Pulling Back the Legal Curtain

Ever wonder what really goes on during trials in New York City? Join Paul Edelstein and Glenn Faegenburg, two seasoned trial attorneys from. The Edelsteins, Faegenburg and Brown, for lively conversations with former judges, experts, doctors, and other trial professionals who have the real scoop on New York City’s sometimes tumultuous and always intriguing trial scene.

Pulling Back The Legal Curtain Episode 15 (Part 3): Huge Reductions from Punitive Damages 03/21/2025

Pulling Back The Legal Curtain Episode 15 (Part 3): Huge Reductions from Punitive Damages Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner, Glenn Faegenburg, with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kinds of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right, so now we can go... Let's talk about the last component. We'll try to do this one. This one I think we could do easily, even though it seems like a complex concept. So now, Dan- Daniel Thomas: Yes. Paul Edelstein: ... let's get back to this, Dan. So, we're back now talking about damages, as if this is a whole new podcast. Daniel Thomas: Okay. Paul Edelstein: Well, even though it's the same running podcast. It's not that I... And I wore the same clothes for this next episode, just in case my mom is like, "You wore that shirt the last time." Anyway. Daniel Thomas: Continuity, though. It's for continuity. Paul Edelstein: Yeah, exactly. So in this case, in the Harley case, we know that this jury awarded $220 million in punitive damages. Now, we can do a whole podcast on how you do that, but this discussion is really about the reduction that happened, and how this punitive damages award was reviewed by our really fantastic trial judge, and how we thought it would be reviewed by the appellate courts, which is essentially what this trial judge was doing. He was essentially saying, "Well, I'm going to apply the law that the appellate courts will apply and do it at this stage," which I think was... A lot of judges, by the way, wouldn't even do that, right? They would just be like, "Ah, what do I care? Let the appellate guys decide it." Our judge didn't do that. He said, "You know what? No, I'm going to handle it as if I were an appellate judge," which I think was a great thing to do, and actually, I think a service to our clients by doing that, not just, we would say punting, right? "Eh, I did enough. Let the appellate courts decide it." He decided, "No, I'm not going to punt to the appellate courts. I'm going to have extensive briefing," which he did, and oral argument on both the compensatory aspect of damages in this case, which you and I already talked about, and the punitive aspect of damages in this case, right? So he looked at the punitive damages aspect of this case and he understood, as did us, after you explained it to me, that the punitive damages bears a relation to the compensatory. And by the way, when I talk to people, they had no idea what it was in it, but they gave $220 million in punitives and now the punitive damages award, I know my client's one was reduced to something like $35 million from $110, and yours was reduced also. Daniel Thomas: From $120 million to $24. Paul Edelstein: So mine was reduced from $120 to $35. So again, that's another one where people are like, "What the F? What? How can that be?" Except you and I understood how it could be, and we were not surprised. Again, we argued for a higher number and I think the law justifies a higher number, but we weren't like, "What..." We didn't have a "what the F" reaction when we saw that. We weren't like, "Well, this is crazy." Did you think you got screwed by the judge? Were you like... No, neither did I, but yet everybody else that was looking at this was like, "What?" They couldn't understand. Daniel Thomas: We knew we were going to be constrained by the law and the judge was going to be constrained by the law the way it's currently exists. Now, in a prior segment here, I mentioned that punitive damages is like the blind spot in the law, all right? Punitive damages, the entire premise behind punitive damages is to punish the bad actor, to somehow exact a punishment for the sake of deterring and the sake of making sure that there are changes to the protocols, the practices, whatever the bad conduct was, that it be altered and stopped. And the goal here is that if you give a big enough penalty that the bad actor will change their ways. That's the premise behind it. Compensation or compensatory damages happens all the time, lots of material to work with to compare injuries. Punitive damages, on the other hand, are very, very idiosyncratic, very specific to the player, very specific to the conduct. And to me, I understand how it can be abused. You need some regulation on a punitive damage. There was a time when somebody can be awarded a dollar compensation and get $10 million in punitive damages because there was no real injury, but it's an offensive concept of what happened. You see that sometimes in racial discrimination cases or sex discrimination cases where the person, they suffer emotional injuries, nothing physical, but yet not enough meat on the bone for a big compensatory number, but the conduct is so outrageous that the jury will punish them with a large punitive damage. Paul Edelstein: Right. So let me ask you a question. Is there any case you could get $1 in compensatory damages and $10 million in punies? Is that possible? Daniel Thomas: It is possible. Paul Edelstein: No, keeping it, to keep it from the appellate division. Daniel Thomas: Oh, that's a different story. Paul Edelstein: Well, that's what I mean. A jury could do it. Daniel Thomas: Yeah, keeping it- Paul Edelstein: But let's talk. But we're talking... This podcast is not about what a jury could do really, but why our award was reduced and what goes into that. So- Daniel Thomas: And the answer is, under the law, under the Constitution of the United States, which is essentially the document that is used to hold up and say, "What is reasonable in the form of punitive damages?" you cannot get $1 compensatory and $10 million punitive because there is ratios. There's basically a multiplier that's attached to the compensatory to arrive at the punitive damages number. Paul Edelstein: So let me see if I can explain it to you like I had to explain it to my engineer client. He's smart like you, but I had to explain this concept. What I told him is I said, "Look, there has to be a relation between the punitive damages and the compensatory award." Okay? So first, the jury has to decide should they punish this defendant? And in our case, they did, and that was clear. We know that. And then they have to decide, well, what would be an appropriate punishment? And I talked about this in another podcast, but like $220 million in punitive damages would not be an appropriate punishment for me if I did something bad as a lawyer because I only got $220 in the bank, so that would be crazy. But for Harley-Davidson, we know that was appropriate based on the value of the company. So this jury did that appropriately. They're like, "Well, we know the value," and they actually ascribed 1% of the value of the company to each of our clients. That's where that number came from. They're like, "Oh, they're worth $11 billion. Let's give $110," they went a little higher, "$120 million for each client." It had reasonableness to it. But then when the appellate, when the judges look at it, they had to apply a legal standard that the jury wasn't even told about though, which is that that number has to relate to the compensatory in some fashion. So you can't have the $1 compensatory example, which you just gave, which was great, and the $10 million punies, even if you're really pissed off about the conduct. We get it, but not fair. So the United States Supreme Court came out with a ruling, and they said, "Look, there's some guidelines here. Here's what we want to see." And they said that any ratio that's higher than 10:1 should be strictly scrutinized. That's a good legal term which everybody can understand because the US Supreme Court said, "Look, if the ratio is more than 10:1," so like your $10 million to $1, it's a lot higher than 10:1, then the Supreme Court said, "you've got to really look at that closely. There's got to be something really significant there. Otherwise, it's a denial of due process." There's your constitutional element. But they said anything below 10:1 can be reasonable under the circumstances that the court should then look at all the things that you just said, the conduct and all this kind of stuff, and evaluate it and pick, as you just said, a ratio, so decide what ratio to apply. So if your compensatory is $10 million, and then the court should say, "All right, well, what should the punitive ratio be? 1:1? Another $10 million. Is that appropriate? 2:1? $20 million. 3..." And so forth. And so look at the ratio. And our judge did that. Did he not? Daniel Thomas: He did. Paul Edelstein: And what did he come up with? Daniel Thomas: He arrived at the conclusion that the Morris case, it was reasonable under the circumstances to award punitive damages four times the compensatory. And in the SinClair case, it was reasonable to award punitive damages five times the compensatory. Paul Edelstein: Well, wait a minute, why? That's interesting. We talked in the first segment of this podcast how being dead was worth less than being alive. But now you're telling me in the punitive damages aspect, your client got a higher ratio from this judge than my client. How do you juxtapose that? How do you explain that? Daniel Thomas: You juxtapose that because the net that gets cast by the court in terms of items to be considered is much wider in punitive damages assessment than it is in the compensatory damages assessment. So for example, you couldn't get a line item for Harold, who was Pam's boyfriend. They lived together for years. They were each other's soulmates, right? Paul Edelstein: They were married. You could say, you basically could say that. I know I wasn't allowed to say it at a trial, but this is my podcast, I can say whatever I want. Daniel Thomas: It's true. Paul Edelstein: They were essentially husband and wife. Daniel Thomas: They were husband and wife, minus the paper. Paul Edelstein: Correct. That's right. Daniel Thomas: In every respect, they lived as husband and wife for years before this, minus that legal document from New York State that recognized them as married, and that was enough to exclude him from any category of compensation. And however, that's on compensation. Punitive damages, the court is allowed, and I believe the court did properly consider all of these variables. The fact that Pam's daughter is disabled with medical illness, that she has a granddaughter who required her assistance in raising her, the fact that she, while not legally married, was essentially married to Harold, all of these are factors that the court could factor into what is a reasonable ratio to apply to the punitive damages assessment? So that is the reason why I believe Pam's case got a higher ratio than Harold's case because there was not a fair compensatory understanding by the law of this fact pattern, so the judge compensated by using those freely available factors in the punitive. Paul Edelstein: Dude, that's the greatest thing that you've said all day. You know why? Because it makes the most freaking sense of all the damages components we've talked about today. Here you are basically telling me, "Okay, the dead plaintiff got more, got compensated higher because of what happened to her," which is the ultimate loss, even though my client suffered immense loss. Obviously, no question. But here the law did something that, to me, makes sense. You know what's so funny? Because both of our father's, lawyers, they actually knew each other. They were good friends and went to law school together and all. It's amazing. Okay? Very different guys, just like you and I are very different guys, but my father used to tell me all the time, because he didn't study like your dad and you. So he would say, "Look, if you don't know what the law is, I'm going to tell you this." He would say, "Most of the time the law makes sense, so what you think makes sense is probably the law." The funny thing is, in the world of damages, it doesn't. In compensatory damages, what's reasonable under the circumstances, we talked about that earlier, where you got hurt, it boggles my mind, but we operate in it. But in the punitives world, boy, oh, boy. The punitive damages law makes a whole lot of sense, doesn't it? Daniel Thomas: Yes. Paul Edelstein: So you think this judge made a whole lot of sense in his award there? Daniel Thomas: Absolutely. Paul Edelstein: All right. So I'm going to wrap this up because this is the way to end, right? Daniel Thomas: Yeah. Paul Edelstein: So now you and I are sitting here, we've got this award in the Harley-Davidson case that was reduced, chopped. I don't know what other headlines we saw or emails we got, like, "What?" But they were all with exclamation, "What!" From $287 to $80, essentially something like that, but I mean, just a giant amount of number was lopped off. But you and I were sitting there saying, "Well, we read the decision," and while we argued for a higher number, neither of us were like... we had the WTF reaction. Neither of us did. We both were like, "We get it." So now, we're waiting for an appellate division to decide whether this judge, Judge Doran, got it right or within the range of rightness because as you and I both know, no one can say, "Oh, it should be $82 million and not $81." I mean, that's just ludicrous, right? So the question for you is, and I'm sure your clients asked you this, and my clients, okay, so did he get it right? What's going to happen at the appellate level? Daniel Thomas: He did get it right. I believe that he took such great pain to spell out his logic, his reasoning, what he relied upon, abided by the law, quoted papers from both sides, quoted the law, quoted the transcript from the trial, cited to evidence that he's built enough credible support for his conclusions, that I believe the appellate division is going to respect his decision and not alter it any further, neither decrease it or increase the number, but rather affirm the numbers as he's changed them and modified them because he did such an incredible detailed job at making the changes. Paul Edelstein: Again, that's a very good, intelligent response. And what I would say is, I agree with you, all right? Oh, but I say it a little differently. I always say things a little differently than you. I think the judge got it right, or within the realm of rightness, and he would've been just as right if he had said $90 million or $100 million, but if he had said $150, $160, something way higher, I might've felt differently. So I think he's in the range of rightness, and I think the judge is right. I think the law is wrong. I just do. So I'm hopeful the appellate division sees it to say, well, and I think they will, that judge applied the law that's right, and I wish our legislature would understand that there's some wrongness here, particularly in the area of wrongful deaths and people not getting compensated properly for that and do something about it. Daniel Thomas: Well, in actuality, the legislature does understand that. It's our governor who doesn't. Our governor's the one who vetoed three years in a row this Grieving Families Act, which had bipartisan support and passed the state legislature. There's been overwhelming support for this, and the governor's the one who's vetoed it, and ultimately, I don't ever see her signing it. So New York's going to have to have a new governor before we see the Grieving Families Act actually passed and made into law. Paul Edelstein: Good. So let's end it, let's end it there, and let's make a request for all six people that have watched this podcast to send it to their politicians, to the governor, and send out your last request because it's just ridiculous. Daniel Thomas: Absolutely. And you know what? All I got to do is say, "Give five minutes of understanding to the life that Pam SinClair and Harold Morris had, and to the absolute foreclosure and preclusion of compensation for his losses from her passing, and that will show you the injustice and the unfairness of the state of law in New York in this area." And here's a man who literally has lived on pause. His life was paused until he had a chance to be heard in court, and a jury came back and delivered the verdict that they did that basically said, "Hey, Harley, you're not proper for blaming him for this. It's your fault and it's because of you he has this tremendous loss." So while he has some degree of solace that came from the result, he never will ever get back literally, figuratively, monetarily, or in any other way, the true loss that was exacted on him by all this. Paul Edelstein: No. You said it better than I said it to this jury. All right, listen, that's it for today because you know why? I got to go to Staten Island where your case is worth the same as it would be in Brooklyn, and let's thank God. Thank God for that. All right, we'll chat more, but I really appreciate you explaining this to me, well, I knew it a little bit, but explaining it to anybody who's actually going to log into this. Daniel Thomas: Sure. Paul Edelstein: You're the man. Daniel Thomas: Actually, can I steal one more quick moment of your time? Paul Edelstein: No, there's no quick moments with lawyers. You know that. What are you going to steal? What are you going to do? You're going to steal more than one. Daniel Thomas: I just wanted to share one thing, that the system does allow for some sort of a rightening of the wrong by something called interest. Paul Edelstein: Oh, no, no, no. Another podcast another podcast. Daniel Thomas: Just give it quick lip service, okay? Quick lip service. So those are thinking you said, "All right, so now you got reduction to this $80 million. Now what?" Well, we've entered in this into court something called the judgment. And now with this judgment, there's interest running at just shy of $20,000 a day until it gets satisfied or until the case gets resolved. And if that takes years, then that's $20,000 a day for years. So there is a sort of back-end equalizer to certain extent that helps reduce the game-playing that often happens when a plaintiff is victorious and the defendant wants to sort of mess around, but this, they're going to try and negotiate down off of that, but... Paul Edelstein: Well, here's what I'll leave you, Dan. All right? We started out by seeing with a reduction in this verdict, prompted most people to respond by saying, "What the F? WTF?" Let's hope on your last sentence that this $20,000 a day in interest that's running from this judgment causes our defendant here, Harley-Davidson, somebody over there to have the same reaction, "What the?" and maybe decide to do the right thing. I hope so, I doubt it, but we'll talk about interest another time. Daniel Thomas: All right. Well, thank you very much for having me. Pleasure. Paul Edelstein: You're the man, Blanky. Thanks. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/35808160

Pulling Back The Legal Curtain Episode 15 (Part 2): Reviewing The Harley Davidson Trial 03/07/2025

Pulling Back The Legal Curtain Episode 15 (Part 2): Reviewing The Harley Davidson Trial Paul Edelstein: All right, now let's pick up again. We're going to pick up again now because I got my Brooklyn shirt. Daniel Thomas: Okay. Paul Edelstein: And it's ironic that I would have that on. I didn't even plan that as you know. As I said earlier, it's because I took off an uglier shirt here in my office here. And it's important when you were talking about compensatory damages, when they get reviewed by your trial judge, which was what we had here, or an appellate court, which is where we're going. We now have compensatory damages awards for Harold and Pam, and they were both, the jury both gave... Do you remember, what was the total compensatory for Harold? I don't even remember the exact number. I don't know, approximately the jury gave- Daniel Thomas: 11.8 to Sinclair, and I believe it was almost 30 to Harold. Paul Edelstein: Okay, right. Let's just call it $30 million in compensatory damages to Harold, much bigger number because he could argue future pain and suffering. Sinclair doesn't have that ability. He can argue future medical needs. Sinclair didn't have that ability. He has those, she doesn't have those, and hence the difference in numbers. But now we knew, okay, those numbers are not going to hold up when this judge reviews it because you and I both know that this judge is going to look to appellate division law and say, "All right, what does that say?" Now here's another whole area of law and I asked you, "What do you think about some of these areas of law before? Were you angry and frustrated?" And you gave such a great lawyerly political answer, which I wouldn't have given because I just think it sucks. I think it's just ludicrous. It makes no sense to me, these areas of law, one being that you're worth more alive than dead, ridiculous. And this other one. This other one is that appellate courts will look at compensatory awards like ours and say, "Well, those [inaudible 00:02:01] here's the law." People say, "What's the law? What is this?" Does it deviate materially from what would be reasonable under the circumstances? I don't know what the hell that means, okay, but I know how it's applied in the law and here's why it's even stupider in my opinion, and it goes to my Brooklyn shirt, because you know we have four appellate divisions in New York State. New York's a big state. We have four different departments. We have the first department, which is Manhattan- Daniel Thomas: And the Bronx. Paul Edelstein: And the Bronx, okay, because it's so big. We have the second department, which is Brooklyn, Queens, Staten Island, and Long Island. Daniel Thomas: And Westchester. Paul Edelstein: And Westchester, there you go. That doesn't make sense either, because I don't know, we're skipping around. I don't know who drew this map. It sounds like we should have some fighting over districting and redlining here. Nevertheless, that's the second department. Then we have the third department, which is upstate Albany, I think. Right? Or that area. Daniel Thomas: Putnam County up all the way to the top. Paul Edelstein: There you go. And then we have the- Daniel Thomas: About Syracuse, and then you have Syracuse West. Paul Edelstein: West is the fourth Department. Okay. We've cut up New York into four areas, but let's just talk, and we know that our area for this case that we're talking about, the Harley Davidson case is the fourth department. But for the purposes of explaining why this is a strange concept that people don't understand and I don't like, and you'll give a political answer, but I know you don't like it either. I'm in Brooklyn. Let's do this. You don't have your Manhattan shirt on, but I know you're a Manhattan. My broken leg, if I had it and some jury was valuing it, will be worth more in Brooklyn when it's reviewed by an appellate division than my broken leg will be in Manhattan where you're sitting. Isn't that true? Daniel Thomas: Yes. Paul Edelstein: That's stupid, okay, because the law says, well, it has to deviate materially from what a reasonable juror would think is okay under the circumstances. If a jury gave me $25 million from my broken leg in Brooklyn, an appellate division is going to look at that and go, "Yeah, that deviates materially from what's reasonable. Okay, I could agree with that." $25 million, my leg is healed, that's too much. Fine. Reduce it. But in Brooklyn, second department, they would reduce it, we know, to a certain range. And in Manhattan it would be, actually you and I understand, that would be a slightly higher range. How? I want you to explain this to me in layperson, explain it to me like I'm seven years old. Why is my broken leg worth more in Manhattan than it is in Brooklyn? If the law says, "Well, it's just deviates materially from what a reasonable juror would say is appropriate under the circumstances," how could that be different over the bridge? Daniel Thomas: Economics. Simple as that. The first department that's made up of the Bronx and Manhattan have per capita, higher wage earners, higher net worth value individuals. Therefore, they play the game at a higher level in terms of the courts. The boroughs tend to have lesser high net worth individuals. Therefore, the values are less. And it all comes down to economics, which is why the third department is less than the first and the second, and the fourth department is less than the first and the second. It all comes down to the economics and geography and demographics. And that's the justification that's used. Not that I accept and agree with it, but I'm just giving you an answer to your question. Manhattan is the spoiler, which is why the first department tends to be higher in its awards than the second department. Paul Edelstein: That's funny, because that also was a really nice, very political, very intellectual answer. But my answer would be different. It's bull. Okay? It doesn't make sense at all. There is no legal justification for this principle that exists, but there is the legal reality that we both know that jury verdicts, whatever a jury gives, tend to be higher in the first department than the second or the third or the fourth. Now, that could be socioeconomic. Could be. Maybe that's an explanation for why jurors tend to give higher rewards in certain areas. Maybe there's a socioeconomic relation to that. A lot of lawyers would say that's the reason why, but again, we're just dealing with six individual people each time. There's some randomness to this. Nevertheless, when it goes to an appellate court, now I'm not dealing with just six random people. Now I shouldn't be dealing with a socioeconomic component to this. Now I should be dealing with sterile application of law. And that law is the same in all four departments, right? It's the same law, right? There's no different law is there? Daniel Thomas: Same law. Paul Edelstein: Okay. They apply the same law in four different departments, four different results on the same broken leg. Isn't that what happens? Daniel Thomas: Yes. Paul Edelstein: You're okay with that? Daniel Thomas: No. Paul Edelstein: Okay, good. Lisa- Daniel Thomas: I like cross-examining you. You're a good witness. But there's a difference between liking something and acknowledging and accepting that is what it is. And let me just draw a parallel, if I may. Foreclosures. Foreclosures happen all over the state. All over the state. The department that pumps out the most amount of foreclosure law is the second department for two reasons. There's way more homes in the boroughs than there are in Manhattan, and there's way more people in the homes in the boroughs than there are in the rest of the state, relatively speaking. That's why the second department, they're the most prolific writers of foreclosure-related law, encounter the most interesting and diverse and unique scenarios. And that basically controls the whole state because that's where the majority of the people are who are bringing these lawsuits relative to residences and things of that nature. And that's just a reality. And if you distributed the people and made the homes much more plentiful in the third and the fourth, then you would see a shift in terms of where the majority of the law comes from. I use that as an example here to say that most broken legs that come from auto accidents are fairly the same. You have mild, you have medium, you have severe. Some people never recover. Some people recover in a couple of weeks, some people recover in a couple of months. You take those three as a criteria and just say, "If you fall into one of these three, mild, medium, and hot, like wings, those three categories, one of those three, you get what's reasonable under those particular categories." That's compensatory. And that's what the courts do is they basically say, "What's the majority of the decisions that predate this one?" And if we average them or aggregate them and say, "What's the norm?" That's what this has to fit into. They take a specific result and they say, "How does this compare? How do we match the color scheme of this one case to the entire universe of history on these types of injuries?" And they come up with a number and they say, "This either is reasonable and we leave it alone. It materially deviates from what's reasonable, so we have to change it and modify it down. Or it's inadequate or insufficient compared to what the traffic allows, so we've got to adjust it up." Now, that's the one saving grace about the law is that in, and I'll use the Harley case as an example. Jury came back with $287 million. Your client's first reaction was, "What's wrong? Everything was fine. Why can't we just keep that? That's what the jury did. Isn't that the system? Jury speaks and we listen." Well, not so fast because it materially deviates from the norm. Now, this case doesn't fall into a norm. This is an- Paul Edelstein: Well, that's true, but let's not argue. We're going to just talk a general concept here. Daniel Thomas: Okay, fair enough. Paul Edelstein: This general concept of compensatory. We know that 287, we know $220 million of it was punitive, which we're going to talk about in a few minutes, but the rest of it was compensatory. Daniel Thomas: Compensatory. Let's just go back- Paul Edelstein: And you and I knew that was going to change, that compensatory number was going to change. Daniel Thomas: That's right. We did. But the point I'm making is, let's assume the jury came back and they gave $5,000. Who would be the one fighting to say, "Hey, this wasn't right"? Paul Edelstein: Spoken like the son of a judge. It's fantastic. All right. I'm the son of a street lawyer who's going to tell you I don't like it. I don't like the way it's applied. But both of us are right. Both of us are right, and we both have to operate, and we both do, under the realities of a system. We've had to have this experience of explaining to our clients, and I hope we're explaining it here on this podcast, the reality of compensatory damages and how this works and how both there is an analysis of what's reasonable for a particular injury, but also a secondary analysis of what's reasonable where you are, which is, I think for most people they think that's crazy but we know that's the reality. And so in our case, let's bring it back to our case compensatory wise, and we'll wrap up on the compensatory discussion here. We had a $220 million punitive damages award, that last, was it $67 million was awarded in compensatory to both of our clients. But we both knew, okay, that $67 million is not going to hold up based on our understanding of what's material and reasonable under the circumstances and the limitations of law, particularly law involving somebody that dies, horrible that law is limited, and that we were in the fourth department, not in Brooklyn. Daniel Thomas: Right. Paul Edelstein: Crazy stuff, right? Daniel Thomas: Yep. Paul Edelstein: Knowing all of that, when the judge then reduced, let's just talk about the compensatory number from $67 million to, I think he reduced the compensatory number from... See, this is how prepared I am. From $67 million to an aggregate of what? What was his total compensatory with the two cases combined in the reduction? Probably 20 something. [inaudible 00:11:59]. Daniel Thomas: Yeah. Paul Edelstein: Right? Okay, whatever. He reduced it almost by two thirds, let's just say. Were you shocked and outraged? Daniel Thomas: No. Paul Edelstein: Neither was I. Okay. But yet we received a lot of, "What the F?" calls. Daniel Thomas: And the reason really is because what the judge did, which was the right thing to do, is said, "I've got to look at a body of recovery that's been deemed acceptable by the higher courts for these similar types of injuries." Now, no case is identical. No death is the same. No broken leg is the same, but there's enough similarity where you can say, "This is what is reasonable." Now, I just want to mention just a quick, something called workers' compensation. There's a whole body of law. Paul Edelstein: Don't do that. What are you crazy? Daniel Thomas: No, this is the point I'm trying to make. There's a body of law called workers' compensation. There is a set value for an eye, for an ear, for a toe, for a hand, for a foot. In that world, they're set. And so you think to yourself, "Well, why don't we have that in just general common law?" And the answer is because you need to have wide open field to allow for individuality. Although the court system and the case law has created an aggregate norm, if you will, that's used as a litmus test. And that's what the struggle is. Now, there is no one precise number for every case, but there are ranges, and the ranges- Paul Edelstein: Well, we know why. We know why, because if somebody punched me in the mouth and broke my mouth, it would be worth more than punching someone else in the mouth. If somebody hurt Dan Thomas' brain, that could be worth a lot. More than mine. Daniel Thomas: Well, again, that's what I said before about if you're a concert pianist and you have a hand injury, that'll hurt you more than if you're a public speaker and you have a hand injury. It all has to relate in that respect. But you have to compare the concert pianist with the hand injury to a concert pianist with a hand injury if you can do it fairly. Paul Edelstein: Nevertheless, let's just wrap up on the compensatory part. I think both you and I can agree that this judge's decision to reduce the compensatory damages' aspect of this case by nearly two thirds was not met with shock and anger by us. We certainly understood, hey, it's going to come somewhere in this range. And this judge came in within that range, did he not? Daniel Thomas: Yes, he did. Paul Edelstein: There you go. Now people should understand. Let's wrap that part up. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/35575950

