The Kiley Law Firm Blog

Personal injury plaintiffs are routinely derided by the general public as phonies. Certainly, there are unscrupulous plaintiffs and lawyers who bring smear-job lawsuits. But too few people are cognizant of the dark side of the defendant’s defense.

If you bring a lawsuit for personal injuries, §3121 of the Civil Practice Laws and Rules of the State of New York (CPLR), permits the defendant’s insurance company to hire its own doctors to physically examine you. The purpose is obvious. Defendants have the right to verify whether a plaintiff is actually injured and the extent to which the injuries are permanent and/or disabling. Defendants euphemistically refer to these tests as “Independent Medical Examinations” or “IME’s” because the CPLR gives them the right to evaluate the plaintiff separately from what the plaintiff and his doctors may claim. To describe the defendant’s physical examination as “independent” lends an aura of righteousness to the endeavor as though only the defendant’s doctor may uphold his sacred Hippocratic oath to practice his profession ethically and without outside influences. Nothing could be farther from the truth. The doctors who conduct the examinations are paid by the defendants’ insurance companies. They serve at the whim of the insurance company. In so doing, many take a “hypocritical” oath. The doctor who too often determines that a plaintiff is seriously or permanently injured finds himself out of favor with his patron and unemployed. But certainly not all.

More often than not, the defendant’s doctor renders his services at a bulk rate. He may be paid only $100.00 per examination. How does he do it? Volume. He overbooks his appointments and examines plaintiffs in assembly-line fashion. He doesn’t dictate a full report but uses fill-in-the-blank templates forms to save time. Rare is the occasion when the physician spends more than five minutes examining the plaintiff. Rarer still is the occasion when the physician determines that the plaintiff is truly injured as a result of the defendant’s negligence.

Generally, there are five different methods by which the defendant’s doctor plies his tawdry trade to refute a plaintiff’s claim of injury:

(1) IT’S ALL IN YOUR HEAD: By this approach the doctor pejoratively references the plaintiff’s symptoms as “subjective.” If the plaintiff says that he has pain and can’t move his arm, the doctor claims that he has objectively measured the plaintiff’s range of motion and finds that he is not so restricted or that his range of motion is “within normal limits.” But what is normal? A thirty-year-old athlete can swing his arm in a wider circle than a fifty-year-old fat man who won’t get off the couch unless he needs to reach the cooler. Most times the examiner makes no distinction. God help the couch potato.

(2) NOT MY FAULT: Another twisted method is to claim that the plaintiff’s problems are “pre-existing” or the result of “degeneration.” True, few people more than forty can avoid the aging process. But how may the IME doctor explain that the plaintiff was asymptomatic until his Volkswagon Beetle was struck from behind by a teenager in his father’s Range Rover? Too frequently they ignore such facts or do not let themselves be fooled by the truth.

(3) THIS TOO WILL PASS: Sometimes IME doctors are faced by the physical evidence that the plaintiff is irrefutably and uncontestedly injured. How then may he serve his master? In such a case, the doctor must resort to a fallback position – “the plaintiff’s injuries are temporary.” Sure, little Joey still limps four years after breaking his ankle. Shortly he will fully recover.

(4) HALLELUJAH! JESUS SAVES: Another artifice in the IME arsenal is the technique wherein the defendant’s doctor proclaims the plaintiff remarkable recovery. Like a Pentecostal Preacher, he asserts that the plaintiff may throw away his crutches and walk.

(5) THE RORSCHACH APPROACH: Perhaps most sinister are the physicians who do not physically examine a plaintiff, but “review” the radiological records instead. The doctors who prepare such reports are uniquely positioned to practice medicine without a patient. Behind the cloak of a shadowbox they offer their not-so-professional opinions. Ask one man to look at an inkblot and he sees a monkey with an accordion. The next man sees a ballerina smoking a cigar. So if the plaintiff’s radiologist says that an MRI film shows a herniated cervical disc, the defendant’s doctor may say that the findings are evidence of degenerative osteophyte formations. Put the film in front of the jurors and call it what you want. The average person can’t tell. As Harry Truman said, “if you can’t convince them, confuse them.”

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The sport of golf is enjoying unprecedented popularity these days.   Long Island is home to literally hundreds of private and public golf courses,  many offering some of the finest golf courses in the Country.    New private and quasi-private golf clubs continue to be built, particularly in Suffolk County.  In addition, despite the sluggish economy, the number of corporate and charity golf outings seems to be growing exponentially.  The combination of these factors has led to an increasing menace which threatens public health……… the “hack” golfer.

