The Dog Ate My Homework

There is a case in Western New York's Federal District Court entitled "Ca-POW v. Town of Greece".  Attorney David J. Seeger was told by Federal District Court Judge Charles J. Siragusa to file papers by May 11, 2010.  He didn't do it.  On four previous times, Judge Siragusa had pointed out to Mr. Seeger that he violated local procedural rules.  The fifth time was too much and Mr. Seeger got socked by the Judge with a $14,000 sanction.  Why?  Mr. Seeger had 29 years of experience as an attorney.  Judge Siragusa said:  "The Court found that [Seeger]'s contention that he was unsure what to do, or that he was 'toying with the decision' to seek leave to amend, or that his father's death 11 years ago, affected his ability to file a memorandum of law in this case, did not contain the ring of truth."

He that is good for making excuses is seldom good for anything else. Benjamin Franklin

Lawyers hear excuses all the time, particularly if the lawyer is representing someone charged with criminal behavior.  I can count on the fingers of one hand the times throughout my 29 years of practice that a criminal defendant came up to me and said, "Yup, I hit him because he ticked me off."  Note, that is an explanation -- not an excuse.  The excuse in that situation would be, "I don't remember hitting him.  I blacked out.  But if I did hit him, it is only because my mom and dad used to hit me and it caused emotional turmoil to the terrific extent that I blacked out."  That is an excuse.

Legal Advertising

Recently, we received a letter from "PMP Marketing Group".  They wanted us to fly down to Orlando, Florida to participate in a seminar "...to learn strategies of how John Morgan of Morgan and Morgan built his multimillion dollar law firm."  We are not going...

Along with the letter was a "Competitive Spending Report" for the Burlington area.  The report detailed just how much lawyers were spending in the Burlington, Vermont area, (I presume that includes Plattsburgh and Northern New York.)

On the top of the list was the Goldwater Law Firm which spent its gold like water to the tune of $432,000 in 2011 followed by Martin Harding and Mazzotti to the tune of $178,000. 

Our firm occassionally advertises on television, but not lately.  We have always been conflicted about advertising.  We do not want to come off as ambulance chasers or carnival barkers, because well..., because we are not that way.  We also worry that lawyer advertising can turn people off.  To each their own.

However, I have, I think, come upon the worst ever television commercial for an attorney.  I simply could not take on a client who would respond to this attorney's advertisement.  Moreover, it would be insane to hire such an attorney.

Eric Turkewitz, an excellent attorney who practices personal injury law put it best when he commented on the commercial shown below:  He said that this lawyer, ..."is an embarrassment to the profession, and lawyers should howl in protest when we see it. It feeds into all of the worst beliefs that many have of lawyers and our justice system (much of it fostered by big business looking to cut back on consumer rights) and helps to perpetuate it.
And that helps to create an overly cynical population, and an overly cynical jury pool, such that even those with the most meritorious of cases are left fighting uphill battles before an opening statement ever takes place. The legal playing field should be a level one, and lawyers should not be helping to create negative perceptions that will hurt those who turn to the courts seeking their ounce of justice. A pox on each of their houses for helping to create such negative perceptions which run directly contrary to the way most attorneys conduct themselves."

When watching the commercial below, ask yourself what type of individual would be moved enough by this commercial to call the lawyer... 

Marriage Preparation

For more years than I care to admit, my wife, Kathleen, and I have helped out two to three times per year in presenting a "Pre-Cana" program for our locality.  We work with a wonderful group of people, including Father Joe, our parish pastor, (Malone Catholic Parishes), Suzanne and Angelo, Nick and Mary, Bryan and Monique, and Scott.  The Cana in Pre-Cana refers to the wedding to which Jesus was invited with his mother where he performed, what one student referred to as a "great parlour trick" of turning the water into wine and the request of his mother, Mary.  The Catholic Church, like most faith communities requires, (strongly suggests?), some sort of marriage preparation before tying the knot. 

Our pre-Cana is always busy.  This past Saturday we had 36 people going through the process.  My talk is challenging -- Finances.  But, every segment is challenging:  Sacramental Marriage, i.e., essentially, what is marriage; Communication; Sexuality; and Finances.  We get busy because the alternative is very daunting -- if you do not go to our Pre-Cana (one day--7hours long--with lunch!) you may be "married up" with a local couple who will mentor you (individual attention for the couple) over a series of weeks at their house or your house, or somewhere.  Well, if you're a young couple, that doesn't sound too appealing, because, after all, you already have an older couple telling you what you should do, (they are called parents), so why not get it done in a day!