Pulling Back The Legal Curtain Episode 15 (Part 1): Reviewing The Harley Davidson Trial 02/26/2025

Pulling Back The Legal Curtain Episode 15 (Part 1): Reviewing The Harley Davidson Trial Paul Edelstein: All right, here we are today in Brooklyn with Dan, who's in Manhattan. Dan Thomas, we should say. It's strange that we have you here on the guest of the show because Dan, you know the title of my podcast, which is watched very carefully by my mom? And the title of it is Pulling Back the Legal Curtain, which is kind of funny because you, we refer to, as our blanket, blanketing us, always having us covered. And the podcast is attempting to uncover things. So I guess you're probably a great guy to have on to uncover things since you always have me covered. Does that sound good to you? Daniel Thomas: Love it. Yeah, that sounds just about perfect actually. Paul Edelstein: All right, and since there could actually be someone listening that's not an immediate family member of mine, they may not know who you are. So I'm going to give you a little brief intro. You've been a trial lawyer probably longer than me, so I would say north of 30 years. That sound right? Daniel Thomas: Correct. Paul Edelstein: Yeah. There you go. A fantastic trial lawyer. You and I have tried many, many cases together. In fact, hence your nickname as my blankie. I don't like to go anywhere without you. Certainly not a trial. And your father was a very prominent Supreme Court Judge in Queens County for more than 20 years, from my recollection. Is that right? Daniel Thomas: He's 28 years on the bench. Paul Edelstein: 28 years. Sheesh. So basically your whole life as a lawyer pretty much. Daniel Thomas: Yeah. Paul Edelstein: So you basically know a lot of stuff and that's what makes me look good as a trial lawyer. So that's fantastic. But I know there's one thing you really know better than anybody I know, and it's something that we all as trial lawyers want to think we know, right? And that's judgments. So it's Judgment Day here on the Pulling Back the Legal Curtain Podcast- Daniel Thomas: Okay. Paul Edelstein: ... for you and I. And so on Judgment Day, I figured I had to bring in my blankie, had to bring in the most knowledgeable guy I know about judgments to talk about judgments. So that's what we're going to do today. Dan, it's the Senate confirmation hearings going on today, as you know Dan every day. So Dan, Mr. Thomas, do you feel comfortable, prepared to talk about judgments today on this podcast that can be viewed by literally three or four people? At the very least. Do you feel comfortable doing that? Daniel Thomas: Three or four, or three or 4 million? Actually, I'm ready to go. Paul Edelstein: That's it. See, you're always the same, whether it's three or four of my relatives or 3 million people watching. So that's perfect. So here's where I want to start because it's weird. We're going to start at the end. Anybody who's watched any of these things, I guess, or knows anything about us, knows that you and I took a verdict against Harley Davidson Motorcycle Company, a big verdict for $287 million this summer in a really tragic case, a product liability case. And we've talked about it, or I have on all their podcasts, whatever, a million different things. And there's been a ton of media on it and a million questions I get asked about it and I know you must as well, right? I'm sure everybody asks about this case, right? Daniel Thomas: Yes. Paul Edelstein: So all anybody really seems to here or think about, they hear that number, which obviously, look, it's a big number and it made sense when we got it and we knew that. But recently, within the last month or so, the trial judge in this case heard the motions post-trial to set aside the cases. This is a very common thing. It happens in every single case. Every winner, every loser says, "It's wrong. Judge overturn it," Before you even get to appeal. And that's what happened in this case. And our judge, a judge named Craig Doran, upstate New York and the fourth department, amazing judge. What'd you think of this judge, by the way? Put you right on the spot. Daniel Thomas: If not the best judge I've ever appeared in front of, definitely top three, hands down. He was spectacular. And I say that because of the way he was quick with his decisions. He was purposeful, he was thoughtful, he was extremely fair. He really bent over backwards to give equal time, as much time, let everybody be heard, made sure the record was clean for everybody. And at no time did you ever feel like, "Gee, I'm getting hometowned or I'm getting screwed here." The guy played it up the middle every time, no ifs, ands, or buts. So on top of that he has a great sense of humor. So that added to the fact that we were with him for a month and really it was a pleasure. But I have nothing but amazing things to say about his judicial prowess, his legal acumen, and his understanding of what it means to be in the heat of battle in trial in this business. Paul Edelstein: That's great that you say that because we know you know that there's about a 0% chance he would see this. So we know that that was an accurate assessment since now way he's going to watch this, except my three subscribers, none of which is this judge. Nevertheless, this was a great judge. So here's what's very interesting, but this judge, then on the motions to set aside the case, actually took the $287 million and... Actually this is a good... Pull up the headlines. Pull up the headlines that we just saw. It was like this week, the Bills lost another championship game, horrendous for everybody in western New York. And the headline of the newspaper the next day was that Bills lost, but also judge reduces award in fatal motor crash. And I mean, it's amazing, right next to what really was big news that day obviously in this area, western New York Bills championship game loss, was our case. But the headline grabber, the thing that really grabs you was that this got reduced. So let's talk about that for a second, right? Because the first thing that happened is this judge, this amazing judge, this judge that you just said was the greatest thing ever that you've ever been in front of, right? That's what you just said about him. Daniel Thomas: Yeah. Paul Edelstein: This guy knocked the verdict down from $287 million, and I think the article cited it saying he reduced it by $210 million or something like that. Daniel Thomas: $9 million. Yeah. Paul Edelstein: See, that's why I need you, because of the math. So that was the headline, right? This amazing judge did what? Right? So I know, and this is why I wanted to get on the call with you, right? Because I'm like, as soon as that happened, and the article in the Buffalo paper was actually a little late, the reduction actually had happened I think maybe a month before, a few weeks before. But there were other headlines, and you have a lot of them I know, and everyone, so a law journal reported on it, and the legal papers definitely reported on it. I think local papers up there reported on it. And it was on the internet and whatever. So I got a million calls including, obviously, from the clients, rights? And every one of them started the same way. It was a, "What the..." I can say it's my podcast, but we'll give it to the WTF. I got texts. I got emails. Daniel Thomas: Right. Paul Edelstein: I got phone calls that were all, "What the F?" All negative. So the first thought of everybody was this amazing judge, that you just really recited, and I agree, I was there in front of the guy for a month and I've been doing this for 30 years too. Did what? Outrage, right? Is that the reception you got? Daniel Thomas: Yes. From those who don't know, it was outrage. It was, "How can he do that? The jury has spoken. The system is broken. It's rigged. It's fixed. Who's paying these guys under the table?" I mean everything under the sun about how can that possibly happen. Paul Edelstein: Right? That's what I heard too. Did the judge get a Harley David? Who does he work for? Daniel Thomas: Right. Paul Edelstein: Then there was also the story because the judge announced his retirement. So people were like, I got a couple calls, "Wait, he retired? Where's he going?" Yeah, it was amazing. Right? Daniel Thomas: With all the money he got from Harley, he doesn't have to work anymore. Paul Edelstein: Right. That's what people were asking. And I was like, "Whoa, whoa, whoa, whoa, whoa." So I had to painstakingly explain, and that's what I want to talk to you about today. Daniel Thomas: Okay. Paul Edelstein: I said, "No, no, no, no. Actually what the judge did in reducing this award by $209 million was actually not the problem." He didn't really do anything in our opinion, I know you and I have talked about this, really that was so wrong. We understood and we thought it was going to go right up kind of in that area, but obviously we would've liked a little higher, okay? Harley would've liked lower. But nevertheless, we certainly knew it was coming into some range because we understood that the problem wasn't the judge. But if there was a problem, and I think there is, and we can talk about that, it was the law. Daniel Thomas: Yeah. Paul Edelstein: And that what this judge did was simply apply the laws that he was given to the jury's verdict. And so now, I've had to explain this to so many people, including my mom, who maybe she'll watch this podcast and won't ask me again, "How did that happen?" Obviously, our clients, who we explained this to before this even happened, right? We said this is what we think will happen and why. But I even had to explain this and maybe you have, to lawyers. Have you had to do? Daniel Thomas: Sure. Sure. Paul Edelstein: And now that one surprised me, right? Then I had to actually explain to other lawyers who were calling me about the verdict and then saw the reduction and were like, "What the F? What happened? What is this?" And I'm like, "No, no, no, let me explain it to you." So I asked the question to you, a $209 million chopping, did you have anger towards the judge? Anger towards the law? No anger at all. How did you feel? Daniel Thomas: Well, I definitely had no anger towards the judge. I have less so no anger towards the law, but not complete lack of anger towards the law because I do believe that the concept, the principle of law that's in play here is reasonable. Unfortunately, there's a whole area which is in a blind spot, which this case fell into, and that's something called punitive damages. Paul Edelstein: That's interesting. But wait, let's put that one aside because you've got a lot of things going on here, and you and I know them. So let's try to explain them in a competent way. So if somebody's actually watching this- Daniel Thomas: Sure. Paul Edelstein: ... they could be like, "Wow, I get it." So the first thing that struck me... So let's only talk about the money, because that's all that's really important. So the reduction of $209 million. Okay? Because he could have thrown out the case, the jury's finding on liability, and we know he obviously didn't do that, and that was a well-reasoned decision based on the law. That was fantastic. Okay. But the money one is the one where people were like, "What?" And I had to explain to people, "Well, let me explain to you how this works." And it works in essentially two general ways, and then I'm going to let you explain it in a little bit more detail. And the two general ways are that this jury awarded two types of damages, compensatory damages, and you just explained punitives, which has got some more complexity to it, and it's second. That's why I want to table it for now. So the compensatory damages were to compensate our clients. So you didn't tell me to slow down. You usually tell me to slow down. Daniel Thomas: No, you're good. Paul Edelstein: My podcast, right? I could go as fast as I want. So the compensatory damages were to compensate our clients or their losses, whatever happened to them. So our clients had different types of losses. So let's talk about Harold's first. Daniel Thomas: Okay. Paul Edelstein: Harold had compensatory damages of the following. He got really badly hurt. So he had pain and suffering, broken bones, and surgeries, and things like that. He had medical bills and there were allegations that he would have medical treatment in the future. He had these things and then he had emotional loss and all of these things that go along with his physical loss. And so he was able to go in front of a jury and say, "I need to be compensated for that." And they compensated him for that. Your client on the other hand, had different types of compensatory losses. Right? Daniel Thomas: [inaudible 00:12:27] Paul Edelstein: So why don't you explain what those were? Daniel Thomas: Sure. And again, this case involved two accidents with the same exact motorcycle. One before- Paul Edelstein: Let's not even complicate that, because that does complicate it. Let's just talk about the second one. Daniel Thomas: Well, let me just give lip service to the first one because essentially the compensatory damages, if you get hurt like my client did, and required a surgery on her hand, she fractured her foot and hurt her hand, needed a surgery. Those are somewhat tangible injuries. Those are things you can say, "Okay, well were you a concert pianist or were you a public speaker?" Your hands are going to matter. Were you a marathon runner? In which case, foot injury might have a greater loss to you if in fact that's where your injury was. So those are factors we have to consider when you ask yourself what's reasonable, what's fair, things like that. So here's basically a retired woman who didn't make a living with her hand or a foot, but had gnawing issues, had continuous pain when the weather was a certain type and things of that nature, but nothing enough to stop her from living her life, just adding some degree of inconvenience to her activities of daily living. Paul Edelstein: Okay. But that's the same as Harold, let's say. Daniel Thomas: Yes. Paul Edelstein: So my client also had injuries. He was retired. So neither of our clients could claim lost wages. Daniel Thomas: Right. Paul Edelstein: So in that sense, they're the same. Daniel Thomas: That's right. Paul Edelstein: But I want you to explain that it's obvious, a big difference for Pam SinClair, she had a compensatory claim and an injury, the worst type of injury you could ever have. Daniel Thomas: Right. Paul Edelstein: That's different than Harold's. Daniel Thomas: That's right? And the worst type of injury you could ever have is death. And sadly, that's what happened to Pam SinClair. And she had suffered a death in a state of fear and the fear that again, our job as lawyers are to bring to the forefront for the jury's consideration, how much detail and how much nuance could we mix into the facts to give them some sense of if they were there. And I believe we did successfully, as is demonstrated by the verdict, that the jury really understood the full impact of this woman's demise, how it was completely unnecessary. It was all due to Harley's negligence. Paul Edelstein: Oh, yeah. Daniel Thomas: They basically lied about their data, they covered up their lie, and then they lied about their cover-up. Paul Edelstein: Well, that's true, but let's just talk in a general sense. So Pam died and Harold lived. Daniel Thomas: Yes. Paul Edelstein: And both of them, we went to the jury and said, "You got to compensate them for that." Daniel Thomas: Right. Paul Edelstein: But you and I both knew that one case, from a compensatory standpoint, was strangely going to be worth more than the other. Which one was it? Daniel Thomas: Strangely, the one that's worth more is Harold's. Paul Edelstein: Therein comes the WTF again, right? I really should be able to, it's my podcast, but I try to keep it clean. That's another one, right? So we had compensatory damages, but you and I both knew that no matter what this jury was going to do, and they did, they gave Pam SinClair exact, based on what you were saying, they understood holy, horrible, what happened to her, compensated her off the charts. I forgot the number, but they did it exactly right in compensatory. And they gave Harold a very appropriate compensatory number also. But you and I both knew before we said one word to this jury, that Harold's case, under the law had a higher value than Pam's. Daniel Thomas: That's in New York state. Paul Edelstein: That's messed up. In New York state. Daniel Thomas: Right. Paul Edelstein: In Brooklyn. But we're going to talk about that. It's so funny. I have my Brooklyn shirt. The only reason I have my Brooklyn shirt is because I had an uglier shirt on top of it before we started the podcast. So now I got my pretty Brooklyn shirt on, and I'm going to talk about that in a minute. We're going to take slight break- Daniel Thomas: Right. Paul Edelstein: ... of Brooklyn, why it's important, Brooklyn and where we were in Livingston County actually makes a difference. But let's first talk about the general thing between- Daniel Thomas: Sure. Paul Edelstein: ... your worth. I want you to explain in your fantastic ability as an orator to a layperson audience, why you are worth less dead, your case is worth more if you live in New York state than if you die, because it's just a ridiculous concept to me. Daniel Thomas: That's right. In New York state, unlike many other states, majority of states, if you die, the only people that are entitled to be compensated for your death are your blood relatives, as in your child, your spouse, that's it. That's it. If you have a domestic situation, you're not legally married. That person's out of the box. If somebody cared for you for years and years, you had a tremendous bond, under the law in New York, irrelevant like they're a stranger in the street. So you're limited in the damages in terms of death to a finite category that is no longer resembling the majority of the way people live in life. Paul Edelstein: That's crazy. Let me give you a scenario. Daniel Thomas: Yeah. Paul Edelstein: I'm driving in a car. I am a very high-powered, high-earning, extremely handsome, young attorney, making a living. Daniel Thomas: Right. Paul Edelstein: Okay. I have two young children, who are fantastic too. I'm driving in a car with my wife. My wife is an extremely attractive, young, really smart, amazing person. But she doesn't work. Daniel Thomas: Okay. Paul Edelstein: No earnings. Daniel Thomas: Right. Paul Edelstein: She really does work, but she doesn't have earnings. She works her behind off doing a million things, but she's- Daniel Thomas: Not a wage earner. Paul Edelstein: Correct. Not a wage earner. Okay. And I'm going to put someone else in the car. Daniel Thomas: Okay. Paul Edelstein: My grandma, she's not here anymore, but let's bring her back to life and put it back in the back seat of my car. Daniel Thomas: Okay. Paul Edelstein: My retired grandmother who has no spouse, no job, nothing. Okay? Daniel Thomas: Okay. Paul Edelstein: Is in the back seat of my car. My wife is in the front seat of the car. I am driving. And a giant tractor trailer smashes into us head on and all three of us die instantaneously. We never know what hit us. It's actually right. We're all immediately dead. And now one of our heirs comes to your office and says, "Okay, obviously it's not our fault. This is a slam dunk case. What do you think the value of the three different cases are?" I'm saying they all died. Daniel Thomas: The answer to that- Paul Edelstein: They all died. It should all be the same. And what's the answer? Daniel Thomas: No, the answer is it's not even close to the same. So the husband, wage earner, husband, father of young kids, is by far the most valuable of the three, because he has all these line items to his credit. He's a... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/35440065

Pulling Back The Legal Curtain Episode 14 (Part 4) Featuring Sharieff: Life As A Clerk 04/05/2024

Pulling Back The Legal Curtain Episode 14 (Part 4) Featuring Sharieff: Life As A Clerk Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain, I am your host Paul Edelstein, I'll have my partner Glenn Faegenburg with me most of the time. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court and wondered, what the hell is going on in courts? It seems like every day we have these kinds of questions that get asked then, so on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. Back here with Shareiff. Shareiff, you really are every man on the street, man, you just tell it like it is, right? Shareiff Council: Yes, sir. Paul Edelstein: I've never been worried about you giving it to me straight, which is good. But you know what? I want to ask you a question as a clerk. We talked earlier that I was a clerk first for my father, so I did everything that you did, and I think that was good training for being a lawyer to know all that kind of stuff, right? So I'm going to ask you a question, I'm going to ask, but you could think about it because I'm going to tell you mine. What is the wackiest thing that happened to you? Wackiest clerk story. Now I'm going to tell you mine first, but you could think about your, look at you making faces already. You want to go for it? Shareiff Council: Because I have the craziest, you know this, the crazy. Paul Edelstein: You want mine or you want to go yours first? Shareiff Council: Go yours first. Always name-dropping. Paul Edelstein: Just leave out names, don't leave- Shareiff Council: All right. Paul Edelstein: Name-drop all day, you can get me sued. Shareiff Council: All right, that's another act. Paul Edelstein: Dude, you know there's a confidentiality between lawyers. What are you doing? Shareiff Council: No, I'm talking. Go ahead. Paul Edelstein: All right. Damn, yours is going to be funny. Shareiff Council: Listen, RA. I was going to say RA, and you think about that. Paul Edelstein: Yeah, exactly. A matter of P, you know that one. I'm going to tell you mine, because I was thinking when I was going to talk to you, I'm like, "You know what? I remember a funny..." So when I was a baby lawyer, my father Saul, I know you know my dad really well, all right? So he was a really famous divorce lawyer back in the day. I got two good ones, right? But this one's the clean one, all right? I'll give you the dirty one some other time. He wanted me to serve a client, a husband with a complaint. I know you've process served a million times. He's like, "Go serve this guy. You'll make a hundred bucks or whatever, 75 bucks. Get this guy, he's right in Brooklyn right near where you live. You got to hit him with a complaint." But this guy was avoiding serves. So I'm trying to get him, and I freaking can't get him and I'm like, "What?" And now I'm embarrassed, because my dad's like, "Dude, this is a no-brainer. He lives right over here in Brooklyn. Just get his apartment, just drop and he doesn't have to take it. You could just drop it at his feet." All that kind of stuff. He's like, "Just get him." So now I can't get the guy, and I'm embarrassed to go back to my dad and be like, "I failed." I was a kid. I don't even know if I was a lawyer, might've been law school. But I was a clerk. So I'm like, "I can't get." Well, I had this girlfriend. Was really cute. See now, I'm getting myself in trouble. Shareiff Council: I'm about to say, hold on. Paul Edelstein: I had this blonde girlfriend. Actually, she went on to be a freaking in-house lawyer, brilliant. That's why we weren't together anymore, she was way too smart for me. She got rid of me. But back then I was dating her and I'm like, "You know what? You got to come with me." She's like, "What?" "Trust me, I need your help to serve this guy." So we go to this guy's apartment building, we scope out the door. It was easy for me to get in the front door without somebody letting me in, because I'm white. Shareiff Council: See, that would've been easy, right. Paul Edelstein: Nobody was scared that we were going to do anything, and my girlfriend was also white. So we get in there, and we go up to the guy's floor and I don't know, 18th floor, somewhere up on there. I know which door it is, right, but I already know this guy's avoiding service. He's not going to open the door. This is the days before Amazon is knocking on your door every two seconds I guess. Shareiff Council: Right. Paul Edelstein: I go up to the front door, and I take my girlfriend and we ring the bell, and I put her in front of the peephole. Shareiff Council: Obviously, he opens the door up. Paul Edelstein: The guy opened the door in few seconds. Hey, look. And I'm right there, "Here you go. Thank you, sir." Shareiff Council: And then what did he do? He went crazy, right? Paul Edelstein: He laughed like he knew he got- Shareiff Council: All right, got me, good one. Paul Edelstein: All right, you got me, whatever, and that was that. That was a good one, right? Shareiff Council: That's a good one. I have a similar story about doing the process serving, serving process. So remember the Wright case? Paul Edelstein: You said you wanted to make that, mention names, man. You talking about the Wrong case? Shareiff Council: The Wrong case. Paul Edelstein: Oh yeah, I remember that one. Yeah. Shareiff Council: Okay. Paul Edelstein: I remember Wrong. Go ahead. Shareiff Council: Yeah, so boom. So anyway, I had to serve someone. I have to, you know what? Paul Edelstein: You can't mention it. Just make up a name, dude. Shareiff Council: Okay, let me see. All right, so, but I have to give the context of the case, what happened so they can have the- Paul Edelstein: That you could do, as long as you're not connecting. Shareiff Council: Okay. All right, so we had a case where our client was a bouncer at a club, right? He was a bouncer at a club, and a fight broke out, right? In a certain section of. Paul Edelstein: You're talking about this celebrity girl. Shareiff Council: This, because, you want to? Paul Edelstein: I don't care about her, she owes us a million dollars, owes my client a million bucks. Shareiff Council: That's what I'm trying to say. Paul Edelstein: All right. Shareiff Council: This was one of the wildest experiences that I've had. Probably the wildest experience that I've had as a clerk doing this. No one has ever done this to me. Paul Edelstein: All right, wait. So wait, now you got to give the context. Shareiff Council: Got to. Paul Edelstein: Yeah, because you could mention her name, right? So wait, because she was the defendant, she's not on the line. Shareiff Council: Defendant, yeah, no, not our client. Paul Edelstein: All right. And this was a public case, right, she slashed. Shareiff Council: All right, boom, okay so what happened- Paul Edelstein: Good buddy of mine. Shareiff Council: Yeah, right. I know, right. All right, so. Paul Edelstein: Rashidah Ali. Shareiff Council: Okay, he said it. Paul Edelstein: I don't care, she who? Shareiff Council: So I had to serve Rashidah Ali, and if you don't know who she is, she is a reality star, she's been on multiple reality TV shows. Paul Edelstein: Is she still a star? Shareiff Council: I don't know, I mean I- Paul Edelstein: I'm going to send you out. Shareiff Council: Looking for her. Paul Edelstein: Out looking for her again. Shareiff Council: She's best friends with Nicki Minaj or something right now, seriously. You got to see this, crazy. Anyway, yeah. Again, our client was the bouncer in the club. Fight broke out in the club. Our client ended up with the laceration across his face, right? That's a good way to put it, big, crazy scar across his face. Paul Edelstein: Yeah. Shareiff Council: So we had to serve her the complaint. She became the defendant in the case, we had to serve her the complaint. We tried to serve her. We did by mail at first. We did it every which and way we could. We tried home service, we tried mail, out of state service, every single way we could try to serve her, we could not catch her because just avoid the service, avoid the service. She has to appeal in the criminal court for the slashing of our client. We come with a plan. Yo. First, we come with the plan, hold on. Let me go over here and try to serve her. Wait, can we even serve her in court? That was the thing too, can we serve her in court? We looked it up. Oh, you can serve in court. I mean, it's not the best place to do it, but you can do it. It's not illegal. Paul Edelstein: Right. Shareiff Council: It counts as serving. Okay, cool. So I rushed out to the court. Get to the courthouse. She in the back of the court, in the courtroom. Call her up. Her lawyer doesn't show up, so now they have to adjourn her case. So they call her up, so now I know who she is, because honestly, at the time I wasn't really into reality TV. I didn't really know who she was, you know what I mean? I knew kind of what she did, I didn't know exactly who she was. And plus, these females, they be changing their hair, because again, remember the picture that we had of her? She had long hair, and when I saw her, she had short hair. Shorter than mine so I was really thrown off. I'm like, "Is this even her?" Anyway, confirm that it's her. Confirm that it's her. Now, she's walking out of the courtroom. So now I'm like, "You know what, let me try to do this in the courtroom where it's a little bit more, I got witnesses and stuff," so maybe she may not make a scene because I know she is definitely serve her so maybe she won't make a scene. So I approach her nicely, "Excuse me, Ms. Ali, how you doing? Hate to do this to you, but hey, I have some paperwork for you." She looks at the paperwork. "Oh, put it here. Oh, I'm not taking that. I'm not taking that." She calls her friend, because her lawyer's not here. So she calls her friend, her friend comes over to where we stand at. "Oh no, no, no, we can't take that. We can't take that. We're going to wait till the lawyer come." Okay, now I get it. One, we're about to break for lunch. I know your lawyer's not coming, okay? We're about to break for lunch. You had a nine o'clock appearance. Your lawyer's not here. You didn't even have the name of your lawyer so you either don't have a lawyer, or your lawyer's just not showing up, one or the other but she's not coming. So I know they were trying to dip. So whatever, they wound up leaving out the side of the courthouse, and the whole time I'm in the courthouse, I'm following them in the courthouse. You have to be in the courthouse but there's an upstairs so I follow them from the upstairs to the downstairs to the side. They're really avoiding, basically running out the courthouse. So we make out the courthouse, she's running down the block and I'm screaming, "Ms. Ali, Ms. Ali. Please don't do this to me, just take the paper," because again, like you just said, I don't want to come back and tell you I couldn't get her. You know what I mean? So I'm like, "Yo, I got to get her." She flags the cab. She's about to get in the cab. I take the paper and I go... And I just toss the paper. Didn't hit her, the paper didn't touch anybody but the floor of the cab. It fell right in the cab. I don't know why I did that. She got off the car and yo, the wrath of a Black woman, yo. Yo. She went berserk. "Oh, you [ 00:10:21], you don't ever," She was so crazy. She got the police involved. Police came like, "What do you want us to do? He's serving papers. Take the papers, call your lawyer." Police like, "What do you really want us to do?" Yo, she went off, and I was scared. I'm not going to lie. I was scared. I was scared. Paul Edelstein: She's scary. Shareiff Council: She is very scary. She is very scary. Paul Edelstein: Well, you knew she slashed my client, who's also my buddy. Shareiff Council: That was one thing, and I don't mean no offense, but she's a big girl. She's big, I don't know how to describe it, big. She's tall, she's big. Paul Edelstein: Shareiff, I'm so glad you brought Rashidah Ali up because when we get off this call, we'll pull that judgment. Shareiff Council: I'm about to say. Then she got, listen. Paul Edelstein: I'm sending you back out there, man. Shareiff Council: No, I don't want to have to face her again. And then after all of that, she tried to deny service. Paul Edelstein: Yeah, she denied service. Shareiff Council: Which she lost in the Paul Edelstein: And then you know she ultimately lost. We won the case, but she never paid. Shareiff Council: She still. Paul Edelstein: Hid her money. Shareiff Council: Hopefully this does go viral. Someone sees her, tag her, and then we can catch her. Paul Edelstein: That's right, #RashidahAli. Shareiff Council: Hashtag. Paul Edelstein: Owes me a million bucks. Tell you what, Shareiff, let's record this right now. I'm going to send you out there again. I'm going to pull the judgment right we get off this call because the judgment's 20 years. Shareiff Council: Go together. Paul Edelstein: 20 years, and she moved bank accounts, moved from state. Shareiff Council: Everything. Paul Edelstein: Went to Georgia. I remember we chased her around for a while, and then I figured, man, she had her five minutes of fame and she's gone. But now you're telling me she's friends with Nicki Minaj? Shareiff Council: Yeah. Paul Edelstein: All right, well. That's enough for me. We're going to find where she is and you're going to show up again. Shareiff Council: I get her. Paul Edelstein: This time with a judgment. You know what? You won't even have to face her, we just got to find her bank account. Episode two. Shareiff Council: Episode two. Tune back in. Paul Edelstein: Right. Because you know what, we don't go away. That judgment, it's good for 20 years. Shareiff Council: I know. Paul Edelstein: Let's go find Rashidah. Shareiff Council: #FindRashidahAli. Paul Edelstein: Anybody that watches this that knows her, we're going to give you a reward, man. No, Shareiff, we're going to give you 10% anything we collect from this girl. Shareiff Council: That's funny. Paul Edelstein: I'ma get her. All right. Shareiff Council: Somebody going to turn her in for that money. Paul Edelstein: That's right. Anybody out there, we'll give you a couple points also. Get her, find her. All right. Don't worry, we'll make good on it. Shareiff, I ever not made good on anything I say? Shareiff Council: Always, always, always make good. Always make good- Paul Edelstein: Yeah. Shareiff Council: Makes good on his word, 100%. Paul Edelstein: We're out of here then for today. That was fun. Shareiff Council: Till next week. Paul Edelstein: All right. Shareiff Council: I'm coming back. Listen, we're going to make me a special up there, okay? Paul Edelstein: Yeah. You should be special guest, man. You're more fun than these lawyers I talk to. No, that was cool. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn, because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so that it would be entertaining, and interesting, and hopefully educational. If you liked it, come join us again, or visit our website at edelsteinslaw.com. Either way, we're always going to be here, in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/30695183