So what happens if you are injured on (or off)  the golf course as a result of a stray ball or other condition?  Do you have any remedies?  Unfortunately, with slim exceptions, the answer is usually, “No”.

With many sport related injuries, the courts often apply the doctrine of “Primary Assumption of Risk”  which holds that individuals who engage in a sport or recreational activity consent to assume the commonly appreciated risks that are inherent in and arise out of the nature of the sport.   Thus, the golfer should be keenly aware of the commonly appreciated risks associated with golf, of which the courts have found many, inluding the following:  1) being struck by an errant golf ball even when a fellow golfer fails to warn of his intent to strike  the ball. See Anad v. Kapoor, 15 N.Y. 3d 946;  2) slipping and falling while descending a staircase leading from cart path to tee box. See Mangan v. Engineer’s Country Club, 79 AD 3d 706; 3) slipping on wet grass. See Lombardo v. Cedar Brook Golf & Tennis Club, 39 AD 2d 818; and falling in mud.  See Carracino v. Town of Oyster Bay, 247 AD2d 501… all situations where the courts dismissed the injured parties claims.    

And for the golf “hackers” out there,  take solace (along with the author) in knowing that the New York State Court of Appeals has determined that generally, a golfer may not be held liable to the individuals located entirely outside the boundaries of the golf course, who happen to be hit by a stray ball.  See Rinaldo v. McGovern 78 NYS 2nd 729, where the court dismissed the claims of the plaintiff who was struck by an errat ball while driving his motor vehicle  on a public road abutting the golf course.  

So keep taking that driver out of the bag… and keep a good eye on your fellow golfer.

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Tomorrow my wife Maria and I will bring our daughter, Ally, (and loads of our money) to Harvard where she will begin her freshman year. She has been packing for two weeks and I will need to rent a small semi to get all her things to Boston. I remember my parents sent me to Colgate with a trunk full of jeans and flannel shirts, some toiletries, and a winter coat (which I started wearing in October, I might add).

I’m sure that some of the differences between what I brought to Colgate and what Ally will bring to Harvard are gender-based. But the technical toys and modern conveniences that she has at her disposal are so far removed from my college experience to make me think I went to school during the dark ages. For instance:

• Ally has a 3G Droid cell phone on which she can surf the internet; I had quarters and waited in line to use the hall phone at Center Stillman Hall;
• She will have sushi and sashimi at a posh student “eatery”; I ate slop at the SAGA mess hall if I was hungry enough to brave the alpine trek from the Freshman Quadrangle to the bottom of Cardiac Hill and back up again.
• She has an Apple computer and word-processing software to prepare “documents”; I knew a coed in West Stillman who would type my term paper for money IF I gave her enough lead time. Oh. And I also had all the apples I wanted if I was desperate enough to brave the ice and wind down the mountain and back up again;
• She has an I-Pod so small she can carry it in her hip pocket; I had a turntable that traveled no farther than the longest extension cord.
• She will have wi-fi, hi-def and cable television with over 200 channels; my dorm had a rabbit ear-ed black and white TV that played three Syracuse stations.

Then again, my parents paid $5,500/year in tuition, etc.; Maria and I will pay $55,000.00. Why is it that I feel I have been shortchanged twice?

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It’s one of the lessons they don’t teach in law school or in any of the scholarly tomes on legal jurisprudence. Until you learn it, you are doomed to fail: there are three parties to every lawsuit: the plaintiff, the defendant and the judge. And the man* in the black dress trumps the other two every time.

Underneath the dress, judges are real people. Like all, they have strengths and weaknesses. But there are two prototypes – the “good judge” and the “bad judge.”

The good judge avoids the spotlight and is invisible until trouble brews. He has control at all times, but lets the lawyers try their own cases. He understands that real lawyers have more than one case. He knows that lawyers are real people with families and personal lives. He “moves” his caseload promptly. He also knows when a lawyer truly needs an adjournment and gives it to him. He can’t be walked over. He commands respect without having to demand it. He knows (or learns) the applicable law and all the proper rules of evidence and civil procedure. He makes prompt procedural decisions, but not until he first permits the lawyers to make their legal arguments. He doesn’t take offense easily or arbitrarily threaten to hold attorneys in contempt. He understands that expert witnesses have professional practices and tries to accommodate their busy schedules, knowing that the litigants will suffer if he precludes the expert’s testimony because he is not available at the judge’s “beck and call.” He is willing to work when the trial starts and not procrastinate. He doesn’t try to scare the parties or harass the lawyers. He makes the jurors comfortable. He is an honor to the sacred oath he takes to uphold the “public trust” and faithfully and impartially discharge and perform all the duties incumbent upon them. In short, he channels the wisdom of King Solomon, who implored God to give him “an understanding heart to judge thy people and to know good and evil.”