There is, of course, the well-known admonishment to young couples:  Fifty-per cent of all marriages end in divorce.  But, Many Americans stay married and have long marriages. The median duration of American women’s first marriages in 2009 was 20.8 years? Even when American women remarry, the median duration of their second marriages in 2009 was 14.5 years.  So, there is a lot of hope.

If you met the young people, (and some middle-aged people), who were participating in the class you would have a lot of hope.   Over the twenty years or so that I have participated in this program, I have increasingly become more hopeful.   The biggest reason that I am more hopeful of weddings now than in the past is that women are, for the most part, more confident when they come into a marriage.  They are not as willing to put up with substance abuse or violence.  And, they are waiting longer before they get married, some delaying until their education is completed.  The other side of the coin is that men are becoming more aware of substance abuse and violence.  Moreover, men and women alike are looking at the stress and heartbreak that their own parents' divorce caused them as children and wish to avoid the same anguish in their own marriage.

Medical Errors

The American Association of Retired Persons in the March edition of its AARP Bulletin has an important article entitled, "The Worst Place to Be If You're Sick", by Katherine Greider.  Ms. Greider points out:

"The number of patients who die each year from preventable hospital errors is equal to four full jumbo jets crashing each week.  If airline tragedies of that magnitude were occurring with such frequency, no one would tolerate the loss."

The Road To Politics

Recently, we sued the Town of Malone. There was a rotted and terribly dangerous tree hanging over the roadway in the Town of Malone's right-of way.  A gust of wind blew causing a limb of a tree to smash onto the car driven by our client.  It hurt her badly. 

Looking at the tree, it was clearly rotted and ready to fall.  In New York, each municipality has a non-delegable duty to have an inspection plan, (a plan that should be followed up on, too...), consisting of, well...inspecting the roadways to see if there are any dangerous trees nearby that could crash on cars or pedestrians.

Part of preparing any case for trial in such a case involves questioning the employees of the municipality, (here, the Town of Malone), of what they saw about the trees, or what they knew about the inspection program, if any.  Invariably -- AND I MEAN INVARIABLY -- a current employee never has seen a dangerous condition exist and any inspection procedure was the responsibility of someone else.  Naturally, the reason for such "know-nothing" testimony is that the employee does not want to lose their job, or "get in trouble".  Thus, integrity is abandoned and the paycheck is secure.  Of course, this culture of "I didn't see anything", or "that is not my job" is based upon dysfunctional political systems, and dysfunctional departments.  In Malone, the Highway Superindendant is elected.  The employees serve at the pleasure of the Town Board.

I was fortunate enough, however, in my particular case to have the unique situation of being able to take the testimony of the Highway Superindendant who was at the helm when my client was injured but who had since retired.  He was safely collecting retirement, he was not in danger of losing his election or being criticized by the Town Board, and, I guess, he could now be truthful.  Here's a sample:

"Question [Joe Nichols]:  Sir, did you periodically drive ---when you were a highway superintendent, did you periodically drive the town roads to check on their condition?

Answer [Highway Superindendent]:  Why--they used to have a road inspection every spring with the supervisor and councilmen and that sort of stuff.  And they used to go down and ride around the roads, and all they done was talk about politics while they were there, so that didn't do no good.  So, after that was done, they all went back to the garge and went home.  So, as far as that inspection, that was the only final inspection.  And we haven't had that in -- I don't know how many years now -- four or five years maybe.  We--they just done away with it."

Because of the "I see nothing" mentality in this case, our client suffered fractures to her spine.  And this particular tree at issue should have been trimmed, because it was a dead tree.  Moreover, the town had the right and the duty to trim it.  But this is what happened:

Testimony of Highway Superintendent:  "I told him, [the owner of the field adjacent to the right of way with the dead trees] that the trees look like they should all be taken out, and what I offered to do was take them all out and take the stumps and all out.
Question [Joe Nichols]: What did he say to you after you offered that?
Answer:  He said, "No, them are shade for my cows."
Question:  Now after that conversation with [the owner of the field] did you ever talk to the town attorney about what your rights or your obligations were as town highway superintendent in the removal of those trees?
Answer: No.
Question:  Why?
Answer:  Just never did, just let it go, I guess...What's the sense of getting into an argument with somebody, might as well forget about it.
Question:  All right.  So, one of the reasons you didn't want to do it was you didn't want to get into an argument?
Answer:  That is correct.  What's the sense in getting into it?
Question:  Did there come a time that you learned that [the injured person] had been involved in an incident where one of those trees along the Junction Road fell onto her car?
Answer:  I didn't know who it was that the tree fell on the car...Yeah, I heard it afterwards."