Pulling Back The Legal Curtain Episode 14 (Part 3) Featuring Sharieff: How People Hire Their Lawyers 03/20/2024

Pulling Back The Legal Curtain Episode 14 (Part 3) Featuring Sharieff: How People Hire Their Lawyers Paul Edelstein: Hello. Welcome to Pulling Back the legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Fagenberg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. It seems like every day we have these kind of questions that get asked then. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right. We're back here with Shareiff. So Shareiff, we're talking a lot about what you got to go through, what people in your community go through and how you've been able to educate a lot of people as to how the law works and how to get around all of these inherent systematic biases that are in the system. And we know they exist. Well, people in your community know they exist. I got to convince some in my community. "No, no. There is systematic racism. Hello. This is just what it is." Damn. It amazes me when I have to have this discussion with people. But when I get in the courtroom, as we already talked about, we just got to start with that assumption. But now I want to switch gears. So get out of your community. I know you listening to Hot 97, right? Shareiff Council: Of course. Paul Edelstein: Who doesn't, right? Us too. Shareiff Council: Yeah. Paul Edelstein: Hot 97, we were the ones that made it pop. Shareiff Council: Right, right. Paul Edelstein: My age. Not white guys. Shareiff Council: No, I know what you mean. Paul Edelstein: Someone my age. I'm listening to Hot 97. I don't get to be in the car because I'm on the subway, so I don't get to list dude as much anymore. But whenever I pop in or I see it online or whatever, there's so many lawyer advertisements. Shareiff Council: Oh my God, what's the one? The guy with the ball. What's the name of the ball? Paul Edelstein: The ball. Yeah. Shareiff Council: Oh, man. Those things. What were you going to say? What were you going to say? Paul Edelstein: Well, here's the thing. You've been here for so long, so you get it. You know what we're all about, obviously. But you also know what some of these other dudes are about out there because what you've been around your whole life, your mom. From day one, you've just been around lawyers and everything. Paul Edelstein: What I don't get is why do people in the hip hop community listening to Hot 97, something happens to them and they're calling these dudes with these ridiculous advertisements instead of doing... You got answers for me. So where I grew up, if I needed a lawyer, somebody in my community needed a lawyer, so upper middle class white people, if something happened to somebody in my community, most likely someone in the family, the parents would either know a lawyer and they'd be like, "Well, got to go here." Or if they didn't, they would probably take the time to research and be like, "All right, I'm going to try to figure out who's best to handle this thing here." If you needed a heart surgery or a dental surgery or brain surgery, whatever, or accountant. In my community, the way I grew up, people would be like, "Well, you got to get a referral and then, or you got to research it and figure it out." But then I'm seeing, it's not even just the hip hop community. I think it's everybody that gets hurt in an accident, really. What the hell motivates them to be like, "I'm just going to call the first dude that I see on the commercial"? Shareiff Council: You know what I don't like about those commercials? And again, you have to compare. And I hate to compare myself. I'm not on some pedestal or nothing, but I just know where I came from. You know what I'm saying? I know what I knew and I know what I know now. You know what I'm saying? So when I hear those commercials, I can think about when I used to see them on TV and hear them on the radio before in the past. Again, I'm thinking that, I'm thinking I'm going to call one of those numbers and I'm going to talk to or Mr. Barnes themselves. You know what I'm saying? And again, if that's how I thought up until I was doing this in this field, that's how people think. And you know what I'm saying? Who don't don't know no better. Shareiff Council: It's so predatory. It's like they're sitting there, come on the radio, right? You're in the car, you're driving, on the radio. And then they put it, they make it seem like you're going to recover the... You're going to get life changing money. You going to recover the most money for the smallest thing, for the smallest type of accident. And we know that's not how it works. But again, up until I was doing this, I used to think, like I said, you slip and fall, you're a millionaire. You get hit by a car, you're a millionaire. Up until I knew. So again, I got to look at it from what I knew and what I know now. You know what I mean? Paul Edelstein: Yeah. But it's so wacky because we see- Paul Edelstein: Yeah, but we see so many people that get hooked up with the wrong lawyer. Shareiff Council: Yeah. It's terrible. It's terrible. Paul Edelstein: And they don't get it till it's too late. And they come to us. How many cases you seen over the years? Shareiff Council: Listen, believe it or not, and again, this goes back to what we was talking about earlier about trusting people. I've had family builders go around me and go to one of these other guys and not get done right. You know what I mean? And they come back afterwards and say, "Oh, I should have came to you." Of course you should have come to us. You know why? Because you're going to actually deal with a real person. You're not dealing with a guy who don't... Your lawyer, you're going to be hands-on with your lawyer when you come to see us. You get what I'm saying? You're not going to be dealing with a lawyer who works for Solino or Barnes who never even met Solino or Barnes. You get what I'm saying? I hate to keep throwing their names out, but they just pop in my head the fastest. Paul Edelstein: No, one of them's dead, Shareiff. I don't know- Shareiff Council: Well, you're definitely not meeting Mr. Solino or Barnes. You get what I'm saying? But you get what, but you know exactly what I'm saying. Paul Edelstein: Well, then the question for you is, how do you change that mentality out in... And let's say in your community, because I know you're an influencer there. How do you get through to people that, dude, you get in an accident, you may not want to call the first 1-800 dude on the TV. Maybe that is the right guy for you. I'm not saying he's not. But you need to think about it a little bit. I don't know how to get that message through. Shareiff Council: The way- Paul Edelstein: But you see, but the problem is just what you said before earlier, that people then just get the wrong idea. They don't understand how it works and they get these thoughts like, "I'm going to get this, I'm going to get that." Don't even understand the real thing. What a shame. Shareiff Council: Right? If you don't know somebody like me who you have direct access to who you grew up with, you don't have nobody like me who knows somebody like you, you're lost. You're lost. Paul Edelstein: But you could find people like me. The internet, dude, these days. Shareiff Council: Yeah. But then again, you always on the internet. Of course the internet. You go on the internet, file returns and stuff. Paul Edelstein: Anybody do that? Any of your friends that needed a lawyer? Take the time to be like, "Let me just research a little." Shareiff Council: I could assume some, some probably, because I. Paul Edelstein: people don't do that, but I'll tell you what, I know you're a little clothes hound. We know you like your swag, right? Shareiff Council: Yeah, yeah, yeah. Of course. Paul Edelstein: So I'm thinking, see, check you out. Check out. You got your Essentials hat, your Essentials sweatshirt on. You're all geared up. I got it. I'm thinking that before you but I got it. Before you make those purchases for a crazy pair of kicks or whatever, I'm thinking that a guy like you spends a lot of time going through all the websites that sell them so you could figure out, "All right, here it is. Here's the best price, here's where it's going to be." Right? You take the time to do that, right? Shareiff Council: Yeah. Yeah. Paul Edelstein: But you know what? But with a lawyer that could be representing your family or you in the most serious fricking thing, dudes are calling 1-800-DUMBASS lawyer. Shareiff Council: And that's only because they don't know. And it's funny you said that because I remember when I was a kid and I wanted the jacket and I wanted the North Face jacket, right? So my mother. My mother's like, "What? Jacket is $400? I'm not paying, buying no $400 jacket." Paul Edelstein: I love you, mom. Shareiff Council: Anyway, right? Called my aunt. My auntie Maddie. She gets it for me. She sends me the money right away. Wait. Now, the first store I go, my mother takes me to go buy the jacket. Literally the first store we go in, I'm like, "They got the jacket? Let me get it." My mother's like, "Hold on. Stop. No, stop. You don't just go in the store and... You shop around. You find it for a little lower and you try to figure it out." You know what I mean? And that's exactly what you're saying right here is most people just go and the first thing that they see, they don't even try to research. And it's all about knowledge. People, they don't know it's knowledge. And how do we get that message to them? By doing what we're doing right now. You know what I mean? By- Paul Edelstein: Yeah. So you better make this go viral, man. Shareiff Council: I don't know many other ways to... Yeah, I do know people. Yeah, people do call me, but that's only the people that I know. There's people that I don't know who are experiencing these things. You get what I'm saying? Paul Edelstein: We got to get- Shareiff Council: We got to get the message out to the people that don't know these things. And I don't know. Paul Edelstein: You got to get the word out. You know what I used to- Shareiff Council: You know how they do have the campaign ads against, when they running for elections and stuff? Everybody do a smear campaign ad against all of the... Paul Edelstein: I'm not smearing these guys. You can sear. Paul Edelstein: I'd rather have- Shareiff Council: You know one of them was dead? Paul Edelstein: You didn't know one of them was dead. The rumor was the other one killed him. Never heard that? Paul Edelstein: This wasn't talk. I don't know. Shareiff Council: Holy smokes. Paul Edelstein: Well, they were suing each other. Shareiff Council: I do know that. I do know that. Paul Edelstein: That's where somebody, there's no way that he killed them or anything. But he actually died in a freak, a horrible thing. But they were suing each other and all that. All about the Benjamins, man. It's always about the Benjamins. Shareiff Council: Always. Paul Edelstein: You know what? Instead of spreading smear, I would prefer to spread love. And so maybe we got to try that. You got to keep getting the word out. When I was a baby lawyer, I used to say, "Well, I'm going to educate people one juror at a time." I was getting into courtrooms and I would say, "I'll teach one juror at a time," and 12 jurors. Well, I don't get 12, but 25 in a room, six and two on a case. I'm like, "Well, we'll educate them like that. We'll educate people one client at a time." But now here I am 30 years later, people are picking their lawyers in just as stupid a ways as they were when I started. I don't know. I don't know. I don't know what else to do about it, but guess what, we gave it a shot today, right? Shareiff Council: Got to start somewhere. Paul Edelstein: Peace. Let's take a break. Shareiff Council: Let's take a break. Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/30461023

Pulling Back The Legal Curtain Episode 14 (Part 2) Featuring Sharieff: Race in the Courtroom 03/13/2024

Pulling Back The Legal Curtain Episode 14 (Part 2) Featuring Sharieff: Race in the Courtroom Paul Edelstein: Hello! Welcome to Pulling Back the Legal Curtain. I am your host Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kind of questions, and get asked them, so on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers; some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right. Now, Shareiff, now we're coming back. Now, you just asked me something. You brought up Young Thug's case, and you don't like what's going on, so that just spurred me to ask you a question that I wanted to ask you. Shareiff Council: Okay. Paul Edelstein: Right? So, let's face it, even though when you and I walk around, people are like, "Are you two guys related?" I don't know. If they see us. I don't think so, right? But if they hang out with us, maybe they go, "You guys seems to get along," right? Now, here's the thing. I know that you walk into a courtroom, you're going to get looked at, treated differently than if I walk in a courtroom. Ain't that right? Shareiff Council: Yeah. Paul Edelstein: So, I mean- Shareiff Council: [inaudible 00:01:29]. Paul Edelstein: Right. And, listen, I'm lucky. I can never experience what you've experienced. I don't care how much I learn about it, or encounter it through guys like you, I'm never going to be able to put myself in your shoes, ever. But, as a trial lawyer, if I don't take into consideration what you've got to go through, in either the clients that I'm representing... Let's say I represent a young Black male, like you. I'd better know who I'm representing, and what he's all about. [inaudible 00:02:00] damn well better know what jurors are going to think about him. And that could be any juror, right? So, you've been with me for years and years and years. How much do we talk about that element? Like race and what's going on in a courtroom, and racism and all that. We talk about it all the time. Shareiff Council: Right, right. Yeah, we always discussed it. Right. Paul Edelstein: I mean, you're like one of my my jury consultants, right? How many times have we come to you guys? Shareiff Council: [inaudible 00:02:26] your company and we sit there for about an hour, you just going back and forth about... Yeah, definitely. Paul Edelstein: Right? And you give me perspective, right? And a lot of times I want to know what perspective is. I want to know, "What's a young Black male going to think about this issue, this client, this thing?" Right? Shareiff Council: Of course. And I totally understand. I mean, I don't necessarily speak for the whole community, but I do know that there's a broad spectrum of inconsistencies, where it's like, if it happened to me, it more than likely happened to someone else that I know who shares the same complexion as me, you know what I mean? And then, another thing not a lot of people in the community and they'll do what I do, you know what I mean? So, if you want to talk about lawsuits and stuff like that, like with a car or something... You know, I told you before, I used to think that... Up until I actually was working in a field, I would think that you get in a car accident, you're a millionaire. You slip and fall, you're automatically paid. And not to sound crazy, but I'm pretty sure a lot of people think like that, and that's only for lack of knowledge, for not knowing. You know what I'm saying? And that's only from lack of... It can trickle all the way down. Lack of funding, lack of school, it trickles all the way down. It don't stop. It don't just stop at one place, you know what I mean? So- Paul Edelstein: Well, it's information. I mean, if people don't have experience, they don't have information, so you're talking about a couple of things here. I think understanding how race plays a role in every single case, like if you're a trial lawyer and you're not taking in that to consideration, you're not doing your job. You're just not doing your job. Shareiff Council: Not just my client's Black; if my client's white, if my client's Mexican. It's not just- Paul Edelstein: That's right. Shareiff Council: Race plays a part in every single case, no matter how you look at it, no matter how you want to try to deny it, because I know everything's supposed to be unbiased and everything, but it is what it is. We didn't make the rules, you know what I mean? Paul Edelstein: Right. Unbiased. So, if I were to tell you, if I were to say... I want to see your reaction. So, you're not going to be able to see this reaction if you're listening to this on the radio, but let's see your face. You ready? I'm going to go, "Hey, Shareiff." I'm a lawyer, and I'm going to say it. I'm picking a jury, and I go, "Listen, Mr. Council, I'm going to tell you..." I'm going to talk like some of the lawyers I've seen. "We're going to start this case." I can't do my defense lawyer voice. "We're going to start this case, and we're trying to pick fair jurors, right? So, I represent a young Black male. Everybody is going to treat him fair, right?" Now, if I were to say to you, "Race is not going to play a role at all in my client's case," what you think? Shareiff Council: You see my face, right? Paul Edelstein: Yeah. You see, that's why I was like. How stupid. That would be ridiculous, right? If a lawyer would even suggest that. But, you know, every time I pick a jury, that's the first thing out of, not my mouth, but the other lawyer or the judge, it's, "We're trying to pick a jury, so we're looking for fair and impartial people." Meanwhile, when I get in that jury room first, I'm like, "None of you are fair and impartial." Shareiff Council: Nobody's going to be fair and impartial. Paul Edelstein: Right. "And I can't ask for that. What I'm going to tell you is, where is what I've got, and if you have issues with it, tell me." Shareiff Council: You don't deserve to be. Paul Edelstein: Right. Now, I don't think anybody's ever going to raise their hand and be like, "I've got an issue that you've got a young Black client," whatever, but I'll tell you what, when I do... even when I don't... Yeah, I've got to tell you something. I think every single juror that I've ever told, when I talk about prejudices and biases, everybody gets afraid to talk about it. I'm like, "What are we afraid to talk... I'm in a jury room, and I need to get assurance that people are going to treat my client equally." Whatever he is, right? I don't care if he's white. Doesn't make a difference. So, we're talking about that concept, and one thing I use is to say, "Well, imagine if I walked in here with a young Black male like you, who's all tattooed up." How many tattoos you got? Shareiff Council: I don't know. A lot. I'm covered up right now. You can't see, I'm covered up, but- Paul Edelstein: You're the example. And imagine if I walked into a courtroom and I've got a young Black male, and he's all tattooed up. There's no way people are not going to make judgments about him, and if I'm representing him in a criminal case, my assumption is going to be that when I walk in with [inaudible 00:06:42] a young Black male tattooed up, my assumption is going to be when I start that people are going to say, "Must be guilty of something. Must be a bad guy," something. I'm just going to start with that. And maybe I'll try to break it down for you, but that's the prejudices and biases. Don't tell me that those don't exist, because if you do, then I think you're lying, as a juror. Shareiff Council: Right. Paul Edelstein: Right? You've got to deal with it a hell of a lot worse than me. I don't have to walk out on the street and deal with it. I don't even know what the hell that could be like for you. That's got to horrible. When I get in a courtroom, I've got a job. My job is to make sure that that doesn't affect the outcome of the case, and so if I don't think that it's a factor to start, I'm an idiot. Shareiff Council: Right. You're not doing your job correctly, correct. I agree. Paul Edelstein: Ridiculous! Shareiff Council: I agree with you 100%. I mean, honestly, I want my lawyer to be like, "Yo, listen." Again, maybe this is only because I'm in the field, but as many times as I say, "Maybe it's only because I'm in the field," you have to account for the people that's not in the field, and that's also in my demographic. Because I know a lot of people, lot of people, call me for... And it won't be a case, but they'll call me for the smallest thing, like, "Hey. The door closed on my fingernail. My fingernail broke." And it's like, "Bro, I get it, but you don't get it." And that's only for, again, lack of understanding, you know what I'm saying? Paul Edelstein: Yeah. I get it. But you know what's interesting, Shareiff, though? A guy like you is out there, and you're... You know what? There's a term for it. I've got to pull my intellectual stuff. You know I can't... I don't play that role too well. I think guys like you are called 'connectors'. There's a term for it. You know what? Maybe a better term, social media, would be like 'influencer'. But, like a connect. So, there are guys out in the community like you that the community is lucky to have, that people can go to and go, "Hey, I've got this issue." You're a go-to guy that people will say, "I've got a problem." And the good thing is that you have all of this education and experience and knowledge. Shareiff Council: Yes. Yes. Agreed. Paul Edelstein: So, that's a major factor. And that's sort of a way that communities function. You're really talking about a sociological principle here. It's interesting. I think that's what we're going to talk about today, man. Shareiff Council: Right. Paul Edelstein: Hip hop be more fun. But, you're really hitting on a really sophisticated principle, okay? And that is, where people in communities go... First of all, who they trust. Shareiff Council: Who do they trust? That's the main thing right there, is who do you trust? Paul Edelstein: Yeah. Okay. And actually, we're going to talk about that and lawyers in a minute, because that's a good topic for you and I to talk about. Shareiff Council: Remember what I told you before. Remember when we were on trial on the Stollers case, you remember what I told you. You were like, "Oh." About why people don't... And I'm like, "Yo. That's crazy. We don't really trust the court system. We don't trust the court system." Paul Edelstein: Oh, you know what? That's a great [inaudible 00:09:35]. Let's tell that [inaudible 00:09:37]. That's right. Wait a minute. Wait. So, let's tell that story. So, wait, wait, that's right. You're there with me on trial, and you're there at a lot of my trials, right? Not only because you're six-foot-five and could help me carry stuff and scare dudes away from me, but you know you're there because I'm like, "Dude, I want your opinion on what's going on," a juror, or something you see, and we value your opinion. And again, as a trial lawyer, if you don't tap into your resources... like you, and other staff that I have here... you're an idiot. But, this particular trial, now I remember. Wait. So, we had a Black female client, right? Shareiff Council: Yep. Paul Edelstein: And the issue in the case had to do with why... I think it was why she didn't do something with the police, or talk to the police, get a lawyer right away. And the defense was making a big deal out of it, right? Shareiff Council: Right. Paul Edelstein: And you, from what I remember, now, you were like, "Look..." I didn't even get it. You were like, "Paul, let me explain something to you. Black people, they don't think they're going to get a fair shake by either the police, the." Shareiff Council: not understand, and this has been going on way before me, you know what I'm saying? Like I said, we didn't make the rules. There's been so many instances of Black people walking into the courtroom and not walking out, you know what I mean? Unfairly, unjustly, you know what I'm saying? So, I hate to say it like it's in our DNA, because that sounds so like, "Oh, we can't get over it," but it's almost like it's in our DNA, like, "Yo. Stay away from the courts. Stay away from the cop. Stay away from the..." You know what I mean? Paul Edelstein: It ain't in your DNA that the system has systematically- Shareiff Council: Systematically, yes! That's the crazy part. Yo, that's the crazy part. It's like we hit the nail right on the head right there. Systematically this is done, you know what I mean? Paul Edelstein: Yo, here's the thing there. Here's the thing there. You, as in influencer or a connector in your community, got to put out there to the people in your community that you think are DNA bound to this principle. I bet you you go out there and you're like, "Listen, you get a lawyer like Paul, that ain't going to happen." Shareiff Council: All the time. All the time I'm telling them, "Listen, I guarantee you Paul, first of all, he don't..." You already know I tell them, "He don't play none of that discrimination stuff, none of that. Once you start playing on that type of... you're going to insult him, and he's going to go extra hard for you." That's what I tell them. I go, "Don't let him feel like that they're playing with you because you're Black, or you're Latino or something. He's going to go real... He's going to lose it, I'm going to tell you right now. He's going to go crazy." You know what I mean? I've been in an experience where, I told you, where I was getting... I don't even want to talk about this on the webcam. Paul Edelstein: It's up to you, man. Shareiff Council: If you really want to be transparent, there was a situation where I was getting mishandled by the police, and I had to tell them, I'm like, "Yo. You don't even understand who I work for." I was ripping into them like, "You don't understand who I work for. He is going to tear you guys apart. I can't believe y'all are doing this to me. It's because I'm Black!" I was going so crazy on them. I went so crazy. Listen, I went so crazy that when I had to go to the pretrial and pick up property. I swear, my two arresting officers, they came outside and they apologized to me like, "Yo, I'm sorry. We just did what our commanding officer..." Because basically what happened, long story short, is I... You don't have to keep the story, but long story short, long story short, when the commanding officer showed up, he didn't assess the situation or anything. He literally just looked at me and said, "Take him," you know what I'm saying? So, there wasn't no, "This happened, this happened." He didn't even... So, of course he just looked at me, young Black kid, and just assumed that I did something wrong. He went off on me. And so I feel like he violated me, so yeah, I went off on him for that. And I promise to God, when I went to pick up my stuff, both of the officers came outside something for a second. They're trying to apologize. "Sorry about that. We was just doing... You know, we weren't really acting in the right." They apologized. And I could've had them dead to rights at that point. It's still assault though, but I could've had them, though, you know what I'm saying? But, at the end of the day, my respect meant a lot more, you know what I'm saying? And the fact that they had to respect me now at that point, it meant a little bit more to me at that point. I mean, of course a couple hundred thousand would've been a little better, but, you know, hey. You win some, you lose some, you know what I mean? Paul Edelstein: Well, listen, as least you knew, because you've been here for so long, that if these guys wanted to take it to another level, that you would have the ability to even the playing field, right? Shareiff Council: Oh, my God. Go crazy. Paul Edelstein: All right.That's a good place to break. Let's break right here before we get you in more trouble, all right? Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we tried to put this together so that it would be entertaining and interesting, and hopefully educational. If you liked it, come join us again, or visit our website at edelsteinslaw.com. Either way, we're always going to be here, in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/30359613