The bad judge can hurt or kill your case.  He behaves like a tyrant. He interposes himself unnecessarily and tries the case for the lawyer, frequently losing it. He makes facial gestures to the jury, improperly and surrepticiously opining about the evidence in ways that won’t show on the record and, therefore, cannot be appealed. He doesn’t care whether justice is served, as long as he “moves” the case. He will pressure whichever side seems most pliable, regardless of the equities. He will “ice” the jurors by making them  wait  unnecessarily until they become so jaundiced by “the process” that the lawyers feel compelled to settle. He will unnecessarily berate an attorney, often threatening to hold him in contempt.  He relishes the chance to harangue inexperienced lawyers. He doesn’t know the law and doesn’t care to learn it. He forces the lawyers to produce expert witnesses at times when the witnesses have genuine scheduling conflicts, thereby creating unwarranted and untenable animosities between the witness and the lawyer. He makes attorneys sit and wait for days to pick a jury thereby creating office management problems. In short, he promotes the sale of Pepcid, Pepto Bismol, Xanax and Prozac.

Perry Mason, Boston Legal, L.A. Law, Law & Order miss the real action which frequently happens on the bench.  Judges rule their courtrooms like feudal lords. The great ones are like Solomon: wise and courteous. The bad ones are stupid, lazy and/or nasty. Once a client gave me a sweatshirt imprinted with the words, “A good lawyer knows the law. A great lawyer knows the judge.” The lawyer who can’t tell the difference between the good and bad judges, is doomed.

* Author’s Comment: the blogger takes literary license to use masculine pronouns so that the prose flows and does not cause the reader to doze.

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“If you want it, here it is, come and get it, but you better worry ’cause it’s costs some cash.”

I was a first year law student attending my first day of class at the College of William and Mary and espoused with a thirst to for knowledge – to learn “the law.” Socrates would have been proud.

The course was titled, Property 101. Professor Pompous stood before the class. “Who among you,” he queried, “believes that possession is 9/10th of the law?” I raised my hand. So did many of my classmates; the rest wondering if it was a trick question. “Put down your hands,” he said with a smile. “By the end of the year you will learn that ‘possession’ is meaningless. The rule of law prevails.”

And so we journeyed through the course – from real property to personal property:

• Leasehold rights passed from lords to knights.
• Title chains lost and gained.
• Adverse possession? An ownership obsession.
• Riparian rights about the water? Does it matter – cash or barter.
• Who owns the air? Sometimes its shared.
• The statute of frauds; decisions narrow and broad.
• Equitable conversion and ownership reversion.
• Inter vivos gifts and partnership rifts.

He went on and on.   

By May, I was convinced. Later, imbued with confidence and my knowledge of “the law”, I emerged from the ivory tower of learning, passed the bar exam and began to practice law. It took about a month to learn that everything Professor Pompous taught me was a fairy tale. If John’s tool shed is on Jane’s land, she needs to pay a lawyer to sue him to have her day in court. That takes time and money. If she wins, he can appeal. If he loses the appeal and he still doesn’t remove the shed, she’s got to sue to enforce the judgment. If she doesn’t have the patience or the money, she loses.

My world was shattered. It was like learning that there was no Santa Clause, that the Easter Bunny didn’t eat the carrot I had left the night before.

I looked it up. When Professor Pompous graduated from law school, he worked for a “white shoe” corporate law firm long enough to have a cup of coffee. Then he decided to teach. He didn’t know jack.

In the real world, possession may not be 9/10 th of the law, but it’s better than half.

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In New York State, parents are legally obligated to support their children until they become emancipated at age twenty-one (or sooner, under certain circumstances). The child support laws are codified as Domestic Relations Law § 240(1-b), commonly known as the Child Support Standards Act. DRL §240(1-b) requires each parent to pay support based upon a percentage of gross income (less deductions for NYC taxes, social security and medicare payments). Payment is based upon a schedule: 17% if one child; 25% if two children, 29% if three children, 31% if four children, and at least 35% if four children or more. The law is gender neutral; so the formula applies to any parent, male or female, as long as they are non-custodial, meaning that the child does not live with them. Enforcement of the law becomes more complicated when a parent has children with more than one partner.