Malpractice Verdict

Medical Malpractice verdicts in favor of plaintiffs are far and few between in the Upstate Counties of New York.  There is a lot of discussion about why malpractice verdicts are the way they are, some valid and some not valid.  The biggest roadblock to the peaceful settlement of claims is, in my less-than-humble opinion, professional egotism.  Doctors, Lawyers, Accountants, Teachers, have a very difficult time in being told that they have done something in a "careless" way.  Professionals, so called, are the worst in our society, at admitting that they screwed up.  In many ways we professionals are like badly brought up children.  We try to point the finger or tell people why we have not done wrong or that the wrong was really a right.  Doctors are especially challenging in this mode.  Lawyers, at least, have judges and other lawyers correcting them, arguing with them, putting them down, etc.  Teachers have students ready to cut them down to size every minute of every day.  Accountants, no matter what, have the cold hard facts of numbers. 

But doctors, (here I sigh...).  They have no one who holds them into account.  Ask most nurses and they will tell you that many (NOT ALL), doctors have a self-important arrogance bred of thier self-perception of constantly saving lives and of having little, if any, checks on their ego -- no wise-ass student, no judge telling you why your argument sucks, no numbers thrown in your face where you transposed a number by mistake. 

Most malpractice clients who come to our offices come because the doctor was arrogant, rude and/or dismissive of their problems. 

Here is one where the good guy won, and its from the Plattsburgh Press Republican.  Yes, my partner Tom Grue and I are absolutely estatic for our client, George.  He's a great guy.  This is from the Plattsburgh Press Republican.

"February 14, 2012

Brushton man gets almost $1 million after surgery lawsuit

JEFF MEYERS Press-Republican The Press Republican Tue Feb 14, 2012, 05:58 PM EST

MALONE — A Brushton resident has received nearly $1 million for injuries he suffered during a prostatectomy performed in January 2007.

George Guyette, 74, was awarded $919,276.67 following a week-long trial against Plattsburgh urologist Dr. Leo Grafstein and his practice, Urology Associates of Northeastern New York.

Grafstein plans to appeal the decision.

“I am very glad for George,” said Guyette’s attorney, Joseph Nichols of Poissant, Nichols, Grue and Vanier law firm in Malone. “This is a nice outcome for a fine man, who has had to go through so much (since the procedure).”



INJURY CHECK

The case focused on Grafstein’s failure to check for a possible rectal injury following the prostatectomy to remove a portion of the prostate gland.

“The doctor should always check (for any damage to the rectum) before closing the patient up,” Nichols said. “We believed it was very apparent in this situation that the doctor did not check to see what had happened.”

Testimony during the trial confirmed that Grafstein had “performed the procedure carefully and properly but had failed to check at the end of the surgery for the possibility of a rectal injury,” Nichols’s firm stated in a press release.

According to court records, Grafstein and a defense expert from Albany testified that such a procedure was not required.

But all of the medical witnesses called to testify agreed that the consequences of not identifying a rectal injury following the procedure would result in a prolonged course of treatment, including a colostomy as an alternative channel for feces to leave the body.



INFECTION

“Mr. Guyette’s bowel contents leaked into his abdomen (following the procedure) and created a terrible infection,” Nichols said. “Since then, he has had to undergo lots of surgeries, including a colostomy. These are things that he continues to go through.”

Contacted by the Press-Republican, Grafstein refused to comment on the case.

His attorney, Peter Scolamiero, who is based in Albany, said his firm could not comment but did note that an appeal is planned.



‘IMPORTANT’

Nichols praised the jury of five men and one woman for its patience in following the information it received over the course of the trial.

“The decision is important for many members of our community,” he said. “Prostate cancer is the fourth most common cancer that a man is likely to face in his lifetime.

“The jury’s findings validate the community’s expression that it desires to have doctors take a few minutes to do a surgery carefully and to avoid complications that sometimes can occur.”

Guyette will be required to repay $137,100.28 from the judgment for Medicare payments incurred over the past several years.

The judgment will be paid by the urology’s medical malpractice insurance carrier, Medical Liability Mutual Insurance Co."