Pulling Back The Legal Curtain Episode 14 (Part 1) Featuring Sharieff: Hip Hop Lawyer 02/15/2024

Pulling Back The Legal Curtain Episode 14 (Part 1) Featuring Sharieff: Hip Hop Lawyer Paul Edelstein: Hello, welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner, Glenn Faegenburg, with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kind of questions that get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there. And hopefully give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right, I'm here today with Sharieff. Sharieff, C. He doesn't want to use his last name. That's funny. Why don't you want to use your last name? I'm just curious. Sharieff: It's no real reason. It's just to keep the mystique, I guess. Paul Edelstein: All right. I think maybe it's because there's somebody out there looking for you. I don't know. [inaudible 00:01:18]. Nevertheless, just so people who are listening, or watching... So much better to watch by the way. Whatever seven people are actually following my podcast should really see the video because you're a good-looking dude. Sharieff: Thank you. Thank you. Paul Edelstein: Yeah. So that would be good. But just so people know who you are. Right. So, Sharieff, you're this firm's head clerk. You've been working for this firm since you were, what, like seven years old? Sharieff: It feels like it. Yeah. I've been there for quite a while. Quite a while. Paul Edelstein: How many years you been here? Sharieff: I've been working here since 2008, maybe. Maybe '08. '08 or '10. I think it might be 2008. 2008. Paul Edelstein: I don't think it's 20... I think you've been here longer than that. Sharieff: Was 2008. Paul Edelstein: And half your life you've been working with us? Sharieff: Yeah. Yes. Exactly. Paul Edelstein: That's why you're not like a clerk, you're like my little brother. You know what I mean? Sharieff: Yeah. I appreciate that. Yeah. Yeah. Paul Edelstein: There's no question. So your job as a clerk... Maybe we should talk about that first. I was the clerk, I think before you. I think you talked- Sharieff: I know. You told me. You told me. We shared those war stories before. Paul Edelstein: Is it exactly right? I did exactly what you did. And you know what? I got to tell you something, Sharieff. First of all, you know I think you should just be a lawyer. You know all this stuff anyway. You've been watching it for so long, right? Sharieff: Quite a few people tell me, "Why don't you just go to law school?" Or, "Why don't you just suck it up?" And maybe, who knows what the future holds? I really can't answer that question. I like law. I do. But like you and Arthur and Glenn, you guys, that's in your heart. That's what you guys do. You breathe it, you eat it, you sleep it. You know what I mean? You wake up thinking about it. I can't have that on my brain all day. And then you have to constantly still keep yourself knowing what's the new laws? You got to constantly keep learning. It's always learning. You know what I mean? Paul Edelstein: Yeah. Sharieff: [inaudible 00:03:22]. Paul Edelstein: Wait, what do you got on your brain all day long? It's just all hip hop. That's it? All music? Is that what it is? Sharieff: Yeah, something like that. Something like that. Something like that. Paul Edelstein: That's funny because obviously I'm older than you. So when I was 17, that's probably about when you started working here. That's when Life After Death came out. Sharieff: Ah, that's funny. Paul Edelstein: So everybody makes fun of me, laughs at me, as a 55-year-old white guy, walking around [inaudible 00:03:56] jacket and thinking I'm cool, whatever. But I'm like, "Wait a minute, wait a minute, wait a minute. Hip hop started, I was there." Sharieff: Right. Right. Paul Edelstein: "So don't tell me I don't know what I'm talking about." Now, I don't get that kind of disrespect here in my office from you. And I think that's legit. It's not just because you work with me. I get respect because I earn it. Sharieff: Your hip hop card, we've been out in a few places in the nightlife. Your hip hop card is definitely top-tier. It's there. Paul Edelstein: Yo. Now that's it. I'm stopping the freaking podcast right now. Flip that. That's all I need. Sharieff: That's all I need. Paul Edelstein: That's what I brought you on here for, man. I just wanted to get in my hip hop... I want my freaking hip hop respect card stamp because I get it nowhere. My kids think it's a joke. They're laughing. Sharieff: That's funny. You know what you got to? You got to just wake up one Saturday morning and just blast to some Biggie Smalls and they'll be like, "What the? Who's playing this?" And then they'll be surprised. Then they'll get it. Then they'll get it. Paul Edelstein: It's funny. I wasn't planning on talking into hip hop, but why not? We should be talking about that. Because I'm going to tell you, now you just reminded me of something. So having hip hop credibility, street cred or whatever, or whatever it is that I bring to the table as a white guy in a suit, but underneath, I got some flavor. You're giving me that, right? Sharieff: Yeah. Yeah. Paul Edelstein: So I think that's important. But I never realized how important that would be until I started trying cases. Because people could smell that out on you? They know. Sharieff: Wait, hold on. I think I know where you going with this. And that's because as cliche as it sounds, hip hop is really universal. You know what I mean? And not only do I listen to music, obviously, but you know that I also record music. I do things like that on the side. So the amount of people that knows hip hop across the world is outstanding. You wouldn't even believe it. I have friends in Japan. I literally have friends in Japan who listen to hardcore hip hop. They know more hardcore hit records than me. I'm talking old school, Wu-Tang, ODB, M.O.P, like old school stuff. If this where you were going, and the reason that most people can relate to you is because they get it. You know what I mean? That's the easy language. That's the easy way to start a conversation. "Who's your favorite rapper?" That's so easy. Universal language. Paul Edelstein: Listen, there's no question. Because what I do, I've got to establish credibility and a rapport with my clients, and ultimately with jurors. Now, I will say I haven't run into too many defense lawyers that I would stamp their hip hop credibility card. I'm waiting for one of them. But when I get in front of juries, particularly in Brooklyn, which is where I'm from and where I want to practice, you know what? I think I'm sometimes a smart guy, whatever. Obviously I could relate to upper-middle-class, white Jewish people. That's who I am. But if I can't relate to regular guys, I might be at a disadvantage. And I think if you fake that, people just know. You can't just be doing that. Sharieff: Hey, hey, and I'm not saying this because I work here. The results speak for themselves. What? We see what happens when we step in the courtroom. We know what happens. Paul Edelstein: You got it. So you want to hear a funny story, a hip hop story in the courtroom? I'm going to tell you one. I don't even know if you remember this. All right. So you remember this case? You were here. We had this case. The guy's name was Michael Shabayev. All right. So listen, see? You don't remember. I'm going to tell you the story. You're going to see your reaction. Michael Shabayev. All right. So I'm picking a jury on Shabayev's case in Brooklyn. So when you're picking, so you have 25, 30 people, who was a really good regular mixed Brooklyn panel. It's exactly what you want. You want this great diversity. And Brooklyn has got tremendous amount of diversity. It's fantastic. So there's people in there from all across the boards, but there's plenty of people in there that I could just tell... Maybe it's stereotypical, but I'm thinking they got their hip hop [inaudible 00:08:00] card too. So whatever. Picking the jury, no problem. But when I'm done with the first round, the picking... The way it works is like, all right, so we talked to 8 people first, but there's 25 in a room. So we pick 4 jurors out of that first 8 and they're selected. So we have to tell the 8 of them, "All right, you guys, here's what we're doing. You 4, Smith, Jones," whatever it... "You guys are on the case. And you other 4, you've been excused from the case. So you got to go to the clerk's window." So you're giving them instructions, like what to do. And everybody else is still in the room, hearing you. So I'm telling him that. And I'm like, "Listen, you go to the clerk. You got to tell him you were selected on the Shabayev case." And they're looking at me because it's a weird name, Shabayev. And I'm like, "Shabayev. Like Shaba Ranks." So exactly. Now, I wasn't planning on saying that. I don't know. It just came out. Now, my defense lawyer was... Let's just say he didn't have his hip hop card. I don't think he had his freaking any card. I don't think this guy is from Earth. He didn't even know. They were all laughing, the jurors. And a lot of the jurors that were in the room were laughing. Obviously it was the 50% of the jurors that knew who Shaba Ranks was. But I'm telling you, obviously they were like, "This white guy in a suit knew about Shaba Ranks?" Whatever. The case was over. So you see where this comes in handy? I bet you never thought the hip hop credibility card could be so valuable for just a white lawyer in a suit like me. Sharieff: Hey, that's hip hop for you, man. It's universal, like I said, it's what it does. Paul Edelstein: That's right. I didn't even have to go to school for that. It was just normal. They just loving it. See, this is where hip hop comes into the courtroom in a big way. Sharieff: We've seen it though. We've seen cases where... Like if you look at a lot of high profile cases, you know what I mean, that's involving hip hop artists and stuff? You'll see the sway of the jury so much that most of these cases are closed off to the public. You know what I mean? Because they're so influential. If you look at this whole Young Thug thing... I know this is a criminal matter, but this whole thing with Young Thug and then going onto Atlanta with doing everything. If he don't get a mistrial then I don't understand. It's so many things that should not be happening, happening. Paul Edelstein: I tell you what, you're going into a different topic. Sharieff: Yeah, I'm going somewhere else. Paul Edelstein: No, but that's okay. Because let's talk about that topic. Let's switch topics. Let's take a second. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining, and interesting, and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/29972573

Pulling Back The Legal Curtain Episode 13 (Part 4): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County 11/28/2023

Pulling Back The Legal Curtain Episode 13 (Part 4): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County Paul Edelstein: Hello, welcome to Pulling Back the Legal Curtain. I am your host Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain." All right, we're back here with Judge Charles Thomas. Now retired, but maybe he should be unretired. I think they should really recruit you, get you back. Charles Thomas: As a matter of fact, they have re-instituted the JHO program starting back in January, and I have put in an application for it and I may or may not do it if they accept me. We'll see how I feel. Paul Edelstein: Just so people know if they're listening. JHO is a judicial hearing officer, right? Charles Thomas: Right. Paul Edelstein: So you're not officially the judge, but for all intents and purposes, you are. Charles Thomas: You can do a lot of things with the JHO. Paul Edelstein: I like it. I hope they bring you back. They should. But I want to ask you a different question. Charles Thomas: Sure. Paul Edelstein: Something little bit more ... Well, we've been a little personal today, you and I, you know? Charles Thomas: Yeah. Paul Edelstein: But you know that I'm the son of a lawyer, grandson of a lawyer, and you are the father of two trial lawyers. Two actually really prominent trial attorneys. What was that like? You being on the bench, having two sons practicing sometimes in your court? Not really in front of you. They're both civil trial lawyers like me, so they wouldn't really be in your part, but what was that like? Charles Thomas: Well, let's see. When they went to law school and they'd come home with questions, I would hide because I didn't know the answer to those questions. I'd try to avoid them. I'm just delighted and flattered that they're doing so well, and as far as I'm concerned, being a lawyer is the best job in the world. You go until you drop. You can't be fired, especially if you work for yourself. And I'm very proud of them and I'm delighted. And I would say, in all honesty, they are probably a lot better lawyers than I ever was. My kids spend all day in court. They're in front of it. They know every judge in the county, just about. One of them took about 400 verdicts so far. In fact, this week he took three verdicts. Three verdicts. Most lawyers don't take three verdicts in a year. They're out there working and I'm very proud of them. Paul Edelstein: Yeah, there's no question, but reeling back, what influence did you exert for them to go to law school? How much, if any? Charles Thomas: Well, with one, there was no question he was going to go. There were two, they're twins, as you know. One of them was going to go, no question about it. He liked the idea. The other one was going to become a doctor. He went to college. Organic chemistry did him in, and the instructors were not English speakers, so to speak. He had people that had different ... He had difficulty understanding it. He didn't like it and he graduates ... He had a history degree, poly ... Whatever he had. I said, "What's he going to do? Look, go to law school." He said, "No, I don't want to go to law school." I don't care what you do in this world. I don't care ... You can shovel manure for all I care, but just get a law degree and then you can do anything you want. It turns out he took to it beautifully. He got a job with a law firm after ... Through a recommendation, and he was hired on a Tuesday, and then he got a call, "Come into the office on Thursday, pick up the file, and you're trying a case on Monday." Trying a case, he doesn't even know where the courtroom is, in his life. He said to his employer, "I don't know what's going on." He says, "Hey, you're a son of a judge. You can do it." Yeah, he was right. He was right. Paul Edelstein: Was that Peter or Dan? Charles Thomas: That was Peter. Paul Edelstein: Wow. Boy, that makes a lot of sense now, doesn't it? Charles Thomas: Yeah. Yeah. Paul Edelstein: Because Peter is one of the few lawyers that exists that could probably be in that situation today. In other words, well, he certainly knows what he's doing now. He wasn't, first day lawyer, but here's a rare lawyer that could actually be handed a file, which sometimes happens without much notice and can handle it. You think that came from you? Charles Thomas: No, it actually came from him. He was always out there as an entertainer when he was in school. He was working for a guy who did events ... Step up and light a candle after the bar mitzvah, that kind of stuff, and it's all over. He's an actor. And by the way, he had a trial on that Monday morning in front of one of the toughest judges in the county, the late judge Arthur Lunshine, and they got along beautifully. It's worked out, especially for him. The other guy, who you happen to know, Daniel, he took to it right away. I recommended that he go, I said, "Get a good specialty, but I would practice law." I took whatever came in the door, which is okay, but I would've been better off just focusing on the one thing, something like medical malpractice. And he got an internship at a medical mal firm, a very prestigious medical mal firm, and he stayed on. They offered him a job and blah, blah, blah, blah. The next thing you know, he's into it, been 20 some odd years, 25 years. I don't even know. Whenever they graduated. About 20, 25 years. Paul Edelstein: I think it's more. I think you're off by a couple. The first time ... Charles Thomas: I could be. Paul Edelstein: And I think you're wrong. Charles Thomas: Okay. All right. Anyway, that's the ... One guy, yes, then one guy I had to push and they both succeeded very well, thankfully for that. Paul Edelstein: Well, how much of you do you see in them? In other words, the skills that you have and the things that you connect with, do you see in your sons. Charles Thomas: Skill wise, I see a little bit of me in both of them, but not to the extent that they're emulating my style. I don't think they are. I can't say I see that much ... No, not really. They're individuals. They're not the same. They're not carbon copies of each other either. They're different personalities. As an example, when I asked Peter what time it is, he'll look at his watch. When I asked Daniel what time it is, he'll tell you how to make a watch. That's the difference. Paul Edelstein: Oh my gosh. That's funny. Interesting questions though. Another interesting question for me ... By the way. I know both of your sons incredibly well. They both happen to be very dear friends of mine and I've worked really closely with both of them over a long period of time and rely on both of them. How much do you think it affects them to know, like when they're in court every day, that their father was such a well-regarded judge for so long? Charles Thomas: I hope they're proud of it. I think that my influence ... I couldn't pass the business on to them. I don't have a business, but I could pass an attitude and I could pass an idea. I could pass on the whole concept. And I think I've done that and I think they're thriving as the result. Paul Edelstein: There's no question. Charles Thomas: Yeah. Paul Edelstein: So now I grew up the son of a lawyer. With some similarities, maybe, as your kids growing up in your house. So I know what my dinner table was like when I was in high school and college. Being there with a lawyer who, you know, you aren't really going to get away with certain answers with my father, if you know what I mean. So what was your dinner table like? Charles Thomas: Well, I tried to avoid being embarrassed by the law questions so I tried not to go too deep in it. I was there to help them. I gave them, I think, the best tip anybody could ever give a law student. And if anybody is a law student, I'll pass it on. Get PJI. Paul Edelstein: The patterned jury instructors, you're saying? Yeah, but you know what, now you're talking about when your kids were really getting in law school or becoming lawyer, but how about when they were in high school? Because that's a pretty formative age. When I was in high school, my dinner table, sitting there with a lawyer and I knew he was a big character. That had to be the way your kids viewed you at the dinner table in high school. What was that like? Charles Thomas: A dim memory. Paul Edelstein: Maybe not for them. Charles Thomas: Yeah. Well, I'm sure they could give you the answer, but I really can't. We had dinner every night. That was one thing I really liked about being a judge. I came home, we had dinner every night together. No TV in front of you, that type of thing. It wasn't like, "Let's go out for pizza," my wife was cooking every night. It was wonderful. They had a wonderful upbringing, in terms ... I'm saying that. I think it was wonderful. It was wonderful for me, and I looked back with real affection, but I can't tell you, "Well, I did this and I said that and they said this." We had good interaction and don't forget my daughter is involved in the whole thing too. The star of my show is my daughter. Paul Edelstein: Yeah, I know your daughter as well. So why didn't she go into the law? Smart, maybe, right? Charles Thomas: No, she was ... Actually, no, that's not true. I got her a job. She was a paralegal. She was doing very, very well in an immigration firm. She didn't want to go to law school, but she was doing well. She speaks fluent French, and so she got an opportunity ... Somebody mentioned get involved in the modeling business as an agent, and that's what she did, and that's what she's been doing all these years. No, she was good, but she didn't want to stick with the law. She was very good as a ... What's the word I'm looking for? Paul Edelstein: I guess, a paralegal, but she didn't stick in that ... Charles Thomas: Paralegal. There you go. That's the word. Yeah, she was good. She knew her stuff, but she didn't want to stick with it. She did it for about two or three years and then she had an opportunity to go to France and run a modeling agency in France. I would've taken that job myself if I had that opportunity. She lived there ... Paul Edelstein: You couldn't have been a model? I think you could be a judge model. I think, if there were judge models, yeah, I think that you'd be the guy. When I think of a judge and we always joke like, "Oh, if you looked up judge of the dictionary, this is what you'd find." We think we'd find you. Charles Thomas: That's very flattering. What's the next question? Paul Edelstein: That's so you. You know what? One more question for you and then I'm going to let you go. Charles Thomas: I'm not leaving. Paul Edelstein: But I got a judge that wants to talk to me in about ... Charles Thomas: All right, there you go. Paul Edelstein: You're more fun. But let me ask, going back on your judicial career, if you could go back and change one thing and say, "You know what, I wish I could have done, been able to do this or done this differently," what would you do? I stumped you. Charles Thomas: You stumped me, because there wasn't anything that I didn't like to do. I don't think I'd change anything. I really wouldn't. I was delighted to get in that guardianship part because that became a very important part and also gave me independence, because the powers that be didn't really know what was going on in that part. So I was in complete control and I wouldn't change anything really. I was lucky. Everything sort of fell in place. Maybe if I go home and think about it and I'll find something which bothered me, but I can't think of anything that I would change. I really mean it. I have no complaints. They treated me well. Paul Edelstein: That's great, judge. And you know what I got to tell you, you've said it all day long about how lucky you were, but I got to tell you something, you really weren't the lucky one. The lucky one, were the hundreds, maybe thousands and thousands of people that came in front of you. Lawyers, litigants, law guardians, incapacitated people, everybody. And because I've been doing this a long time now and I come from a family of lawyers, so to know that there are guys like you out there that believe so deeply in what you are doing and what you did and are so passionate about it and go about it in such a respectable manner, that is what makes the field worthwhile. My father and my grandfather taught me that what we do, we, meaning you and me, was we're all in the same field, is a noble profession. And I think it takes a lot of hits and has black eyes at times, but it shouldn't. And it's guys like you, or judges like you, and I'm a little too friendly with you these days, but judges like you that really give it the respect that it deserves. So I really ... Let me say thank you and I appreciate it for everybody and for coming and talking to me. Charles Thomas: Well, thank you. That's very kind words. I appreciate it. It's nice to be recognized. Have you done your father? Paul Edelstein: Yeah. Well, yeah. Not quite like this, but I have and I'll do it again. I'll tell him, you gave me a directive. Charles Thomas: Your father has great stories. Has great stories. He's a real storyteller. Paul Edelstein: Well, I'm glad I got a chance to get some of yours. If I want tap into more of them, will I have permission to do so? Charles Thomas: Okay. Anyways, a pleasure to talk to you and thank you so much for interviewing me. It was fun. Thank you. Paul Edelstein: For me. Thanks, Judge. Charles Thomas: Okay, bye-Bye. Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here, in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/28826998

Pulling Back The Legal Curtain Episode 13 (Part 3): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County 11/15/2023