To illustrate my point, consider the plight of the licentious Easter Bunny (EB). He is biologically challenged by the tendency of his species and genus to profusely propagate. Simply put, Mr. Sylvilagus Dicei is a male whore. He tries to fertilize any Easter egg he encounters. But his baby mamas have to pay for carrots and a lair on Watership Down and that costs a lot of cabbage.

He’s married to Mrs. Rabbit and has four children: Flopsy, Mopsy, Cotton-Tail and Peter. Unbeknownst to his spouse, he also has a bunny with a Dutch baby mama, named Miffy. When he fails to support his little bastard, Miffy takes him to court and establishes paternity. The judge tells EB that he has to pay to play. EB is an independent contractor and makes $100,000 per year (after the appropriate deductions) on his Easter gig and royalties from the sale of Beatrix Potter books. The judge awards Miffy 17%, or $17,000. She brings an enforcement action which she serves upon him at his personal residence.

When Mrs. Rabbit greets the process server, she is hopping mad. She sues for divorce on grounds of adultery and is awarded custody. On a pendente lite motion she demands child support for her four children. She presumes that she will receive 31% of EB’s annual income or $31,000, but the judge awards her a lesser sum. He properly rules that the formula for child support must take into account EB’s legal obligation to Miffy’s son. He deducts $17,000 from $100,000 and awards Mrs. Rabbit $25,730 which is 31% of $83,000. Because she snoozes, she loses $5,250. It’s not fair, but the law is the law.

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A will has no force nor effect until it is probated and the Surrogate determines that it is genuine, that the testator had testamentary capacity, that he was not unduly influenced by another person, and that he published the will before signing it. When a proposed executor submits a probate petition, he must notify all of the deceased’s heirs at law. Each must either waive his or her right to contest the will or be cited to appear in court to oppose the will. Problems arise when the testator’s family cannot be located. Petitioners frequently must hire a genealogist to locate lost heirs. The task becomes more difficult and expensive when the decedent emigrated from another country and his birthplace is unknown.

Yesterday, I met with a client who must locate the heirs of a man who was born somewhere in eastern Europe. Thinking about this problem and given that today is St. Patrick’s Day, I started wondering how difficult it would be to probate St. Patrick’s will.

Some historians have postulated that St. Patrick was not a living person, but a fictional character of legend.　They’d get an argument, but not absolution, if they confessed their sinful thoughts to Father O’Shea this morning at the Cathedral which bears the Saint’s name.　And they’d get a beer in their face but not in a glass if they voiced their opinion today in any Irish pub in Woodside.

For the true believers, St. Patrick is as real as the sun setting over Galway Bay. 　But experts dispute his birthplace.

Various accounts have St. Patrick being born in Scotland, see: http://www.catholic.org/saints/saint.php?saint_id=89 and in England, see: http://www.vortigernstudies.org.uk/artgue/guestjelley.htm and in Wales, see: http://www.historic-uk.com/HistoryUK/Wales-History/StPatrick.htm and in Boulogne, France (as per Dr. Lanigan, author of The Ecclesiastical History of Ireland) as referenced in this scholarly article, http://ads.ahds.ac.uk/catalogue/adsdata/PSAS_2002/pdf/arch_scot_vol_005/05_261_284.pdf and, in Gaul, see this scholarly article: http://www.sangrial.com/pdf_files/saintpatricksfamily.pdf . To confuse things even further, Gaul was a Roman province which covered the area from France, Belgium, and westernmost Germany, see: http://en.wikipedia.org/wiki/Roman_Gaul.  Since St. Patrick was a Roman Citizen and the territory of Gaul also included the Italian Alps, even the Italians have laid claim.　

While the proponent of the will would have a huge problem, his birthplace is not of concern to his many fans.　　We can all share St. Patrick today, because everybody’s Irish on St. Paddy’s Day.   Slainte!　　

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It’s a dilemma that every estate planner faces. Mrs. Martinez’ grandniece, once removed, (GNOR) makes an appointment for her to make a will. At the appointed time, they arrive together . . . alone. Mrs. M. is a lovely lady somewhere between 80 and 120 years old, has a strong accent and doesn’t hear well. GNOR offers to sit in on the consultation and translate. During the introductions, GNOR explains that Mrs. M. is a widow and lives in a large, old house. Her four grown children live out-of-state. GNOR lives in Mrs. M’s basement, pays no rent, but helps with the chores. She says that Mrs. M. wants to give her a power of attorney and devise her the house when she dies. She offers:

My Aunt’s an old woman who came from Peru;
She needs an estate plan but doesn’t know what to do
Her children are absent, don’t visit or call
As God is my witness, they don’t help at all.
One is a doctor who lives in St. Paul
Another’s in Georgia and speaks with a drawl
I moved in last year when my aunt had a fall
I’m here to help her for the long haul.

