course I did! Does it look like I got a hollow leg?"
And he wonders, for a moment only, if "Jersey Shore" is a mindset or type casting or just bad casting. "So you have no idea how long the ejecta was there? It could have been an hour, or it could have been one minute."
"If I knew it was there, would I've stepped in it?"
"No, you wouldn't want to break you leg and be forced to sue for damages."
"Ya think?!"
For it is all an act; never forget that.
The corrections officer, moonlighting as a bouncer, could have been the type to have been written off as a liar on a CYA mission. However, when regular joe goes against a bar patron, out with her gal pal to maybe get lucky (who knows?), he comes off more credible than the tea-totaling twosome. The plaintiff’s attorney would call it “impugning the testimony”, but the jury wouldn’t. They can—and do—split hairs worse than cheap shampoo. There can be fault found in an unsafe condition existent extant, but, while the management may be liable, his testimony sure isn't negligent.
“Is it your standard and practice to check the restroom condition on a regular basis?”
“Every half hour. Otherwise, nice people wouldn’t patronize me.”
“And the function of the guard outside is not only to maintain the peace but lavatory facilities as well.”
“Well, that’s the Ladies Room. If I can’t get someone to report something, I can’t very well have my guy just walk in, now can I?”
"And you don't have bar maids?"
"They're the reasons I have male customers."
"And you can't have them check on the conditions in the rest rooms?"
"Can and do. But not every ten minutes."
"And why is that?"
"They're the reasons I have happy male customers."
(Bada-bing)
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