Pulling Back The Legal Curtain Episode 13 (Part 3): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kind of questions that get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. So we're back here with Judge Thomas. Now everybody knows is the passionate, happy, completely energized, never jaded judge who got to witness all of life's dramas play out in your courtroom. By the way, how many years in the guardianship bar did you sit? Charles Thomas: 10. I did 10 years in the guardianship part, and then I did 10 years in the JHO, monitoring the guardianship part. Paul Edelstein: A near 30 year career, a piece of it in the criminal court, a piece of it in the civil court where I normally practice, and a really long, lengthy piece in the guardianship court where I think you see most of life's real inner workings. Charles Thomas: I've done it all. The only thing I didn't do, I'm happy to say, was I never did contested matrimonials because those cases never end. They never end. They go on forever and ever and ever. Paul Edelstein: Yeah. You left that to my father, huh? Charles Thomas: Yeah. Your father has a fabulous temperament. I mean, he was cool. He was cool. I always liked your father. There was something really nice. He always looked super young to me. When I saw him around, I was young again because this guy, he never aged. He always was young, with a big smile on his face. And your father, you ought to do your father. He has some of the most fabulous stories in the world. I don't want to steal his thunder and take any of his stories, but he's got some good ones. Paul Edelstein: He does. But so I'm just going to ask you one question about my father. Since you're a judge, and you've been able to be judges of lawyers, whether they're high quality, not so high quality and all of this, you know my father, and you know me now a long time, so I just got to ask you while we have it on film, who was the better lawyer? My father or me? Charles Thomas: It's different type. Different type. You- Paul Edelstein: He's looking at you. Charles Thomas: You're not the same individual. Both of you are totally different, okay? You cannot make a comparison between the two of you guys. Your style is different than his. Totally. Paul Edelstein: You have a great second career in politics, Judge. We're going to- Charles Thomas: Okay. You're the ultimate. You are the ultimate lawyer. Your father, there was something very kind about him. I don't know. Let's go on. Let's move on from that. Okay? Paul Edelstein: That's fine. Now, I was trying to get you to say something about my dad. That's okay. I know I'm not going to get there. But here, let's ask you a different question because you mentioned before, and I've been in front of you so I know what it's like, and I want to ask you about your court staff. Because you'd mentioned one of your court staff, and I knew one of them, named Josephine. So I don't know if you remember. Let me tell you a little story about you. Let's see. I want you remember. So I think it's got to be about 15 years ago, maybe even longer, where I had occasion to be in your part. Now, it would be rare for me, and you know that I'm a civil lawyer. And you don't really love that stuff and you didn't sit in that part too long. And so I didn't come in front of you, but I happened to have one case where a child was injured really, really severely and had a guardian appointed, and it was his mother. And the case, it was a very complex case that went for a lot of money, but ultimately had to come in front of you to be approved because you were the judge supervising the guardianship. So we as civil lawyers couldn't get a case for guardian approved for settlement without a judge like you reviewing it. So I had to come in front of you. And I knew who you were, and I knew your reputation, and I happened to know your two sons, who we 'll talk about, who are very close friends. So I said, "Okay, I'm going to go in front of you." But I also knew that none of that's going to mean a thing, coming in front of you, that I better be ready and I better be prepared and I better not mess around. So I went in front of you on this very important case and I said, "Boy, this is real, very important, very complex." I'm not normally in the guardianship part, so I had to be extra prepared because for questions you were going to get asked. And I walked into your courtroom and there you are sitting on the bench. How tall are you? Charles Thomas: Six feet. Paul Edelstein: And when you're sitting on the bench, you know, you look a lot bigger. You know that, right? Charles Thomas: Okay. Paul Edelstein: You do. You got a deep voice, and you got a very regal manner about you. You even have that now, even now that you're off the bench. And I went in there and I got to tell you, I'm the son of a lawyer. I'm the grandson of a lawyer. And when I went in front of you, I was no baby lawyer. I'd been practicing long enough, I'd been around. But boy, when I got your part and saw you take the bench and start handling cases before mine, I was a little worried. A little intimidated. You're an intimidating guy. Anybody ever tell you that? Charles Thomas: Yes. I've heard that, but I don't believe I'm intimidating. I'm just trying to do my job, and I try to treat people... Everybody gets treated the same way. That's all. Paul Edelstein: And I could attest to that because I knew you knew who I was. You knew I was friends with your sons and this and that. I didn't get... There wasn't even recognition from you on the bench that you knew who I was or anything like that. Nothing. Not one thing. Zero. Do you remember that? Charles Thomas: Yeah, I do. I wasn't going to play favorites. I do my job. I hang my prejudices before I come out in the courtroom, and that's about it. That's the way I handled things. Paul Edelstein: Well, I'll tell you what. So I only had one experience in front of you, and it was that one. And I don't even know if you know this, I'll bet you you don't know it, but that particular case, which was a multimillion dollar case... This was a really big, really complex case. A lot at stake for a lot of people. Very important for this child and his mother and everybody that was involved. It was a really big deal. There must've been, I don't know, seven or eight people in your courtroom when I handled that case and everything, and it was multiple appearances in front of you. But I'll bet you what you don't know, behind the scenes, the case blew up. There were problems on the case that aren't that interesting for this call, but a problem arose and it got very, very heated and very ugly. And you know how that problem got solved? Your law clerk, Josephine, in the hallway, took all the lawyers that were fighting, I was one of them, everybody out in the hallway in a stairwell outside your courtroom, on a day where the case was supposed to get called. And had the case gotten called in front of you, there was going to be a very ugly, very public fight that really might've had some serious consequences to my client and to his mother and to other people. And I was prepared for that fight. Now, you didn't know it. At the time, the case hadn't been called. Your law clerk Josephine pulled us aside in the hallway, all the lawyers, really in the stairwell, and all of the problems got ironed out by her in the hallway. That surprise you? Charles Thomas: Not in the least. Paul Edelstein: Why would- Charles Thomas: Josephine made me look good. Josephine was the best. Josephine, one of the most brilliant lawyers I ever came across to my entire career. She was great. I was really fond of Josephine. She was a million percent loyal to me as she was brilliant. She knew how to handle people. Not everybody liked Josephine because she was all business all the time, but she knew her business and she knew it well. Unfortunately, she passed away about four or five, six years ago, too young. And we were very close. She became part of the family. I looked out. I hired her when I was elected, before I even took the bench. She was a referral to me from Judge Bambrick who was moving from the civil court to Supreme Court. And he didn't want to take her to Supreme Court. And I used to always remind him. His name was Gene Bambrick, nice guy. "Gene, you did me the biggest favor and you made the biggest mistake of your life when you got rid of Josephine. But you did me the biggest favor." She was good. I was lucky. I had a wonderful staff. My secretary Rita, she's still over there right now. She's with another judge. And good. How about the court personnel I had? I lucked out with the clerks. I had the best clerks. I had John Barry in criminal court, and Linda O'Connor. Well, the main names, they were good, Pam. They knew what they were doing and they stuck with me. What could I say? I lucked out. I was delighted. It was a wonderful working environment that I had with these people. Paul Edelstein: Let me ask you a question. Most people, I think a lot of lawyers, and certainly clients and lay people, when they go to court, they think, "Well, it's the judge, and the judge does everything." And it's the judge and the judge and the judge. Now, I know a little differently because my father was a lawyer for a long time and his father was a lawyer for a long time. So I was kind of taught a little differently, that it's not just the judge. And that sounds kind of like what you're telling me. How important is it for you, in your role, to have all these people around you? Charles Thomas: I couldn't do it without them. A good law secretary, it makes your day. She relieved me of a lot of the nonsense that goes on. She know how to screen people, and she would conference cases and come through. By the time they got to me, it was just all I had to do was to rubber stamp it sometimes. So the court personnel, they can make or break the judge, by the way. You know? If you don't get along with your staff, you could have trouble. You could have trouble. I know a particular situation of a judge who couldn't get along with his staff and they didn't like him. I'm not going to mention his name. That wouldn't be fair. They knew his character. One day, one of the... His clerk took a quarter and crazy glued it to the floor in front of the courtroom. And so he walked out, he wanted to pick it up. He couldn't do it. And they were... He- Paul Edelstein: It was like, wait minute, and he glued the quarter to the floor? Charles Thomas: Yeah. Crazy glue. Paul Edelstein: Okay. All right. Charles Thomas: And he couldn't get it up. And so they were laughing. This was like a big joke. Yeah. They fooled around with him. Paul Edelstein: Funny. Let me ask a different question about who you rely on now. So I know and just how much you guys rely on your court clerk, your court staff. I mean, it's integral for any judge. We just know this. If you've been practicing, you know this now. But you know what? In the news in the last year or so, there's been a lot of news about a Supreme Court justice Judge Thomas and his wife. You've seen any of this stuff? Charles Thomas: Yeah, sure. I've been following it. Paul Edelstein: Here's a question. And I knew your lovely wife and how much you relied on her. You even said it when we were first talking earlier today, how she was sort of an inspiration for you to get on the bench. So there were times when you went home... And by the way, a hundred percent, my wife knows every case that I have, every point. There's not even a question. And I run questions by her all the time. "What do you think about this? What do you think about this?" And she's an amazing sounding board, very influential on the decisions I make. Do judges do the same thing? Charles Thomas: I did not share my experiences with my wife. She wasn't interested, really. I mean, maybe she was, but I didn't push it. So we talked about other things, for us. I didn't bring it home with me, if that's what you want to know. That was a good thing about being a judge, which was not a good thing about being a lawyer. When I was a lawyer, I brought it home. I mean, I practiced law for 22 years, whatever came through the door. And in fact, I certainly talked it up. But when you walked out of the courtroom at night, you shut the door, I'm on a different plane. I'm in a different dimension. Paul Edelstein: I'm impressed that you were able to do that. I think that's hard to do. Charles Thomas: As a lawyer, it was hard to do. As a lawyer, you wake up in the middle of the night writing notes to yourself with thoughts, things that you should have done or didn't do, whatever. It's always a struggle. But the judge, it's not that at all. You close the door, you're gone. Paul Edelstein: So you slept like a baby when you were a judge? Charles Thomas: Absolutely. I certainly did. Paul Edelstein: Maybe that had a lot to do with the spouse that you had. That's what I'm thinking. Charles Thomas: Well, I know your spouse and she's a wonderful woman, and your situation, it works very well. My wife, we didn't talk about it. If there was something really interesting, I would mention it, but that was not something where she was waiting for me to relate my day. Paul Edelstein: I'm impressed. I'm impressed. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here, in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/28654193

Pulling Back The Legal Curtain Episode 13 (Part 2): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County 11/07/2023

Pulling Back The Legal Curtain Episode 13 (Part 2): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County Paul Edelstein: Hello. Welcome to pulling back the legal curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" It seems like every day we have these kind of questions and get asked them. So, on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. Back with Judge Thomas. Judge Thomas, you're now sitting in the Bronx Supreme Court. You told us all about that in part one. Well, and Criminal Court at that, right? Charles Thomas: Criminal court, yeah. Paul Edelstein: All right. How long did you sit in Criminal Court in the Bronx? Charles Thomas: I was there for two years. Paul Edelstein: After that, where did you go? Charles Thomas: Before I go to that, I'd like to tell you an interesting story from the Criminal Court, okay? A couple of years ago, I went to a fundraiser for retired basketball players from the NBA and [inaudible 00:01:31] and whatever. I forgot the organization that ran it, but it was a wonderful little event to see all these old time guys who I knew by name only. There was a fellow sitting in the corner all by himself, and I asked who was this guy, and they told me his name is Freddie Crawford. He used to play for the Knicks. Now, I knew that Freddie Crawford was the guy from the Bronx, and I was from the Bronx. Anyway, he was all alone. I went over there, and I sat down, and we started to chat. I said, "Well, tell me something, Fred. Who was the best ball player you ever played against in the NBA?" He said, "No question about it, Kareem. Kareem was absolutely the best." I said, "Well, how about in high school?" I knew he went to Gompers High School. He said, "I don't know." He says, "High school?" He says, "I don't remember anybody from high school." I said, "Well, I'll tell you who I thought was the best player I ever saw in high school. It was Herman Taylor from Commerce High School." He says, "Herman Taylor?" He says, "He's a good friend of mine." I said, "Well, whatever happened to him?" He says, "Well, he went to LIU for a while. He was a Harlem Globetrotter. He's known as Honey Taylor." Oh, boy, very impressive. I said, "Okay. Now, that's your Herman Taylor. I'll tell you my Herman Taylor." Now, we're back to reality. I'm sitting in the Bronx, and it's in arraignments, and they call out a guy from the pen, and he comes out, Herman Taylor. I look up, and I have a whole audience full of people, and they're all sleeping. They're not paying attention. I said, "Herman Taylor." I said, "Are you Herman Taylor that used to play for Commerce High School?" He said, "Yes." He looks, and now everybody's attention. I have them all listening now. I said, "Wow." I said, "Are you the Herman Taylor who was really one of the finest ball players of his era?" He looked out. He didn't answer. He mumbled. I said, "So this is what it's come to, Herman? This is what it's come to?" I was getting sentimental about the whole thing because, hey, this was a guy who I really looked up to. Anyway, the attorney says, [inaudible 00:03:54]. He comes up. I said to the attorney, "You know who your client is?" I said, "He was spectacular." He says, "Yeah, he may have been a good basketball player, but he's a lousy gambler." So then I knew it was a gambling... He was probably picked up on a crap game. We're not talking about a murder case here, okay? So I said, "Okay," and we took care of the case. I don't even remember the disposition at all, all right? Now, let's go back to Freddie Crawford. Then, years later, I told him the story. We're laughing about it. A couple of weeks later, my phone rings at home. "Hello, George Thomas?" "Yes. Who is this?" "This is Herman Taylor." "Herman Taylor? You're calling?" "Yeah. Oh, Freddie told me the story." He said, "I remember that so well." He says, "Oh, how are you, Judge? How are you doing? How's your family? Tell me about yourself." He's interested in me. I couldn't believe it. I think he's still around. He was a hell of a ball player. That's just a side story, but- Paul Edelstein: It's a good one. Charles Thomas: To me, that was a perk of the job. It was something really interesting. Paul Edelstein: That sounds like it. Any other celebrities come in front of you? That was like a celebrity to you. Charles Thomas: Yeah. Well, I had Al Sharpton on an appeal situation. That wasn't much, although Al Sharpton can be very funny. Al Sharpton is a close relative to a judge on the bench right now, and he was at our swearing-in ceremony. He came in, he said, "Ladies and gentlemen, this is the first time I ever went into a courthouse through the front door." I thought that was pretty amusing. You said other celebrities? An original rapper. "These are the breaks." You know that guy that said, "These are the breaks?" Whoever that guy was. Do you know who that was? Paul Edelstein: I got to look it up. Charles Thomas: "Pick them up, pick them up, these are the..." Anyway, he's been around quite a while. Paul Edelstein: You're going to sing the song? Lovely. You're going to sing it? You could actually sing it? Charles Thomas: That's how I know the guy. Paul Edelstein: All right. Charles Thomas: No. Otherwise, I can't think of any other celebrities offhand. They always have too many celebrities in Queens. Paul Edelstein: Well, I know that's where you sat for a long time, right? Is that the progression? Charles Thomas: Yeah. Oh, yeah, that was it. After the Bronx, then I went to Criminal Court in Queens for a couple of years. I was a Civil Court judge at the time, and then I was Acting Supreme for a while, and then I went to Supreme, and when I was in Supreme, I did Criminal for about six or seven years, and then I was doing both Criminal and Civil, which I thought was really the best way to go. I loved that idea, to judge it- Paul Edelstein: Why? Charles Thomas: Oh, you get the variety. You really get the variety, and every day's exciting. You don't know what it's going to be. The case comes in it. It made life interesting. Paul Edelstein: It's funny that you say that like you said it because it's clear that you loved your job and you say, "Wow, it's very exciting. Every day was interesting." But I've been doing this for 29 years, and most of the time, when I go in front of judges, not every judge, but most of the judges I go in front of, I don't get the idea that they think it's very exciting and very interesting. You know what I mean? Charles Thomas: I know what you mean, especially when you do the same thing every single day. Frankly, I was getting bored hearing my own voice sometimes. When I was picking juries, I only wanted to do it once with one panel. I didn't want to go through a couple panels to hear my voice again. But then I got involved in the guardianship world, Article 81, and that was extremely rewarding because you really can make a difference in that part. Paul Edelstein: So you and I both know what that is, obviously. But maybe somebody other than my mom who may listen to this doesn't know what that is. Why don't you explain that? Charles Thomas: We have a guardianship law which provides for people who have functional limitations, and if they can't perform the basic functions of everyday living, somebody can come in and step in and petition to be their guardian to make these decisions, either financial or personal. They come to court, they make an application, they prove their case. They prove that the person, we call them an AIP, an allegedly incapacitated person, does not have the capacity to function correctly. Maybe they were being exploited. Maybe there's a mental issue. There are a lot of situations why you would get one and be a guardian, and you make that determination. You send out an investigator, a court evaluator, come back with a report, you have a hearing on the matter, and then you make a determination whether or not the person needs the guardian, number one, or, number two, who should be the guardian. Paul Edelstein: Oh, that's pretty cool stuff. Let me see if I could summarize it. So, essentially, when you became the judge in this guardianship part, people are coming to you and they're saying, "Hey, Judge Thomas, we think we've got someone here that needs representation that can't function on their own and needs somebody in there." Oftentimes, there's someone on the other side saying, "Well, maybe not," right? You're the one that decides, hey, whether this person should or shouldn't have a guardian appointed, and oftentimes there's a fight over that, right? Charles Thomas: Absolutely. Usually, in the family situation, it's very common as to who loves mama the most which child wants to take care of mama, which one doesn't, things of that nature. You're dealing with the human condition, the very basic human condition, which reminds me, if you'd like to hear an interesting story, I got one for you. Paul Edelstein: That's what I'm here for. That's what I'm [inaudible 00:09:50]. Charles Thomas: Okay. This is a case that came up in the guardianship world early on in my career. It made an impression that I've never forgot this matter. Just picture this. It came to me... A very rich Chinese woman died with a lot of jewelry, and she had a guardian, and she also had a lot of relatives, and she did not have a will. She had two groups of relatives. One group of relatives said they wanted her jewelry. The other group said, "We don't want her jewelry." She wanted to have her jewelry buried with her, and she was being held... They weren't burying her until this was settled. So this is an odd situation. Bury your jewelry. Okay. So the first thing I did was I did a little research. I Googled Chinese burial customs, and it turned out that it is a custom in certain situations that people wanted their jewelry buried with them. The word was if they liked their jewelry. That was the word. If they liked their jewelry. I then asked my administrative judge, who happened to be Chinese, Randy Yang, a terrific guy. He became PGA of the Appellate Division, Second Department. I said, "Randy, what do you think?" He said, "Well," he said, "If they liked their jewelry..." He said the same words. "If they liked their jewelry, it happens. They ought do that." Okay. So now we have a hearing, and we have the guy on the stand, the guardian on the stand. He doesn't know what to do. I said to him, "Well, suppose you take a picture of the jewelry and put it in." "Oh, no, no, that won't work at all." I said, "Well, you know what's going to happen? If you put those jewels in the coffin and bury them, when you walk out of that cemetery, someone's going to come back with a shovel and come dig it out." He said, "If that happens, bad things will happen to them." I said, "Well, that's not good enough for me because if I let that happen, bad things will happen to me." So what do I do? What do I do? Well, you're the lawyer. What do you think I did? Paul Edelstein: Oh, boy, you're putting me on the spot? Charles Thomas: Yeah. Paul Edelstein: I don't know. Replica jewelry? I don't know. Charles Thomas: I thought of that. I thought of that. I even mentioned that. No, they didn't want that. I'll tell you what I did. I said to the group that wanted the jewelry, that wanted to bury them, I said, "You want to bury the jewelry? Okay, but you're all part of the estate." "You're right." There was no will. They're all beneficiaries. They're all distributees, I should say. I said, "Well, you buy the jewelry. You buy the jewelry, give me the money, and then you can take the jewelry and do anything you want with it. But now we still have the estate." That's how we settled it out. Paul Edelstein: Did they go for that? Did they- Charles Thomas: They went for it, absolutely. They went for it. I didn't go to the funeral. I should have lost jurisdiction because when somebody dies, it goes to the Surrogate's Court, not the Supreme Court, but I just was winding down the guardianship. So I don't know how it eventually ended up, but I know that was the solution, and they seemed to be happy with it. Paul Edelstein: That's a great story, a different take on the old Solomon-esque- Charles Thomas: Yeah. Yeah. Paul Edelstein: ... allegory with the baby, right? Wow. Charles Thomas: Exactly. Yeah, exactly. Paul Edelstein: That's pretty interesting. I don't think I've ever heard anything quite like that. Charles Thomas: I never saw one like that before myself. It was fascinating. Well, there were a lot of little stories like that. Do you want stories? I'll give you a story. Paul Edelstein: Yes, let's hear stories. Charles Thomas: All right. We had an old lady who lived in a house with a big fence around it, and she had a daughter that lived in the house with her and a daughter that lived down the street. So we had an in daughter and out daughter. The in daughter and the out daughter were fighting all the time as to who loves mama the most, who's going to do this, who's going to do that. The in daughter, by the way, was the guardian, and she was not letting her sister, it was her sister, come and visit. So, one day, when the in was not around, the out daughter came along, jumped the fence, went in, and saw her mother and had to break a window to get in. The other one came back, called the police, and the police came and she told them a story and they arrested the sister for breaking into the house. They took her to the police station. They held her overnight and let her out in the morning. She came back to the house, and she found that mama had died in the night. So what did she do? The first thing she did, took a camera and took pictures of mama in the bed with her bed sores, horrible-looking pictures. Now, it's all in front of me right now, a [inaudible 00:15:49] story in any event. But now we have a hearing about the whole thing. She was fighting about it with the sister. You know what? I don't even remember what they were fighting about anymore, but they were fighting. It was in front of me, and I had to wrap up the whole thing and terminate the guardianship. We had a hearing, and a cop came in to testify that he had arrested the out sister. The cop came in wearing a pair of shorts. I had never seen that before in a courtroom, the cop comes in in shorts. He gets on the stand, and he tells a story. He made it sound like the sister from outside was terrible and the one on the inside was right, and as he walked by... When the testimony was over, the sister was sitting in the courtroom, the out sister. She looked up and says to him, "You lying son of a bitch." I had never heard that in a courtroom either, frankly, between people. Okay. They walked out, and I found... Oh, now I remember why I was there. It was a contempt citation against the in sister for not letting the out sister visit. So I was holding her in contempt because I had given her the right to visit, and this sister number in, the in sister, I gave her a week in jail as a contempt, which on the weekend I knew she'd only do two or three days. Meanwhile, the out sister went out into the hall and had an epileptic fit, and they had to call an ambulance. It was a lot of drama. That was just an exciting day. Paul Edelstein: It sounds like, in that position, the position you were in in that guardianship part for all those years, that you got to see the family dramas really played out in a public fashion. Every one of us has these family dramas we all go through. I know you've had your own and you know some of mine, but you see it really just splayed out in court, huh? Charles Thomas: Absolutely. The human condition laid out in front of you, which makes it so interesting. It really does. To my mind, that was much more interesting than the negligence cases, than the guy saying, "It hurts. Give me money." Paul Edelstein: How in the world does that not affect your demeanor? You are the same just happy, open-minded, energetic, passionate... I see judges, I say, "Wow, this judge, he's a little jaded and he's tired of doing this." Your demeanor has never changed, even now, all these years later, despite hearing all those stories all that time. That's pretty amazing Charles Thomas: Nature of the beast. What can I tell you? I love the job, and it's the best job in the world. Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/28547810

Pulling Back The Legal Curtain Episode 13 (Part 1): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County 10/30/2023

Pulling Back The Legal Curtain Episode 13 (Part 1): Sit Down With Justice Charles Thomas, Former Justice of the Supreme Court Queens County Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner, Glenn Faegenburg, with me most of the time. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. It seems like every day we have these kind of questions and get asked them, so on this podcast we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. So here we are with Judge Charles Thomas, clearly my favorite judge that I've ever been in front of, and it's a pleasure to have you on here. You have not only been a judge for me, but a mentor for me, a client of mine, a friend, and you were like a colleague of my father's and a student with my father, were you not? Charles Thomas: Absolutely. He was a couple of years behind me in law school, but I remember him very, very well. Paul Edelstein: Amazing. So you couldn't be a more perfect judicial person for me to ask questions of I think, right? Charles Thomas: I'm here. I'm here. I'm here to answer. Paul Edelstein: There you go. So before we get the very rare chance of an attorney questioning a judge... By the way, do judges like being questioned by attorneys? Charles Thomas: Probably not, but you're a friend as well. I have no problems listening to you, so go on. Paul Edelstein: Why don't we start by... Because some people are going to listen to this, hopefully more than just our friends and relatives, and they don't know who you are. Why don't you tell us? I know you went to law school with my father way back when, Brooklyn Law, but why don't you take us through some of your history? Charles Thomas: My history? Well, I was born in the Bronx, went to Bronx Science, went to Brooklyn Law School, Brooklyn College, went into the Army, worked as an attorney for 22 years in my own practice, and then one day I said to myself it's time to do something different, and I made moves to get a judgeship. I'll tell you how that worked. I walked over to my district leader, I met him on the street, I introduced myself, and I said... I introduced myself and I said, "You know what? I would like to be a judge." He says, "You know, that's great, because I can get more work out of you than somebody that comes along and tells me their interested in the issues of the day." We were honest with each other. I got involved in politics. I became the president of the club and chairman of the board of the club, and I paid my dues, and when I would complain to my district leader, "What's going on, what's going on," he would always remind me, "Listen, Harry Truman started this way, so don't worry about it. You'll be okay." One thing led to another. I finally was able to get the designation, and I ran in a very hotly contested primary in Rockaway, where I live, and I won by a grand total of 111 votes, and here I am 30 some odd years later, 40 years later. We did it, so it's been a great experience. Paul Edelstein: How many years did you sit on the bench? Charles Thomas: 28 years on the bench, and then another 10 years as a judicial hearing officer. I would still be a judicial hearing officer if it wasn't for COVID, which did away with the program. Paul Edelstein: Yeah. I personally think you should still be a judge, not a judicial- Charles Thomas: Well, the Constitution said I'm too old. They retired me. Paul Edelstein: You know, it's interesting, so let's talk about this for a second. The Constitution said you were too old to be judge, even though it's clear that you're capable of doing it, but apparently it has no such restrictions for who could be the president of the United States? Charles Thomas: Right, and it doesn't seem to stop federal courts from going until they drop, but in New York State it's 76. Actually, I think in certain states it's probably even less. I'm grateful for the opportunity to have become a judicial hearing officer in light of the situation. I enjoyed that and they treated me very well. I have no complaints about that. I would like to be a judge, but, hey, we all do get old. Paul Edelstein: Let's really get back to where you were an attorney and you made that jump from attorney to judge. You just kind of went through that, said, "Oh, I was an attorney for 22 years and then I just decided I wanted to be a judge." But wait a minute, I've been an attorney for 29 years, I never had that thought when I was walking on the streets, let me just change and become a judge. What prompted you to do that? Charles Thomas: Well, I guess my wife was pretty influential in that. Actually when I first thought of practicing law I went to small claims court with my wife as an observer, and she loved the idea of being in the courtroom and the majesty of the dark wood benches. It was something very rich and exciting to her. She said, "I want to see you up there one day." I said, "Nah, we got time for that," and we did have time for that. But little by little I'm out there, I was practicing law, and frankly I got a little bit of a burnout. I was getting tired of doing the same thing all of the time. I wanted to change. To my mind being a judge was the highest thing you could be as a lawyer, the best job in the world, so it gave me something to strive for, and I strived. Paul Edelstein: You didn't just strive, you thrived. I mean maybe some of the people watching this don't know your reputation, but I do. I mean you're stellar. Let me ask you a question. So first day on the job, so you're a judge, you get sworn in, because I've seen that. That's pretty cool, when your family comes, and it's a really regal and formal process, and really a nice thing to participate in. I've been lucky to be invited to a lot of that. Not yours. I think I was like, I don't know, maybe in college when you were sworn in. But what was your first day like as a judge? What's that like, day one? Charles Thomas: Day one was they sent me to the Bronx criminal court, an arraignment in criminal court. I knew nothing about it really. I had practiced a little bit of criminal law, but not a hell of a lot. They put me on the bench with a seasoned old-timer who was up there. I watched what he was doing, and after about 10 minutes of watching him I said, "You know, I could do this. You can go in the back." He went in the back and read the newspaper. And it just flowed, it just flowed. It was funny that the first case I really had, an arraignment, was a criminal case and the attorney who came out was an attorney from Queens that I knew who he was. I was surprised to see an attorney from Queens in the Bronx. It was a big drug case, and I didn't know what the numbers were when you ask for bail. I had no idea. I wasn't given really any specific instructions. But in the criminal court you get a back on a pleading, so another judge had already written on it, so I had a guideline of what had been there before. The pleading came out and it showed the judge had given $500 on bail. So when it came time for me I put down... I said $500, and the district attorney, he went nuts. "How could you do that, judge? This is a monster drug case. This is terrible," blah, blah, blah, blah, blah. I said, "Oh, boy, this is a hell of a way to start the business." So I went home, I didn't sleep that night, came back the next morning and I spoke to my administrating judge, a fellow named Larry Pinetti, who was a wonderful guy, and he said, "Look, I spoke to the DA." The DA at the time was Mario Barola, and I explained the situation, and Mario said, "Don't worry about it. Everything is going to be okay." It turned out it was okay, because all of these drugs that supposedly the defendant had wasn't really drugs. It was just talcum powder. So I mean that was an interesting way to start my career. So that was my first day. Paul Edelstein: What year was that? Charles Thomas: 1983. 1983. Paul Edelstein: See, I was in high school. Charles Thomas: Yeah. I was elected in '82 in a very, very hard fought competitive race. I had a primary. That was my problem. It wasn't a [inaudible 00:09:47], and I had a lot of opposition. I was lucky though in my election, because I had three opponents, and one opponent who could have been really very much the opposition was collecting signatures to get on the ballot, and it turns out he had a friend of mine collecting signatures. I go, "How can you do this to me? You're collecting signatures against me and you've known me all these years." He said, 'Don't worry, because I'm only collecting where people don't know me and they don't know you," whatever that means. It turns out he went to the wrong district to collect signatures, and he never got on the ballot thankfully. Hey, that's fate. Did I make myself clear on that? Paul Edelstein: Yeah, very clear. So whatever became of this... This was your chief opponent, who couldn't even get his signatures right on the ballot. Whatever happened to him? Charles Thomas: I never knew. I never saw him again. I never saw him in court. I never saw him. Paul Edelstein: Sounds like it was a good idea, that he'd not be qualified for the bench. Charles Thomas: Well, actually he had a very interesting slogan. I had the Democratic line, but he had the conservative line, the liberal line, and the Republican line, and his slogan was, "Three out of four, let's make it unanimous." That was a little scary in a way, but thankfully my district was very much a Democratic district and I won by a big deal, 111 votes, but we did it. After that I was elected several other times. It was never a problem. Paul Edelstein: Right. That's because now you're on the bench and you demonstrate that you have skills. Charles Thomas: Yeah. Paul Edelstein: What was that like, that first election? Was it like election night like we see now on TV? How did you know you won? How did that work? Charles Thomas: It was just like you see on TV. You're sitting in a room and they're calling in numbers, and your club is listening to the numbers in the beginning. You're getting results. They got a board in the club where it shows you who's who and what's what. Actually I had to go to court, because they tried to knock me off once I even got my plurality of 111 votes. Yeah, it was like TV. That was the only time it ever happened that way. Otherwise it was very much perfunctory, matter of fact, because it is overwhelmingly a Democratic area, and you wait your turn, and if you don't get caught with your pants down you do okay. Paul Edelstein: Perfect. You know, getting caught with your pants down, that's a perfect segue into where we're going to go. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we tried to put this together so it would be entertaining and interesting and hopefully educational. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/28432997