At the ends of the story Mrs. M. starts to bawl. What’s the real story? Should my skin start to crawl? As I offer her a tissue and a glass of water, I suggest that I speak to Mrs. M. privately.

Many elderly people find themselves alone when their spouses die and their children are grown. They need assistance and companionship but their traditional family supports have collapsed. So they look for other options. Hopefully they have well-meaning extended family members or friends who fill the breach. But too frequently, they are preyed upon by grifting wolves who cloak themselves in a shroud of love and friendship. The lawyer’s job is to help the client tell the difference. It’s a delicate but necessary task. You must separate the client from the “helper” so that you hear the clients’ wishes without interference. It’s essential to know if he or she is able to make an independent decision and isn’t unduly influenced. If you sense that the “helper” is helping him or herself, it’s time to pull the plug on the consultation as a lawyer is ethically estopped from preparing an estate plan for a client who is unduly influenced or mentally impaired. It’s a hard call, especially when the client is a stranger and seems to be in danger. The meeting is fleeting and physical infirmities like hearing loss or speaking impairment, may make an elderly person seem mentally incompetent when they are not.

The elderly client and the “true helper” are better served when the lawyer makes careful inquiries such as I have described. If he doesn’t, the will may be denied probate when a distributee challenges it.

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Generally, property owners in the City of New York and villages on Long Island owe no duty to pedestrians to remove snow and ice that naturally accumulates on the public sidewalk in front of his or her premises. A failure to shovel may result in a fine from the local municipality, but no liability to a third-party plaintiff. So what happens if you, as a property owner, begin to clear the snow and ice from your property and do a poor job of it? New York Courts have found that once efforts have been made to clear the snow and ice from the public sidewalk, a property owner can be found liable in negligence where his or her acts create or increase the hazards inherent in those conditions.

Having undertaken to clear the snow and ice, a property owner is obligated to exercise reasonable care in doing so. Failing to do so can lead to a jury reasonably inferring that the dangerous conditions present are the result of an incomplete and incompetent snow removal effort. It can also be inferred that the property owner’s conduct created or increased a hazard that would not have existed but for the property owner’s actions.

When the inevitable storm hits our area again (and we know it will), make certain you have the necessary tools, shovels, snow-blowers, salt and sand, to start and most importantly finish the job. It is prudent to make sure you have used all reasonable care to clear the dangerous conditions from your property to avoid slips and falls which could result in a negligence action against you. Remember, your children are a cheap and effective way to remove snow and ice, after all, shouldn’t they work for their day off?

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When the negligence of a person or entity causes the death of another, the estate of the deceased may bring a lawsuit for “wrongful death.” In many ways these lawsuits are the same as any other personal injury action. Both suits require the plaintiff to prove that the defendant was liable . . . for negligent or intentional acts. Both suits entitle the victim or his or her heirs to recover damages for economic loss and pain and suffering. But what happens when the deceased victim is unemployed and dies instantly at the scene of the accident? The New York wrongful death law does not give the decedent’s loved ones the right to recover money damages. Sounds a bit unfair in the abstract, but put it into context and think how truly unfair it is. So we’ll call our victim “Grandma.”

Grandma lives with her cancer-stricken daughter, disabled son-in-law and their six autistic children. She’s retired and living on social security. But she’s still active and vital. She bakes a perfect pumpkin pie, helps out with the kids homework, pitches in to cook and clean and still has something left on her curve ball. She’s loved by all. One day she walks to Waldbaum’s to buy a quart of milk and some Fig Newtons for the kid’s after-school snack. She carefully looks both ways as the stoplight shines its steady green beam upon her. As she takes measured steps through the crosswalk, she is struck by a speeding drunk driver smoking a crack pipe. Grandma dies instantly.

Should Grandma’s family be compensated? The New York State legislature says “No!” Strictly applying the wrongful death law, Grandma’s family is not entitled to compensation. Because she was retired, her estate suffered no loss of income. And because she died instantly, she didn’t suffer pain. The law provides no remedy.

As he drank the hemlock, Socrates philosophized “the law is hard, but the law is the law.” If you don’t like it, write to your legislators and tell them to change the law. Grandma’s family will thank you.

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