Pulling Back The Legal Curtain Episode 12 (Part 2): Civil Damages Explained 08/10/2023

Pulling Back The Legal Curtain Episode 12 (Part 2): Civil Damages Explained Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Fagenberg with me most of the time. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. It seems like every day we have these kinds of questions and get asked them. So, on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. Arthur, Hey, you didn't run away. Arthur Blyakher: Good to see you again, Paul. Paul Edelstein: Hey, nice. You're right next door to me. That's good. I love that you come to the office. Isn't it cool coming to an office? Arthur Blyakher: I missed it so much. Those two years were brutal. Paul Edelstein: Coming to the office. They should make a movie, right? Coming to America and it should be Coming to the Office. Arthur Blyakher: I shouldn't say that. When my wife sees that... It wasn't brutal. Being at home with the wife of kids is great. Paul Edelstein: Right. You love it here, right?. It's just fun being here, and you know what? There is an organic and generative aspect, certainly for lawyers, maybe other businesses, but I'm only qualified to do this. Being in the office is a big component so we can go back and forth. No one better at going back and forth than you, Mr. Obstructionist. Mr. Contrary, Mr. Get-in-the-way. Arthur Blyakher: I like playing devil's advocate. Paul Edelstein: See, that's such a nice way of saying it about you. I don't even really use that kind of term when I talk about you to Glenn, but okay. So, devil's advocate. So, we talked about all these different measures of damages in this part one of the damages podcasts, I guess we can call this that, but there's another element of damages. It's called punitive damages, right? Arthur Blyakher: Yeah. Paul Edelstein: You know what? There's another term for punitive damages. You know what it is? I want to put you right in the spot. Arthur Blyakher: I don't. Paul Edelstein: You don't? Well, it's good. It's going to lead you right to the definition. So, punitive damages are also referred to in the legal world as exemplary damages too. Arthur Blyakher: [inaudible 00:02:16]. Paul Edelstein: Yeah, so you knew that, right? Punitive or exemplary. That leads me right into the definition. So, what in the world are punitive damages, and why do my children think that everything I'm doing to them is punitive in nature? Arthur Blyakher: Well, so I want to point out, like you said, what I'm doing. Punitive damages focuses on what the tort fees or the defendant in our cases, what they did as opposed to compensatory damages where we measure the harm done to the victim. Paul Edelstein: Oh, that's good. But you're going to have to talk to me like I'm my 10th grader. Because you got it right, I get it. But... Arthur Blyakher: Compensatory damages that we discussed in the prior episode, we focus on the pain, the suffering, the losses that the victim suffered, and we don't really evaluate what was the cause of those. Paul Edelstein: Right, the conduct. Right. Arthur Blyakher: That's irrelevant for measuring the damages from a compensatory damages lens. Punitive damages, you have to focus on the conduct of the wrongdoer, what did they do, and should they be punished for it? Paul Edelstein: Punished or made an example of, and I think that's where exemplary comes from, that term. I don't know, maybe we'd have to ask the Ivy League partner over there. Arthur Blyakher: That would make sense, right? Paul Edelstein: We'll ask Glenn. But it does make sense, right? It is aimed towards punishment, towards making an example of the person that did the conduct, right, as opposed to the victim of the conduct. It's geared towards having a jury evaluate what happened, the conduct that happened, and if they feel it rises to a certain level of malice, which is really another words of bad [foreign language 00:04:05]. I speak some Spanish, like my children. So, bad, badness. If it rises to a level of badness, that maybe warrants punishment, and we're making an example of, and the reason the law has that measure of damages, is as a dissuasion effect. In other words, we want to be able to punish somebody if their conduct is really bad, so that others get the message that, "Hey, not a good idea to do this kind of thing. That could be a real problem." So let me ask you a question. So, in our standard situation, if somebody just is driving, runs a red light, hits a client, really hurts them bad, can I sue for punitive damages in that very narrow set of circumstances? What would you say? Arthur Blyakher: No. [inaudible 00:04:52]. Paul Edelstein: Why not? I want to punish this guy. He's terrible, he ran the light. I hate... Can you believe this? Arthur Blyakher: Well, legally there's a difference legally and morally. Some people run red lights by accident or- Paul Edelstein: Let's say it's just negligence. See, don't start fighting me. Just an accident. The guy, he went through yellow- Arthur Blyakher: It's an accident, he went through a yellow and it turned red. That's not such a morally reprehensible act that this person needs to be put in the middle of this town square and made an example of, like you said. Paul Edelstein: Exactly. I got it. So now, I want you to hold onto that auto example. Because I'm going to give you another auto example and I know you know what it is, because we just have this case. But I want to wait to give you that example, keep everybody suspense building, to hear the answer to that question, okay? I want to just take a brief second to ask you if you know... Because I want to tell you these stories, because these are great examples. Two of the biggest United States examples of punitive damage to explain where they come from and why they're important. The two cases that stick out. Do you know the two that stick out? Arthur Blyakher: You're taking me back to first year of law school, the exploding car case. Paul Edelstein: Exactly. And what's the other one? Arthur Blyakher: McDonald's. Paul Edelstein: Oh my god. Did we even prepare for this? Did you and I talk about this? Arthur Blyakher: We did not. Paul Edelstein: Nobody would believe that. Arthur Blyakher: You're talking about my two favorite things, cars and food. Paul Edelstein: Two favorite things, right. So, let's talk about that. So, first you have the exploding... Now, it's an unbelievable situation. It's the exploding Ford Pinto cases in the 1970s. So, here's what happens, right? So in the 1970s, Lee Iacocca, he's probably like your hero, Lee Iacocca. You know what I mean? He's God, right? So many people, Lee Iacocca. Well, this is what Lee Iacocca was doing back then. He was president of the Ford Car Company and all of a sudden these little Japanese cars are flooding the market and they're doing great, and Volkswagen, they're like killing it, right? They're killing it. So, Lee Iacocca goes to his company Ford and says, "Listen, we're going to compete with these guys, and so we're going to build a car." And he says, "This car is going to weigh less than 2000 pounds," I think there was a weight restriction, "and it's going to cost less than 2000 bucks." 1970, right? "And we're going to make it that way." So, they try to make this Ford Pinto so they could compete with these other cars, and they make it, but it was having a little problem. Remember what that problem was? Arthur Blyakher: I believe the gas tank would catch fire and explode, right? Paul Edelstein: Yeah, see? Now you know we didn't prepare, because you were thinking. You got it right. What happened was, and Ford knew it, when this Ford Pinto would get hit in the rear at like 25 miles an hour, so not something outrageous, the gas tanks would've a tendency to crack and leak gas and then get a spark with light, and this fricking Ford Pinto would explode into a fireball. So, they're building this thing and they're like, "Wow, that's not good." But there's these engineers at Ford and they figured out like, "Hey, we could fix this with a five..." There were two fixes to it. One was like a bladder on the gas tank, and the other one was, I don't know, some kind of membrane, some other thing to separate it, whatever. It don't even matter. Either way, both of these design fixes, and these are product liability cases, of which we have a very seminal one right now against Harley Davidson. Similar aspect here, right? These two design fixes would've cost like seven bucks. I think one was five bucks, one was two, right? But people at Ford, what'd they decide to do? Did they decide to do that or what? Arthur Blyakher: They decided to save a buck at the expense of people's safety. Paul Edelstein: That's right. They didn't care because safety... Lee Iaccoca's famous phrase back then was, "Safety doesn't sell." He was like, "This car is going to be 2000 bucks, not a dime more." They put these cars out there, and guess what? People were getting fried alive, horrible. So, some plaintiff lawyer, kind of like you, by the way, it's guys like you, young guys. I'm like an old guy now, right? Young guys, aggressive guys decided, "Wait a minute, that doesn't sound right." So Ford knew people were getting hurt, people were suing, they were settling cases, they didn't care. It was the cost of doing business. They're like, "Listen, whatever. What's the difference? This is what we're going to do." Except one family decided that they weren't going to take that, and they went all the way. The more they dug in, the more evidence they found that Ford knew about this, and was just sort of calculating it into the cost of doing business. So in other words, "If we recall all these Fords, put the $7 part in there, it's going to cost us X. Instead, we could just settle some of these cases, defend some of these cases, whatever, who cares, it's going to cost us Y." That's what they did. That case went to trial and punitive damages were a rare thing in the United States up until that case. It existed. Punitive damages have existed in the United States all the way back to the 1700s. It's been a measure of damages in United States court cases, but never until Ford did it become really in the public life. That jury compensated this family. I don't remember the numbers, but it was a horrible, horrible injury. Then, on top of that, they were like, "Ford, you're going to pay 200 million," or some really, really big number, "to compensate..." It wasn't compensation actually, "to punish you for your horrible, horrible conduct." Even you with your, let's just say modestly conservative attitude that you bring to the table, I think would agree that that's appropriate. Would you not? Arthur Blyakher: Absolutely. Paul Edelstein: Love it. See, this is where we align, and we don't align on everything, but we align on that. So, now let's go to the other unbelievably, incredibly interesting case, and then we're going to get to your case, which I also find very interesting, because you taught me something, didn't even know, and I bet you most lawyers don't know what you learned and talked. Arthur Blyakher: I didn't know before this case either. Paul Edelstein: See, I'm building the suspense. People are going to continue to watch this podcast. It won't just be Maritza and Megan, it'll be three others. So, in this other coffee case, everyone heard about the McDonald's coffee case. Why don't you give us the quick rendition of the McDonald's coffee case? Then I'm going to tell you what really happened. Arthur Blyakher: So a woman, I believe this was in the eighties, if I'm not mistaken, she was going through a drive-through and she bought a cup of coffee. She took the lid off to put sugar or milk, whatever it was and her coffee, and she spill the coffee on her lap. She suffered burns. Then she sued McDonald's because McDonald's did not warn her that the coffee was as hot as it was. Paul Edelstein: Just tell us the end and what normal people think about the case. Arthur Blyakher: At the end, the jury awarded- Paul Edelstein: Millions of dollars, right? Arthur Blyakher: Millions of dollars in compensation and then millions more, I believe $12 million in punitive damages because it came out that McDonald's knew. Paul Edelstein: I don't want you to tell me that part. Everybody here's about the coffee case, right? They're like, "Wait a minute." You got to give the negative side. I'm looking for you to give the devil's advocate. Everybody hates the case. Why do we hear about that case all the time? Because people come in and say, "Oh my God, someone got millions of dollars for spilling hot coffee on themselves. I'm outraged, and the system's broken and it's terrible." That's what you hear, right? Don't you hear that? Arthur Blyakher: When I first heard about this case, my attitude was- Paul Edelstein: Same way. Arthur Blyakher: Same way. "You spilled some coffee, you need a sign to tell you that coffee is hot?" Paul Edelstein: Right. Okay, so here's what really happened in this case. So, this lady was 79 years old. It happened in 1992. Close, it's a little bit low, right? You were like, what? Seven years old at that time? Arthur Blyakher: Three. Paul Edelstein: Three. Oh my god, you were three years old. All right, so when Arthur was three, this 79 year old lady went to McDonald's, got a cup of coffee, put it in her lap in her car, and the lid wasn't on tight and it spilled in her lap and it burned through her jacket, her pants, and her undergarments, and it actually seared her labia to the point where she had to have surgeries and it was horribly painful and just incredibly bad. She got a lawyer and said, "Wait a minute, this shouldn't happen. I shouldn't get third degree burns through all my clothes from a cup of coffee." She actually initially asked McDonald's for $20,000 in medical bills. That's all she wanted. And you know what McDonald's said? Tell me what McDonald's said. Arthur Blyakher: Sure. Here's a check. Paul Edelstein: No, it's actually the opposite. They said, "Go F yourself. No way, goodbye. We're not paying, you're done." That's what happened. So, she brings the lawsuit and says, "Well, all right, you're not going to pay me." She goes to trial. Throughout the course of the lawsuit, those lawyers, young lawyer just like you, that's why one young civil lawyer can make a big difference in the world, and I'm a big believer in that. So, a young civil lawyer like you finds out that McDonald's has been serving their cups of coffee at, I don't know, 180 or 190 degrees. So, if you put 190 degree water on your, you're going to get a third degree burn in a millisecond. They were doing it on purpose, because they didn't want people to go back to their cars, the takeout, you're going through the drive-through window, whatever, and the cup gets cold and then customers come back and go, "Listen the cup, it's cold. Give me a refill." That would cost them another 3 cents a cup of coffee. That's really what they [inaudible 00:13:53]. "But if we serve it at 190 degrees, that won't happen. People won't come back for more cups of coffee. We'll make more money." Well guess what's happening? People getting burned, not just Miss... I think her name was Liebeck, something like that, like the 79-year-old lady, not just her. Others are getting burned and McDonald's is like, "Well, so what? These are not good cases. How are you suing me for spilling coffee on yourself?" So, most people don't take those cases. I think if I brought the case to you, you would've said, "No way. I'm not taking this case," because you're a tough nut for you to take a case. So you just said no. Most lawyers are saying no. Some are bringing the cases, and they get nowhere, they're losing, and it sounds like a loser. You spill it on yourself. Or McDonald's is settling for a couple of bucks, whatever. Maybe once in a while they lose a case. They're doing the numbers and they're like, "Forget it, and we're paying out X in damages in settlements, but if we change the temperature of the coffee, we're going to lose Y in sales." Well, this jury, I think it's somewhere in the middle of the country, like the Midwest, heard this, and they didn't like it. So, they gave this... First, they decided that liability, and nobody knows this. They didn't blame McDonald's a hundred percent, they split liability. And juries could do that. You know that. It's called comparative negligence. We have it all the time. You could blame two drivers. You were 50%, you were 50%. In this case, they blamed the McDonald's 60%, I think, and they blamed this woman 40% because she put the coffee here. Totally sounds reasonable to me. She's somewhat to blame, they were somewhat to blame. Then they gave her, I don't know, three or 400,000 in compensatory damage. We talked about that in our last episode. Compensate her for the pain and suffering, and it was probably medical bills and stuff like that too. But then they went to punitive damages and they gave her, I think something like $3 million. I think it was like 2.7 million bucks in punitive damage, to punish McDonald's. Do you know where they got that number from? It's really cool. Arthur Blyakher: I believe it was a day's sales of coffee. Paul Edelstein: You are the best. How did you know that? Arthur Blyakher: You told me this story before. Paul Edelstein: Because I told you, and that's really what it was. They said, "Oh, well, we're just going to do one profit sales," something like that. That's how they measured it, and they gave her that. But everybody hears that story and is like, "Wait a minute, some lady got 3 million bucks or multimillions," and it was, it's something like over 3 million total, "damages for spilling coffee on herself. That's an outrage." The insurance industry and the corporate industry took that McDonald's case, it actually made it to a Seinfeld episode and it was probably one of the worst things that ever happened to civil plaintiff lawyers ever, because people just completely misunderstood it. When they know the real facts, they're like, "Wait a minute, that makes a lot more sense." But the other question I have for you is.. Well first of all, you're fairly conservative. Any problem with that verdict as I just laid it out to you? Arthur Blyakher: No. Once you learn the facts and you realize the company decided to put profits over people, and that's- Paul Edelstein: That's correct. And that jury didn't like it, right? But ultimately though, the case got appealed and that lady never even collected all that money, as you know. She got some money, but it was reduced significantly. I think she collected something like 300,000 or something like that. She never even got the 3 million. So, nobody ever knows any of the facts of those cases correctly. But the exploding Ford Pinto case and the McDonald's case are probably the two most famous examples of punitive damages cases that I can think of, and they're really interesting to think about. Now, that brings us back to where I wanted to start and where I want to finish. We're talking about punitive punishment, exemplary, make an example. You said in the beginning that type of damage is only available when there's egregious conduct, malice, reckless. It's got to be really bad what the [inaudible 00:17:29], meaning the person who did something, did. Not the recipient, it's not looking at what happened to the victim. It's looking at what the cause, what whoever caused it, what they did. So, I think the most common, easiest thing... I've been a plaintiff lawyer for 29 years and I'm thinking, "Well, we get a lot of drunk driving cases, so those must be perfect cases.... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/27711420

Pulling Back the Legal Curtain Episode 12 (Part 1): Civil Damages Explained 07/27/2023

Pulling Back the Legal Curtain Episode 12 (Part 1): Civil Damages Explained Paul Edelstein: Hello, Arthur. How are you? Arthur Blyakher: I'm good, Paul. How are you? Paul Edelstein: This is great. All right, so good, I've got Arthur Blyakher, my partner, my nemesis, my coworker, my point, counterpoint. Arthur, we haven't spoken in a while, but usually we're fighting at this time in the afternoon. It's casual Wednesdays, is casual every day for me, but not for you. Arthur Blyakher: No. Paul Edelstein: We're always fighting about issues and you're a great protagonist for me and make me think and sometimes learn and change my opinions. But today, I thought we would talk about something that I think you and I don't disagree on, right? Arthur Blyakher: Yep, we're going to find something we agree on. Paul Edelstein: Yeah, there's many things we usually disagree, but I think we agree on this topic. We're going to talk about damages in civil cases, because it's something we do all day long. Almost every case we have, the components are, we think somebody has been wronged, and then because of what happened to them, they suffered some type of damage. And we're usually bringing claims and ultimately lawsuits to rectify the damages that people have sustained. You and I are always talking about damages, we're always kind of on the same page about it and we've learned some things about it even recently, and I thought it'd be a good idea to talk about that. How does that sound? Arthur Blyakher: That sounds good. It's an important topic to talk about. Paul Edelstein: Very important. Well, central to everything we get. And actually, before we started, you said, because I didn't let you prepare, right? Arthur Blyakher: You did not. Paul Edelstein: And you said, "Paul, do me a favor, please don't put me on the spot." Arthur Blyakher: I did ask you that. Paul Edelstein: But you are a trial lawyer, are you not? Arthur Blyakher: I try to be. Paul Edelstein: Whoa, that's a little humble of you. I think you're actually a really good one. Despite you youth, you have more experience as a young trial lawyer than almost any I know at your age. But every trial lawyer gets put on the spot, so we are going to put you on the spot a little bit today, but they'll be easy. Arthur Blyakher: Okay, let's do it. Paul Edelstein: Let's start with, why don't you explain to our audience, all the different measures of damages that a typical civil case involves? Arthur Blyakher: All right, civil case meaning the type of cases you and I typically deal with, personal injury cases. Whether it's a car accident, a trip and fall, slip and fall, in this realm, the main component, what we call compensatory damages, was the person hurt and should they be compensated? You look at the physical injuries they sustained and that's different than in a contract world where you have liquid damages, you know exactly how much you suffered. In our world, it's different. You try to put a value on something that's hard to evaluate. Paul Edelstein: Let me stop you for a second. That's great, you mentioned two words, they were lawyerly words. You said there are compensatory damages and liquidated damages and they're different. Arthur Blyakher: Right. Paul Edelstein: Explain that to me as if I was a 10th grader. You talk to me like I'm a 10th grader a lot, by the way. Arthur Blyakher: I gotcha. Paul Edelstein: Keep doing that. Arthur Blyakher: Liquid damages is where you have a set amount that is determined before the lawsuit starts. In a contract case, I will pay you $1,000 for you to paint my house. You painted my house, I didn't pay you, I breached the contract. We know the value of that loss, it's $1,000. That's liquid damages. We don't have to try to evaluate what the measure of damages are. In our world if a person, say, breaks an arm, how much is that worth? Well, for each person that's worth something different. To LeBron James, that might be worth something different than to me. I don't use my hands really to work, I use my mouth, I use my brain. You, I've seen you in court, you sometimes use your hands to work. Paul Edelstein: All the time. In fact, a lot. My mouth, I like to say if somebody punched me in the mouth- Arthur Blyakher: Right, that would be a lot worse than a broken arm. Paul Edelstein: Correct. For me it would be more, right? Arthur Blyakher: Right. But in our world it works a little differently. We try to evaluate injuries and there's also another measure of damages, economic. If a person lost time from work, that's fairly easy to calculate. How much were they going to get paid if they were able to work? Those are a couple of damages, the line items of damages. Medical treatment, how much did the medical treatment cost? And at the time of trial, if you're talking to a jury, it's phrased as past and future. Everything up to the date of the trial and then what is expected from the date of the trial into the future. You have that for medical expenses, life care, what we call that, pain and suffering, same thing. Paul Edelstein: Now you're throwing out that. I'm in 10th grade, now I feel like normally when I talk to you, I don't know what the hell you're talking about. Actually I do, but the 10th grader might not. So now you got to break that down. You mentioned a lot of phrases. You said pain and suffering, you said past pain and suffering, you said medical bills, you said life care plan. No idea. Well I do, but I'm going to be my 10th grader who's like, "I don't know what you're talking about." Arthur Blyakher: We'll do it one by one. When you're asking a jury, "We've proven liability," so we established that somebody else is at fault for somebody getting hurt, for our client getting hurt. And now we're talking about what's the value of their injuries or how were they harmed, how can we make them whole? That's the phrase I'm sure you're going to want me to explain. That's what we do in the civil context, in the civil justice system, we make people whole. You can't put their bones back together, you can't return their health. The only thing we can do is ask for what's a fair and reasonable amount of money to make them whole, to compensate them for what they've lost or what they've suffered. Usually it's pain. Pain, it's a loss of enjoyment of life, they can't do the things they normally would do. So we try to evaluate that. And when you're in front of a jury, you have to break it up. How much are their injuries worth up to the date of the trial and starting from the day that they got hurt? Paul Edelstein: That's your past pain and suffering from the day they got hurt, up until the time you were at trial and you're saying to a jury, "From the day this man or woman got hurt until today, I'm asking you for a set amount of compensatory damage to compensate my client for their pain and suffering for that period of time." Did I say that right? Arthur Blyakher: Right. And the focus is the victim, the person that got hurt. That's what we're evaluating. Paul Edelstein: Let me ask you a question because we keep saying this. Everybody, every lawyer, pain and suffering, "I'm suing for pain." Well a few people with commercials, they can't freaking stand from some of my colleagues. Pain and suffering, are they the same thing? Arthur Blyakher: No. Paul Edelstein: Tell me the difference. I told you I'd put you on the spot. Arthur Blyakher: You did put me on the spot. I would say that pain is a little easier to evaluate. You know that during injuries you expect them to cause pain. A doctor evaluates that based on what a person says. "Tell me what you're feeling." "I feel pain. I broke my arm, it hurts here." Suffering encompasses things that you cannot describe just by pain. My arm hurts, but I cannot care for myself. I can't do the things that I need to do for myself. I can't cook, I can't clean, I can't dress myself. And that's causing me to suffer in a myriad of ways. And it's not just pain. Pain would not encompass everything that a victim who got hurt would be going through. Paul Edelstein: Do you need both? Arthur Blyakher: You don't need both but typically, in our room you see both. Paul Edelstein: Let me give you an example of that. Look, we know pain. Somebody breaks their arm, they've had pain, but then the arm heals. Now the arm doesn't hurt anymore, but they can't use it the same way anymore, may have suffering. I explained this to my 10th grader because he wanted to understand this. And he was like, "I don't get it. You just told me you have this big verdict and where's all this money come from?" And I said, "There's pain and there's suffering and this person had a lot of it." And he said, "I don't get it." And I said, "All right, let me give you an example." I said, "You, my adorable son who I love so much, seem to play video games a lot." You know what I'm talking about, right, Arthur? I know your kids are really young, but you're going to get there. This kid's playing video games all day long. He's watching YouTube all day long, he's playing Call of Duty all day long. It's just Clash of Clans. I don't know, there's a bazillion of them. Arthur Blyakher: All over my head, I'm sorry. Paul Edelstein: You don't even know what it is, you're going to get there, you better learn these things. So I said to him, "You remember last week when mom came in your room and said you're no longer playing? And to ensure that, she took the power cord from your computer right out of the computer, right out of it. Therefore, there were no more videos." I said, "Let me ask you a question." I said to my son, "Did you suffer any pain from that, were you in any pain?" He actually said yes, but the reality is no, there was no physical pain. But did you have suffering? You no longer could play the video games, did you suffer? To him, this was the greatest suffering ever invented by man. Obviously, we felt a little differently, but it's an example. Here's an interesting example you can give to somebody and say, Look, if somebody by way of their negligence..." In this case it was intentional, my wife and I intentionally deprived him of this enjoyment as a punishment. But in other cases, you can have somebody that loses the ability to do something maybe because of an injury, and maybe the injury heals or maybe the injury's not even one that produces pain. It could be a psychological injury, it could be a lot of things. And that injury prevents that person from doing things that they normally would like to do, so maybe playing video games. I don't know, playing basketball. Somebody gets injured in a car accident, they wreck their knee, it's horribly painful, but in a year later the knee's 100% but guess what? You're never going to play basketball again. Well that, you've now taken some element of that person's life away from them, their enjoyment of life, and therefore, there is a suffering component to that, perhaps an even bigger component than the pain component. And I think in most cases that's what we have. Everybody thinks of an injury, you broke a bone, it's a lot of pain, but oftentimes it's that secondary part, that suffering part that's far worse and needs to be compensated for. And that's what we talk about a lot, do we not? Arthur Blyakher: Yes. And that's what we try to explain to a jury. It's hard to explain for somebody to grasp it right away, that that is what the money really is for. Paul Edelstein: Well, did I do a good job right there? I tried. Arthur Blyakher: You did a good job, but I would take it a step further and explain. In the world, use your son as an example. If you wronged him, assume that you guys were wrong, you and your wife were wrong for taking his cord. Paul Edelstein: Okay, that's a big assumption, but all right, we're going to go with it. Arthur Blyakher: He sued you. The money will not give him back to the cord that you took, but now he could use that money for something else in his life that will bring him some enjoyment, to fill that void that you left by taking that cord. Paul Edelstein: I get it. It's like we try to restore a person's dignity, because to whatever extent we can or give them the ability to do other things, and sometimes money provides that, in order to compensate for the loss they've sustained. And unfortunately, our civil justice system has limitations. We cannot repair somebody's injury and we can't replace the suffering that they had, but we can give them some financial compensation that is geared towards doing that. And you talk about a past is to now, I know the other component, to this future pain stuff. Why don't you explain that? Arthur Blyakher: Sometimes it's easy, sometimes the person will, if it's an injury to your spine or your legs and you have difficulty walking or if you lose your ability to walk, you know that you will not walk. After you walk out of this courtroom, you still won't be able to walk. And you won't be able to walk, likely for the rest of your life. That obviously has to be proven with medical evidence, but if you do, how do you compensate that? You look at the things that we have at our disposal, the resources, that work life expectancy or life expectancy, and how long will this person be dealing with these injuries? And you ask the jury to compensate them for the future, for the entire span that these injuries are expected to affect the victim. Sometimes it's difficult because you don't know if somebody's going to heal or not, but you use experts, you use resources to try to evaluate that. Paul Edelstein: Well, you know what? There's one pretty good resource for the future pain and suffering, and that's called the United States government. I know that we all operate, and judges in courts all operate with a book. And it's interesting that I think every lawyer, and even if you're not a lawyer, when you have a case, you should start with this book. It's called the Pattern Jury Instructor. And it's a book put together by really good lawyers and judges and it's edited and changed every year. That really governs all the laws in all these areas, but particularly in this area, there are government statistical tables in those books that come from years and years of research that give guidance to judges and then ultimately to juries and lawyers as to how long a person's work life expectancy will be. We have an idea of this and it's not 100% accurate, but it's a great guideline. It's used by the United States government and used by a lot of different agencies, not only for work life, how long you're expected to work. I'm going to work at least until next week and then I don't know after that. When people normally expect to retire and things like that, but we also have life expectancy tables that are in the back of that book. I know you know this because you and I have sat and looked at them all the time, and the life expectancy tables for men, for women, for all these kind of things. And they give a sort of a guideline as to how long people are expected to live and how long people are expected to work. And those guidelines are then used by us as lawyers and ultimately, hopefully by jurors for this future pain and suffering component, or in the case of somebody that wasn't able to work, for the potential future compensatory damages for lost wages, which is a component. That's how we do it, is it not? Arthur Blyakher: Right, that is. Paul Edelstein: So if you were disabled from this point, being that you are, how old are you now, 27? Arthur Blyakher: 34. Paul Edelstein: 34. How long have you been working in with us? Arthur Blyakher: 20 years, about. Paul Edelstein: Wow, so you started when you were 14 years old? Arthur Blyakher: 14, 15, yeah. Paul Edelstein: Wow. You were a bigger pain in the neck when you were 14 than you are now, but I got to tell you, you've matured. Arthur Blyakher: I had much more hair. Paul Edelstein: Had more hair. Arthur Blyakher: [inaudible 00:14:47] Paul Edelstein: But here's the example I'm going to give. You as a 34 year old and me as, I know it's going to be hard for anybody watching this to believe, but I'm 55 years old, incredible. This lawyer thing has only given me gray hair, but it hasn't taken my hair away. Arthur Blyakher: You don't have a boss like mine. Paul Edelstein: I'm 55, so our work expectancy would be vastly different and our life expectancies would be vastly different. And so that would manifest itself. If you and I each had the same claim, there'd be difference. We would be asking a jury for more money in future pain and suffering for you than me, because you have a longer life expectancy unless I kill you. Just doing something wrong here, which would never... And you have a longer work life expectancy than me. Well, simply the differences in our age, so those are components to this future damages type of claim, are they're not? Arthur Blyakher: Yes. Paul Edelstein: That's a pretty interesting concept for people to think about. And then you mentioned another phrase a little while ago called life care. And I know what that is, so what we're really talking about is potentially future medical needs for people. And sometimes we do what's called a life care plan, but not all the time. Why don't you explain? Because that's not in every case, a future life care plan, but it relates to this future claim of medical damages, so how does that work? Arthur Blyakher: Not every case calls for it, but when somebody suffers an injury that is expected to affect them for the duration of their life or for a long period of time and you know they will need [inaudible 00:16:27] care, sometimes we know what they need because they're already getting it, sometimes they're limited by their own resources. And the purpose of the case is to make sure that they can get the care that they need in the future. So what we do, we hire qualified experts, people that do this for a living, that they refer to the medical records, the doctors, the victim themselves, what they say, and they identify what level of care the person will need in the future. Whether that's a home attendant, whether that is moving somewhere that has an elevator, as opposed to a walkup building. How many times will they need to go to a certain specific type of doctor? Will they need a neurologist visit, will they need an orthopedic visit? How many times a year will they need to get a diagnostic exam? All of this, the life care expert will put into an easy to read and understand form, so charts typically. And they'll say, "They'll need this type of care for this long, this many times, and here's the cost." Paul Edelstein: Okay. But when we have life [inaudible 00:17:37] we're typically talking about people that have been really, really seriously hurt and may need some real care long-term, potentially for the rest of their life. Arthur Blyakher: Right, because an injury that heals, you do not need a future life care plan because the injury is done. Paul Edelstein: One component of that, I just thought of this, we actually have a new name for it. It's usually the home care or healthcare component. And that's usually a big one, someone who's going to need care. I view that as the spousal component. You know why I would say that? I see you laughing, right? Because here's the situation. I know your wife, Megan, she's fantastic. I think she's works pretty hard to make things a little easier for you and your children, right? Arthur Blyakher: Absolutely. Paul Edelstein: And I know my wife, amazing. I get cared for incredibly. But let's imagine somebody then hurt you or me to the point where we needed way more care than our already amazing wives provide for us now, which we think is part of the marital contract and we provide something the other way. But let's say now, you've been injured so bad that Megan really needs to care for you, help you shower, help you bathe, help you dress. You can't earn a living, and your sex life has been impacted, which is part of the marital compact, really, really important. Or same for... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/27584403

Pulling Back the Legal Curtain Episode 11 (Part 2): Questions About Insurance? Call "The Insurance Doctor" Before You Need a Lawyer 06/06/2023

Pulling Back the Legal Curtain Episode 11 (Part 2): Questions About Insurance? Call "The Insurance Doctor" Before You Need a Lawyer Robert “The Insurance Doctor” Intelisano contact information: Paul Edelstein: Here we go. I've got Rob Intelisano, my extremely long time close friend and advisor, also known as The Insurance Doctor. How you doing, Rob? Rob Intelisano: Doing well, Paul. Thanks for having me. Paul Edelstein: This is great. We're going to do a Part 2, or Part 1, depending on how this ends up being thrown on the cutting room floor here. But this one is a Part 1, I think, for me as a personal injury lawyer, and for you as an Insurance Doctor, and that's just auto insurance. Obviously, I represent a lot of people in automobile accidents. I'm seeing them after they've had an accident. Here's what everybody tells me, "You're going to love this person." Every single person, somebody calls me up, they say, "Got an auto accident and I got hurt. Wasn't my fault." Oh, okay. And I think it's the case. And then I'm like, "All right, well what kind of insurance did you have on your car?" I say 95% of the people answer this way, "I had full coverage." You see, you're laughing, right? You're laughing because you know that that's the most meaningless phrase. There is no such thing as full coverage. I laugh when I hear it too. I'm like, "There's no full coverage. Can you give me your deck page?" It's really important for me to know various things on an automobile insurance policy. And I know you know these, so we'll go through them. There's no-fault coverage. There's income loss, wages coverage. There's property damage coverage. There's collision insurance coverage. And there's one that becomes real seminal to me, supplementary uninsured motorist protection, or SUM protection, all the time. So guys come to me, but now they've been in an accident. Hopefully they come to you, when we talked earlier today about your job, what you do. Hopefully they come to you as an independent. You don't work for any of these insurance companies, and say, "What's a good idea for me to buy?" Because there's no such full coverage, right? Doesn't that happen to you? Rob Intelisano: It does. And you hit on a couple of things. There's the old joke, "What are the three biggest lies?" One of them is, "The pizza's on its way." And I think you hit another one, "I have full coverage." And I have another one when I'm speaking with people as far as certain types of insurance that have to be underwritten, like life insurance, disability insurance, long-term care. And I say, "Well, how's your health?" "Oh, I'm in great health," and then they're on 17 medications. So these are some of the biggest lies. So they come to me, and actually there's a big campaign right now with Liberty Mutual, which does irk me, because they're talking about, "Oh, only get what you need." They're inferring that people, like they know what they need. People come, and, "Well, what's the cheapest policy?" Well, it's not about the cheapest policy, because when you break a policy down, there are benefits to others, but then there are benefits where you can cash in on your own policy, so to speak. Paul Edelstein: Right. Rob Intelisano: I know we've talked about this many moons ago, when you guys were located in Brooklyn. So yeah, no-fault, for example. Sometimes they call it PIP, personal injury protection. No-fault is important, but each policy is going to have different wording, and you really have to break down that policy and look at the wording. Paul Edelstein: Why don't we just explain. If people watch this, they may not even know what it is. So I explain to clients all the time. Because they say, "Full coverage," they don't even know what it is. No-fault coverage is, essentially, if you're involved in an accident, you are mandated by New York to have the minimal no-fault coverage, which you just talked about. You could have a lot more. Some people should, which is $25,000 per person. And what that covers you for, in my business, if you're in an automobile accident, as a driver or a passenger, the car you're in, irrespective of whose fault the accident was, will pay your medical bills. It's a really cool thing, a really good thing. It means you don't have to sue somebody for your hospital, or ambulance bill, or doctor bill afterwards. You're covered automatically, as long as you have insurance on your car. And that's where the phrase no-fault insurance comes into play. That's how you get it, right? Rob Intelisano: Yes, yes. Then there are certain policies that will kick in and cover a little bit of loss of income for a covered action as well. There are policies that may pay a thousand dollars a month for X amount a month. So it's almost like a little bit like a disability income bonus. Paul Edelstein: Right. Rob Intelisano: Absolutely. Paul Edelstein: And you could purchase excess of no-fault, and it's optional basic economic loss. People call it OBEL. I'm sure you see these phrases, right? Rob Intelisano: Yes. Paul Edelstein: So you can actually get more of this stuff if need be, right? Rob Intelisano: You can, and when you look at the premiums, it's really not expensive bumping that up. It's like it's short premiums. The big money is in comprehensive and collision. I think some of these ancillary benefits are actually just as important as the primary insurance benefits. Paul Edelstein: Totally. So you just hit on something that I see all the time, too. People don't get it. They look at a deck page, and I see collision insurance, and that's usually the most expensive one. What that essentially means, in my world over here, if you're involved in an accident and you have collision insurance, then again, it won't matter whose fault the accident is. If it's your fault, the other guy's fault, you'll have the option of going through your own insurance company. They'll pay for your property damage, they'll take care of everything. That's a pretty cool benefit, and an easy one when you're in an accident, because you don't have to worry about who was at fault, or "Was it partially my fault? Partially this guy's fault?" And fight with insurance companies. You just get your car fixed, irrespective of that, and that's great. The problem with that is, as you just said, is that's usually the most expensive part of a renew automobile insurance policy, and oftentimes it's not worth it. So if you have a car that's 10 years old, 15 years old, you could pay more on the value of the car over five or six years, per collision, than the car is worth in total. Have you seen that before? Rob Intelisano: Yeah, that's a really good point you're making. A lot of times that happens because there was no review, or update, or broker a conversation, in last 10 years. There are certain people that believe in insurance, and certain people who don't. So if you had, let's say, comprehensive collision early on with that vehicle, and then you kept that vehicle for eight or 10 years, if you're not going to drop the collision or comprehensive, raise the deductible to a thousand dollars, it will lower that premium. Paul Edelstein: See, you hit on the perfect thing. It's funny, we weren't even originally going to talk about this. This is the most basic thing, automobile insurance. And now I'm thinking, "Wow, there's so many things that happen here." Again, you and I have talked about it, either you're going to see The Insurance Doctor before there's a problem, or you're going to see the personal injury lawyer after there's a problem, and you're going to learn. So if you're learning from me about automobile insurance, you've probably have had a problem. You're better off learning from you before there's a problem. So collision is one thing, to understand how that works, because I'll see a policy after an accident, and go, "You know, probably didn't need collision insurance on this 25 year old car. You've paid this insurance company, you bought the car from them. It was useless to you." And had they seen someone like you, there's no doubt you would've said just what you just said now, "Hey, at some point there's diminishing returns. You may want to get rid of it altogether, or increase the deductible, this or that." It's a financial component. I don't see these people until they come to me. So collision insurance is really one of the big ones. The other gigantic big one is supplementary uninsured motorist protection. You're nodding, because you know what that is. I never knew what that was until I became a personal injury lawyer. And then I was like, "Oh, my God." Here's the problem with that one. Let me explain what it is first, because I know you know, all right. So if you're involved in an accident, with some other guy that doesn't have any insurance, happens all the time, no insurance, or a hit-and-run, they leave. Even if you're a pedestrian, and you're involved in a car accident, or if you live in the city, like you and I have grown up in the city all of our lives. We're in taxi cabs a lot. They don't have great insurance. Supplementary uninsured motorist protection covers you in all of these situations, and it also covers any family member that lives in your house. And for me, that's massive. That, for me, covers 15 people. Just that one policy. My one car policy covers 16 human beings, because I live in a giant three-generational extended family. So this is the most incredible coverage ever. And the way it works, basically, is if you're in an automobile accident, in any way, shape, or form, and the person that hits you doesn't have any insurance, or doesn't have enough, in other words, has the minimal insurance. In New York, $25,000 is the minimal liability insurance you can have. If you get really badly hurt, and you're seeing me $25,000 doesn't do a damn thing for you, nothing. That's useless. So the next question I ask somebody is, "Well, can I see your policy?" They say the same thing we just said, "Full coverage." And I'm like, "Okay, there's no such thing, and I want to look at it." First thing I'm looking for is that SUM, supplementary uninsured motorist protection, to see what was that? So many times I see that that insurance coverage is the minimum, while somebody may have an automobile liability coverage way higher; $100,000, $300,000, $500,000, which of course protects their own finances if they were in an accident that was their fault, and someone like me was suing them. So they're paying for that. They may be paying for collision, which may or may not be necessary. If they didn't see somebody like you, they would've no way of knowing. Then they have the minimal SUM, and I'm like, "Oh, my God, horrible." That is my nightmare scenario as a lawyer. I can't tell you how many times I've come across that situation in my career. Now I'm going to ask you, you're the broker. If I went to you beforehand, because I don't like insurance companies, I don't want to pay them a lot of money. You just said it earlier, you're like, "Ah, people don't want to talk about, they don't want to give them, they think everything's a ripoff." SUM coverage. Expensive, inexpensive? Good value, not good value? Rob Intelisano: Yeah. So first of all, you said a lot of things here. First thing is, come to me first. I'm not charging a fee, so come to me first. Secondly, not only is there uninsured, but there's underinsured, which you can collect as well, supplementary uninsured or underinsured, and it's very inexpensive. If I'm doing a review with a client, and premium's an issue, which it usually is, "Oh, I don't want to pay this." First thing I'm looking at is their deductibles. A lot of times, no one looks at these policies. They probably can barely even find out where they are. If they're not computer savvy, that's another issue, because then they don't have the PDF of it. So obviously, situations with the $250 deductible, and obviously you want to know what the financial situation is with the client, what type of emergency fund money they may have. But I'll say, "Look, raise your uninsured. Raise your supplementary uninsured, and raise the deductible, and I can save you a few dollars." So you're paying less, and now you have more coverage, and your deductible went from $250 to $500. But if you have a claim, a $250 is not going to make a big difference if you're having a claim, but it will make a huge difference if you just bumped up your supplementary uninsured from 25, let's say, to $250,000. That's a major difference. You're not paying tax on that claim either. Paul Edelstein: I'm telling you the difference between raising an SUM, or the supplementary uninsured component of an auto policy, to make that go from the minimum $25,000 to $100,000 or $250,000, or $500,000, as you said, sometimes costs $25, $50. It's unbelievable. Rob Intelisano: It's negligibly cheap. Then when I point that out, people like, "Why didn't my broker tell me?" Paul Edelstein: I'm going to tell you something that I wonder if you know. All right? First of all, if anybody went to you, see The Doctor before you have a problem is really a good idea. See The Insurance Doctor before you see me, after there's a problem, okay? But I'm going to ask you this question. I wonder if you know. This supplementary uninsured motorist protection, that component of your policy, you're required in New York to have the minimum, all right? You cannot have more SUM than you have liability, because it's a money loser for the insurance carrier. So that was the law. That's the law that you were able to get passed. So the SUM can only be the same as your liability coverage. Rob Intelisano: We call that upside down- Paul Edelstein: There you go. Okay, so there's a phrase in there. So if you have, let's say, $100,000 in liability, or $300,000, but you only elect to take the minimal SUM, New York State law, I can't wait to see if you know this, because it is such a weird arcane thing. It's such good coverage that the New York State legislature mandated that insurance companies send a policy holder a separate notice if they elect to have the minimum, and they have more liability, explaining to them that they only took the minimum, and that it's the benefits of SUM. So basically the law makes the insurance company go to a policy holder, and say, "This is a stupid idea. You probably should have the same." They almost try to do your job. But you know what happens? Nobody believes when the insurance company sends him a letter, they have to send the letter on special pipe printed letter advising that policy holder. Did you know that they have to send this out? Rob Intelisano: I did. I did. And nobody reads it. Paul Edelstein: You know everything. Rob Intelisano: No, I don't. But nobody reads it. But I will tell you that If I don't know the answer, I will find the answer. And that's another thing, when someone comes to me with a problem, if I don't have a direct answer, I'll find him that answer, and quickly. But also, New York state law, a lot of people don't understand, New York's insurance is regulated by state, all right? So what I explain this the people, you have FDIC. The banks are federally regulated, Federal Deposit Insurance Corporation. So everyone's got the same rules. The stock market has FINRA, all right? SEC. These are national rules. The insurance industry is regulated by state. So each state's got different rules, different products, sometimes the phrases are different. In health insurance, the network, it's the same company, but it's called something different. New York is the most highly regulated state in the country of the United States. And what that means is New York requires higher what's called reserve ratios, cash reserve ratios. What that means in English is that if company A has to keep more cash on hand to pay off their liabilities, that's going to hurt their profit. So New York State has the lowest profit for the insurance companies. Next time you see names of insurance companies, take a look, because most insurance companies will set up a subsidiary just for New York, like Jackson National Life of New York. This way those poor profitable numbers do not count against their stock bottom line, because it's a separate subsidiary. One of the benefits of being in New York for the clients, the customer, is that you have more protection than anywhere else. But one of the detriments is that the products aren't as good. When I'm meeting with a client, insurance or whatever it may be, one of the first things I'll ask them, we've been doing this for many, many years, is, "Okay, you're located in New York. Do you have your Jersey Shore house, your Pocono spot? Do you do snowbirding to Florida? California? Arizona? Do you have a business address, or another home, outside New York state? Because if you do, that opens up a plethora of additional products that we can find for you, that they do not have in New York because the compliance is so difficult." Paul Edelstein: Man. Well, if anybody's listening to this, and you're not convinced now that you could see The Insurance Doctor, Robert Intelisano, before you have an issue, I don't know what would convince you. But now we talked a little bit about auto insurance. Boy, you went, you did a deep dive as to why this happens from the insurance company perspective. So you really have insight into it far deeper than even than I certainly do. But the bottom line is, see The Insurance Doctor before you see the negligence lawyer. That's all I can tell you. Rob Intelisano: I could tell you that it'll be painless. I don't bite, and you're not going to get any shots. So we won't be drawing blood. Paul Edelstein: And no one will sue you. All right?. Rob Intelisano: That's it, Paul Edelstein: Doctor, you are the man. Peace, and we're out of here again. Rob Intelisano: All right, man. Enjoyed it. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/27061665

Pulling Back the Legal Curtain Episode 11: Questions About Insurance? Call "The Insurance Doctor" Before You Need a Lawyer (Part 1) 05/25/2023

Pulling Back the Legal Curtain Episode 11: Questions About Insurance? Call "The Insurance Doctor" Before You Need a Lawyer (Part 1) Robert "The Insurance Doctor" Intelisano contact information: Phone: Paul Edelstein: Hello, welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glen Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts? Seems like every day we have these kind of questions and get asked them. So, on this podcast we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right, so here we are. Robert Intelisano, the insurance doctor. Boy, I got to tell you, I talk to you all the time. But we're always neglectful, we never record the conversations, because you're the guy that I go to whenever I have issues relating to your insurance company. And you being the insurance doctor, I feel like I need a doctor whenever I'm trying to talk about insurance companies who I battle with. So, thank God- Robert Intelisano: I understand. Paul Edelstein: Yeah, thank God I have you. Robert Intelisano: Well, we should start recording more often, because I think we've missed a lot of good material. Paul Edelstein: For sure, for sure. Just so we know, so my audience of seven people know, who listen to this, including our family members, who we help out personally, Rob is obviously a very long time friend of mine, but you are my go-to guy for all of my business related insurance, which I have a lot of insurance that I need. I have malpractice insurance, I have disability insurance, I have health insurance, I have dental insurance, I have worker's comp insurance. So, from a business perspective, I go to you with all of these issues and all of these questions. From a personal perspective, I go to you for obviously my health insurance, long-term care insurance, estate planning issues with respect to my own family you've helped me with, which interact in a number of different legal fields with estate planning, with wills and trusts and estates, I mean everything under the sun. And then, at the same time, I get asked all the time and have interactions with insurance companies all the time for my clients. So, because of that, you are an essential component to any personal injury lawyer for sure, and probably any person in an individual standpoint. Everyone should have an insurance doctor that they can go to on call. Thank God I have that. And with that, why don't you tell us a little bit about your interaction with the insurance business, just like a general intro, other than mine. Mine was pretty good, but I think you could do better. Robert Intelisano: No, it's all good. And it's been a great relationship for many, many years, and we appreciate that business. And it's important for clients to have insurance advisors they can speak to. And also, I think coordination is important for different types of policies. Because when you make a decision on one policy, it could have an impact on others. So for me, I have a unique business model. I quarterback a team of professional advisors, some of the top guys in the country, all have 20 years of experience in different specialties. And I look at myself really more as a problem solver and a connector. So when an issue comes up is a client has a problem, my job is to figure out, well how do we fix the problem utilizing insurance-based solutions in an economical way? Because really, insurance is a form of gambling, as you know. There's a probability if something happened and people can either self-insure or transfer some of that risk to an insurance company. So, my job is to educate the client and figure out, well how much of that risk should we transfer to the insurance company? And then, do some research and shop the market and find the best solution with the most reasonable premium. So, there's a lot to it, but it's very important for really all business owners to have go-to advisors. It doesn't necessarily have to be me or one person, but it is important if they have multiple advisors for multiple types of insurances that those advisors are in conversation with each other, because making certain moves on one type of insurance could have an impact on others. Paul Edelstein: Right. So, that works the same way for me. So, we're advisors. I like to think we're lawyers, counselors at law, and I really like to think that we counsel people on a number of different issues. And certainly, in my experience, doing this for a long time, and you've been doing it as long as I have been, we rely on experts like you when we have questions and things that we can't answer. Hopefully, we rely on guys like you before there's a problem, and we don't need a problem solved. With that in mind, I get asked all the time, when clients come in and want me to educate them after they've been involved in some kind of accident, and then they want to know how the system works. But as I understand it, clients come to you for a very different reason. So, they may come to you at the inception and say, "Well, what do I need and what don't I need?" And since you and I both are involved in the insurance industry, I fight with insurance companies all the time. You probably do too. Robert Intelisano: So do I. Paul Edelstein: Yeah, exactly. What kind of things do you tell... The average Joe walks in, say, "Hey listen, here's something you probably should have, the average person should have, average client should have. Here's things you don't necessarily need to have. Here's the gray zone in between," on the average guy. Robert Intelisano: Yeah, I mean depending on what their needs are, there is over insurance. And I just find that a lot of insurance brokers and agents, they're really more like salespeople. They're just trying to get a sale, and it's very shortsighted. I look at myself, like yourself, more as a counselor and an advisor. So, I first want to have a conversation as what's important to you, what are your objectives? And then we will make a recommendation as far as policy based on those objectives. And we'll also give them two or three options and explain the differences. For example, I got referred to a woman and she just got out of her residency recently, and now she's in her fellowship, and she's going to jump from about $85,000 to about $450,000 of income in one year. And she's young, low forties, young kids. And we're talking about disability insurance. And disability is critical for doctors. And she has an advantage because, unlike most people, she's going to have a big bump in income and she knows how much the income is going to be, so she can plan in advance. So, I explained to her, "Look, I mean you can wait until your income goes up in two to three years, but you're going to pay a higher premium. You can lock in on a base policy right now for a lower premium, and then you can add more insurance down the road." And so, I gave her a couple of different options of disability policies for example. And she said, "Okay, well what are some of the other differences?" We started with the top seven. We have a whole program, and we take the price from pricing, we removed the top few because they were too expensive. One company wasn't A rated, so we removed them. And then, we were down to two or three companies. And I explained to her, "Look, there are similarities, but the wording..." And I know one of the reasons why you're such a great attorney is because you pay attention to detail, and the wording of insurance policies, one different word could main make the difference between being on claim and not being on, one word. So, the definition of death disability is critical, meaning own occupation. So, the better policies mean that you can't perform your own occupation, your specialty, then you can go on claim as opposed to any gainful occupation in your field. To give you an example, she's an anesthesiologist. She's right handed. I give her an example. I said, "Okay, great example, husband and wife going out. You go out your husband. By mistake, the door gets closed on your right hand. Your hand's mangled. You can no longer perform the job you were trained to do, which is an anesthesiologist, because you need dexterity in your right hand. With a good policy you're on claim, because you can't perform the material of substantial duties of your specialty. And you would also have the option to say, 'Look, my hand is destroyed. It's not going to heal where I can't be an anesthesiologist anymore. However, I can supervise others.'" She could shift into a managerial position and still be on claim and be working with the proper type of policy. With the wrong type of policy is any gainful occupation, so the first two years they give you own occupation, and then after the second year you now has to fight again to go on to continue that claim. And that's again, it's just a little definition of disability. We also found one of the three policies actually will cover elective plastic surgery gone bad. She's like, "Wow, I can't believe this, because it is something I've been thinking about down the road. I'm in my younger forties now, but once I hit 50, I think I'm going to want to maybe do something." I said, "Well, this particular policy will cover elective plastic surgery gone bad. And you can actually take a policy out to age 70 if you don't plan on retiring at 65." So, it's important to be able to really dig in and learn about the person before you start going and looking at products. Paul Edelstein: See, so now that's important, because that same person, if they had an elective surgery gone bad, may end up in my office. Right? Robert Intelisano: Well, exactly. Paul Edelstein: Right? Robert Intelisano: Exactly. Paul Edelstein: And now I'm thinking, all right, if that happens, an elective surgery gone bad, all right that's a very nuanced thing in one of these disability policies. But let's just take that same anesthesiologist gets in a car accident and mangles her hand. She's also going to now be in my office with a claim. Now, because my claims could take years to resolve, the first problem I run into is somebody saying, "What am I supposed to do in the meantime?" And if they don't have that disability policy from you, it's a major problem. Because, people always ask me that. You get a car accident, anything, any kind of accident, they're hurt, they're out of work, and the first thing that's going to happen is they're not getting a paycheck. And so, the very first thing I'm looking at then is to say, "Well, is there some kind of coverage in between here that you can tap into while we're waiting for the litigation to play out, which could take years?" So, if these people didn't have the foresight to see somebody like you and have an understanding, hey, maybe this is a good idea, they could be out of luck, and then they could be waiting years for a claim to wind its way through the litigation process before I can get them a recovery. You seen that happen before? Robert Intelisano: No question. Yeah, absolutely. No question about it. And a great mentor of mine used to say the situation is the boss. So, in a situation where they didn't plan for a short and medium term disability issues, I mean they may take a much lower settlement as opposed to waiting it out and letting you do your thing. Again, it's so important just to discuss these things and at least present options that they have, whether they choose to put those options into play really is their decision. But it's my job to present options and here's why it makes sense to you, and you make the decision. Paul Edelstein: See, that's an interesting thing, because see, here the interaction between somebody having a policy like you just said and as it relates to a litigation is they may be in a much better position to wait out a litigation and get full value on their litigation-related claim because they have a disability policy in place that's paying their lost wages during that time period. So, these are all things that just become tremendously relevant to a litigator. The other thing that happens all the time for us, Rob, and I know I call you all the time, this is how is the interplay when a case closes with somebody that has benefits and things like that and how that's going to relate to that. Do people come to you when they have a litigation related claim and they're like, "Well, hey, what do I do? How does this impact on my policies"? Robert Intelisano: Yeah, they absolutely do. Usually, life triggering events are the time to start reviewing existing policies. So, lawsuit, litigation, divorce, death, disability, a new child, when you're having life-changing events, that is the time really that you want to take a look and look at your policies and do another review. And also, fortunately, we work with a lot of law firms like yours. And I'm actually a guardian. I have two wards, so I'm familiar with writing affidavits and reading legal documents and also structured settlements. So, it's important to understand that I can counsel them on the structured settlement and also certain monies, what should we do with money is that you're not going to be getting a structured settlement. Right now, these are structured settlements. This is a great time to take out a structure settlement, because interest rates are so high. And as you know, Uncle Sam gives you a one-time get out of jail free card to have tax-free interest. This is optimal time for that type of planning. Paul Edelstein: Yeah. That's interesting that you mentioned that, Rob. I didn't even think of that. There's three different times that I rely on a guy you. There's before anything's ever happened to me or anybody in my business personally, where I'm coming to you and saying, "Hey, what do I need to cover my employees, myself, my family?" Nothing's happened to me, but I'm asking that. And I think periodically, you and I talk about that and review that, probably on a yearly basis or certainly biyearly basis, where you revisit- Robert Intelisano: Or [inaudible 00:12:31] in passing. Paul Edelstein: Yeah, that's right. Well, we pass each other, so we get that chance. But guys that don't pass each other probably should look out for that and say, "All right, before anything ever happens, let me do this." Then there are times I come to talk to you when something has happened, not to me personally really, but clients. I go, "Hey Rob, I got a client. This is what happened. I want to know what you think about how does this impact on their disability policy, how can we use it," or whatever. But there's also times that I come to you, because you just triggered that thought, when I've settled the case. And I've said, "All right, now I've got a situation where I've got somebody permanently injured or catastrophic type of case. I've got a proposed settlement out there. Part of the settlement money is earmarked or supposed to be geared towards future medical care." So then, if a lawyer like me doesn't engage someone like you, he's a fool, he's not doing his job, to say, "All right, I've got this settlement. It relates to this person's future care." So now, I need somebody like you to weigh in and go, "Hey, am I handling this right?" That's where structured settlements sometimes come in, trusts sometimes come in, guardianship sometimes come in. And clearly, that's where a guy you comes in, right? Robert Intelisano: That is true. And I will say that is one thing that does set you apart and your firm is the degree of care that you have for your clients. I mean, I do business with a lot of law firms, PI, med mal, matrimonial. And there are times where I sense that the lawyer just wants to get rid of that client. Once they give them that check, they're like, "Wow, I'm happy to be rid of that client." To me, their job is not fully done at that point. So, you want to make sure you're giving a check to a client, a large check, if they're not doing a structured settlement, their problems aren't over. Their problems have just shifted into, "Now what do I do with this money and all the new friends I have that know I got a big settlement?" So yeah, exactly those, that's important times. Because now, if they're going to go with the structured settlement, now you know their income, which makes it a little easier to plan, because you have certainty. So, no question about that's an important time, once they receive a check, to send them to a guy like myself. Absolutely. Paul Edelstein: I even recollect that you've been involved with me definitely. And I think other guys actually got involved in court cases at the settlement stage, have you not? Robert Intelisano: I have, yeah. And I love that. I mean, my father always wanted me to be an attorney, and I was the type to do the opposite. So of course I got into insurance instead and my brother became the attorney. Yeah, so I really enjoy the legal aspect of it. I am a guardian, so I do work with the Queens Supreme Court Article 81, and I really enjoy the legal aspect of it. Paul Edelstein: How does that work? You being a guardian, let's say, look, that could be non-litigation, nothing related to a personal injury or injury case, but oftentimes it is. Somebody's disabled as a result of an accident, or I guess they could become disabled and need a guardian obviously a lot of times without an accident ever happening, and a guy like you gets involved. What do you do in those situations? Robert Intelisano: Well, for me it's important to understand what their total situation is. How is the family involved? Do they have the wherewithal to pay their own bills, to make their medical decisions? So, I feel like it helps me be well-rounded to be a guardian, and to look out for certain things, and to know when it would make sense to put Article 81 papers in to try to get a guardian or not. Supplemental needs trust sometimes will come into play. So, being involved practically, instead of just research wise, I feel gives me good actual case knowledge and experience to give my advice. Paul Edelstein: There's no doubt. I mean, I've seen it personally with you. So, supplemental needs trust, those are things that impact on my business in representing injured people all the time. What kind of interaction do you have with supplemental needs trust as it relates to a claimant that I may represent? Robert Intelisano: Well, I mean one of my wards has an SNT. So, it's important to understand the document, because I'm bonded and I have a fiduciary responsibility. So, I've got to be responsible with that money. We're talking about seven figures. So, you're investing the money, you've got to protect the principle. I always try to explain to people in general, if you don't have money, then your problems are different, you need money. If you have money, it's about protecting yourself. And really, there's three main contingencies that I want to make sure they're taken care of. You could either lose your money in the stock market, you can get sued and lose your money, or you can get sick and your money can go down to drain for hospital and medical bills. So, it's important to make sure that the client are protected from all those three things. So we want to utilize FDIC. There are insurance products that are protected. This what's called the New York State Guarantee Corporation, where fixed annuities are protected in case there's default. I mean, with the recent banking crisis, these things will come to the forefront, and it's important to know these rules and laws. Paul Edelstein: Right. So, this is what happens when we are fortunate to come to the end of a litigation... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/26951070

Pulling Back the Legal Curtain Episode 10: Discussing Legal Circumstances in Foreign Jurisdiction 04/12/2023

Pulling Back the Legal Curtain Episode 10: Discussing Legal Circumstances in Foreign Jurisdiction Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner, Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" Seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there. And hopefully, give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. Mr. Faegenburg. Glenn Faegenburg: Mr. Edelstein. You are looking- Paul Edelstein: Good morning. Glenn Faegenburg: Very, very happy, while I'm trapped in this office. Paul Edelstein: I am very happy. There's no question about it. All right. I'm sitting here in Las Terrenas in the Dominican Republic, in the Samana Peninsula. Where, as you know, my wife's family's from. So I've been coming to the Dominican Republic for about 16 years, to this exact spot probably for about 10 years. I'm very familiar with this. This is Playa Ballenas, which means beach of the whales. And it's actually whale mating season here now, so maybe you'll catch some action in the background if you're really paying attention. Because that's what this place is famous for. Glenn Faegenburg: I like the view of your satellite office. I want to know when I'm going down there and setting up the office for good. That's the big question. Paul Edelstein: Well, the amazing thing is that we're able to actually do a little work or have these kind of conversations in this kind of manner. That's pretty remarkable. Glenn Faegenburg: It is. Paul Edelstein: But actually it's interesting because we said let's have a conversation, not just about how wonderful it is to be in these great places, but about how it affects our business. Which I think it's becoming more and more common. So as it becomes easier to travel, and it's pretty easy to travel, but as it becomes even easier to work and travel and people could go away and actually work remotely like from here, although I don't really do that too often. But then you're going to have more things happen, more instances where you have stuff happen to you. Like a criminal act or a civil act, you get hurt or something like that, and now you're in a foreign jurisdiction. So I'm here in the Dominican Republic and I have to tell you that it's incredibly easy to have a good time here. Incredibly easy to get a cold Presidente here. But if you have some kind of issue with the law or injury or something like that, it's obviously very different than what we're used to in the United States. Not just because it's foreign and because the language, but because the rules are a little different. Glenn Faegenburg: I think that tends to be very true for a lot of places that are outside of America. America has many things that are great, America has many things that are not great. One of the things that I think is very good in America is our civil justice system, especially in addressing personal injury cases. Which is what you and I do. If you go abroad almost anywhere, really, the laws tend not to be as favorable, in general, to people that are injured as they are in America. It's one of the better places of when it comes to civil justice. So tell me a little bit about the DR because I'd like to know a little bit about the rules down there and what it takes to bring a case. Paul Edelstein: Well, very, very different. Now, one thing is that you can bring a civil case. So if you get injured in the Dominican Republic, you can bring a case. If you're injured in a car accident or you're injured at a hotel, that can happen. Let's take the most common instance that you and I may come across, because obviously we're based in New York, so we're probably going to represent Americans or Dominican Americans that are traveling in the DR that get hurt. So we may get a call when either a Dominican American or an American citizen comes back to the States and says, "Well, I got hurt." And I would think the most common call that we've gotten, and we have gotten them before, is that they were hurt at a hotel. Obviously the Dominican Republic is fantastic, it's really one of the best places to visit really in the world if you want Caribbean weather and you want this view, and you want really happy, helpful people and just a really low-key, amazing environment. It's just the greatest place. So because of that, it draws a lot of tourism. Then the next thing that might happen is, look, it just happens. You're at a hotel and you slip and fall or you trip on something. Or we had a case where somebody called us and they had carbon monoxide poisoning from a hotel when an air conditioning system or one of these systems had a problem, and somebody got pretty badly hurt. So they come back to the States and they figure, I want an American lawyer and I want to bring the case in America. The first thing you have to think about is, well, can you even bring the case in the United States or not? So you're thinking about jurisdiction. That's the first thing that comes to mind, and the very, very soon thereafter- Glenn Faegenburg: You're using some lawyer words. I'm a lawyer, I understand it, but not everyone may. So when you talk about jurisdiction, what is it that you're talking about? Paul Edelstein: Well, where you could bring the case. So let's say you're injured in Punta Cana. That's most common tourist destination here in the Dominican Republic. You're injured in a hotel there. I don't know, [inaudible 00:05:44]- Glenn Faegenburg: Let's make it a trip and fall because it's easy, right? Okay, I want to [inaudible 00:05:49] a condition. Paul Edelstein: Simplest of all cases, the trip and fall, if something cause you to fall, you broke your leg, it's not your fault at all, let's say. You have a pretty bad injury and you want to bring a case. The first thing you're thinking about as well, does Dominican law even permit me to bring a case? Do they even have civil law similar to us, where you can bring a civil case and get damages for your injury? And the answer to that is, yes, you can. So this is a democratic society here and they have a court system. It's very much modeled after the American system and so you can bring a case. One main difference here, though, is if you bring a case here and you progress all the way to trial, you don't get to go in front of a jury here, you go in front of a judge. And as you and I know, that can be very different and problematic if you don't get a chance to go in front of a jury, that kind of changes the game. The next thing you have to think about is if you're bringing a case here- Glenn Faegenburg: I would also- Paul Edelstein: Where you bringing it? Glenn Faegenburg: I would also be concerned, I guess, since it is a judge that makes the decision, that somebody who is, let's say, a foreigner or an American who goes down there and sues, let's say, a very, very large hotel. They may have a lot of influence down there and that would be something that I would certainly be concerned about. Paul Edelstein: There's no question. Look, the human element's a major part of what we do. It's a big part for jurors, it's a big part if it's a judge. I think in our experience, I know you probably agree with me, the one difference between jurors and judges or one of the differences, look, if you have six jurors, you're less likely to have one individual's bias overwhelm everybody else in terms of what the decision is. But if you only have one juror, and that's what you have if you have a judge, may very well have that. And certainly I think here, there is definitely a bias in favor of the tourist industry. So the Dominican Republic's economy in a large part is based on the tourist industry. So they don't really want to see the tourist industry hurt. And that kind of cuts both ways. Number one, they don't want to see tourists get hurt or be the subject of crimes. And so there's a big emphasis here to prevent that from happening because if a tourist gets hurt, they may not want to come back or they may have a bad review in a hotel. Or if they're subject of a criminal activity, then same thing, bad publicity. Well that hurts everybody here. So the Dominican government and definitely the tourist industry in general, tries to prevent that kind of thing from happening. But if unfortunately it does happen and there's a civil suit, yeah, you'd have to wonder about a judge giving a big award to a tourist who got hurt to the detriment of some individual Dominican citizen, or more likely you're talking about a hotel or a tourist. So those are factors right off the bat. So with that in mind, you probably think to yourself as a lawyer, I know we would and say, well, maybe we don't want to bring the case in the DR. Can we do something different? Can we bring the case in the United States? And the answer is, yes, under circumstances and no. So federal jurisdiction, as you and I know, if you have sort of diversity, so differences in terms of the plaintiff or defendants suing each other. Or if you have a foreign corporation. Glenn Faegenburg: So what you're saying is if the plaintiff is from a different place than the defendant, they're from two separate places. [inaudible 00:08:38]- Paul Edelstein: Right, so there is a way. Glenn Faegenburg: And that lets you get the federal court if it's a big enough claim, right? Paul Edelstein: Correct. That's right. So let's say I'm an American citizen, it's me, I'm injured at the Cortecito Hotel in Punta Cana, or let's make it the Hard Rock Hotel, people know that. There's a Hard Rock Hotel in Punta Cana. I'm injured there, I come back to the states, I come to you, I say, "Wow, I want to sue." And you say, "Wow, well, you can bring the case in the Dominican Republic, but you're going to get a judge." And I say, "I don't want to go to Dominican Republic. Can I bring the case in New York?" And the answer is, yes, you can. Because it's a foreign corporation and I'm a foreign citizen and if that corporation's doing business in the United States and New York. It's very complex, actually, jurisdictional venue, as you know. But there are ways where you can get the case into a New York court and bring it there. Now then another problem happens, and this is what typically happens in cases involving the Dominican Republic. But the next thing that would happen would be that the defendant, so in this case, let's say the Hard Rock Hotel, that knowing that the Dominican Republic is a better venue for them will immediately move to the federal court in New York and say, "I think the case should be brought in the Dominican Republic something called forum non conveniens." You know what that is? Because I know you studied- Glenn Faegenburg: I do. Paul Edelstein: Latin in college Glenn Faegenburg: And I think ... it is Latin and it is what people think. It means, it's an inconvenient forum. That's really what forum non conveniens means. And when they talk about that, they're talking about, is it convenient for the witnesses that are going to be involved in the case to get wherever it needs. So if it happened down in the DR, and there are witnesses down in the DR, and there is doctors down in the DR. The defendants are going to come in and say, "Listen, everybody's down into the DR for the case. What are we doing in New York?" Paul Edelstein: That's right. And if you look at the cases. And in fact, one of the leading cases is against the Hard Rock Hotel in the Dominican Republic. But this type of principle would apply if you were injured in Spain, France, the Caribbean, South America, wouldn't make a difference. If you were injured at a big multinational hotel chain, you might have an argument to bring them into New York court, in federal court, get federal jurisdiction over them. But then they would immediately say, "Well, this is an inconvenient form." And then the courts would look at the other form to determine whether that form has sort of stronger contact to the case. And let's say in the Dominican cases that I know, they would win. So in other words, the court would look at it and say, "Well, the Dominican Republic has a civil justice system, the court system's very similar to the United States. And of course, the witnesses are there. And so the plaintiff is not hurt, he's not harmed by bringing the case there." And they would remove the case and send it back to the Dominican Republic, which of course creates all sorts of problems if you're a plaintiff and you have a New York lawyer, then what do you do? You're probably going to want to associate yourself with a Dominican law firm and you're going to get caught in the Dominican justice system here, which is very different. You're going to have a judge decide your case, not a jury. You're going to be forced as a New York plaintiff to maybe come to the Dominican Republic to litigate your case. Not the most attractive scenario. So that's the first thing you're thinking about, where can I bring the case? And then the second thing, or maybe vice versa, maybe this is the first thing and what we just talked about is the second thing is, when do you have to bring the case? So that's a good question, let's put you on the spot, Mr. Faegenburg, because I know you know a lot of things. So the statute of limitations in New York for bringing a civil personal injury suit is three years. And as you and I both know, we have to pay attention in the United States to statutes of limitations for different actions, medical malpractice versus personal injury, legal malpractice. We have to pay attention to statute of limitations if we have a plaintiff for somebody in a different state, New Jersey, Massachusetts, Connecticut, all different. Same thing here. So there is a statute of limitations for bringing a civil suit in the Dominican Republic. Do you know what the limit is? Glenn Faegenburg: I do not. But I'm going to say that it's less than in New York. I'm going to say it's one year. Paul Edelstein: Wow. You're usually spot on and your rationale is correct and your time is very close. It's actually incredibly less than that. It's six months. Glenn Faegenburg: Oh my God. Paul Edelstein: Six months. That's right. Now see, that's the reaction. Oh my God. Glenn Faegenburg: Right. Paul Edelstein: Now any lawyer is going to have that reaction because six months is like ... for lawyers, maybe for clients, six months doesn't seem that short. But for us, as lawyers, you and I both know that's an incredibly short amount of time. Glenn Faegenburg: I mean, we have clients that often even don't know the extent of their injury, have no idea that they're badly hurt until down the road when all of a sudden they get an MRI, guess what? Everything's messed up and I need surgery. That may not happen in the first six months. And so this may be something that someone's not contemplating putting in suit at all during that period of time. Or it could be a medical malpractice case and six months for a medical malpractice case, I mean, it takes six months to get a medical malpractice case reviewed sometimes. Paul Edelstein: Yeah, that's right. And you can bring medical malpractice cases in Dominican Republic, as well. I'm not sure it's a six month statute of limitation. Glenn Faegenburg: Okay, I hope it's not. Paul Edelstein: For med mal here, but it is for a regular civil suit. And by the way, it wouldn't surprise me, I'll have to get that answer. But it wouldn't surprise me if it's the same statute for medical malpractice because that's in essence of civil lawsuit, as well. But regular civil lawsuits here, like if you're injured and things like that, that we deal with on a daily basis, that's a six month statute of limitation. So now you're right, number one, a person may not realize the extent of their injuries so quickly and feel like, hey, you know what? This is really bad. I really think I need to do something about it. But even if you had a plaintiff that was injured bad enough right away and felt like it wasn't their fault right away and said, wow, I'm definitely ... the next day, that plaintiff is saying, "Wow, this was not my fault. This is horrible what happened to me and I have a really bad injury. I want to get lawyer and bring a lawsuit." Even the plaintiff that does that the next day after an injury in the Dominican Republic faces a real big problem with a six month statue of limitation. And that is because, well, who owns the hotel that you're staying at in Punta Cana? Here comes the music, so here we go, it's a party here all the time. Who owns them? Really, I can't believe I don't have a Presidente. Glenn Faegenburg: It is 10:30 right too? Paul Edelstein: It is 10:30 in the morning and the bar is open and music is on. And I probably should have a cold Presidente instead of a coffee, but I'm working. Glenn Faegenburg: Right, I get it. I did see a fisherman go by. I will guarantee you that during this vlog, there'll be no fishermen going by me. Okay, that's a guarantee. Paul Edelstein: Probably not. Glenn Faegenburg: I'm seeing fisherman, I'm seeing bathers, it's very nice. I kind of want to just dive into the computer screen right now. Grab a Presidente. Paul Edelstein: This is definitely a good office setting, no question about it. Just getting going here in the DR and as soon as I'm done working with you, I'm absolutely going to get a cold Presidente [foreign language 00:15:22], which is really what you need here. A Presidente with the bridesmaid dress, that's the most important thing you get here. That would be a sheath of ice. So I can almost guarantee you that will be my reward for work here today. But getting back to the topic we were talking about, one of the first things you're going to have to think about as a plaintiff or a plaintiff lawyer, if you get a case from the Dominican Republic or any other foreign jurisdiction is you're saying, "Well, who is the defendant?" And I don't think a regular person really thinks that that's a complex question. Well, who am I suing? But here it's an incredibly complex question because the hotels have very sophisticated corporate structures. Many of the resort hotels here in the Dominican Republic are owned by Spanish companies. So now you're talking about various complexities in just figuring out, who am I suing? I'm not sure about the Hard Rock Hotel, but I know some of the other hotels in Punta Cana, the Bavaro Beach Hotel, the Cortecito Hotel, they're owned by Spanish companies who have a really longstanding relationship for obvious reasons with the Dominican Republic. They've been integral in helping develop the Dominican Republic, colonizing it obviously, and going through a lot of the complexity with that. But they now have a business relationship going on here. And so that means that many of the hotels that are owned here are owned by Spanish companies or the Spanish companies put ownership of those companies in Caribbean names. Glenn Faegenburg: And these countries all have different laws, all have different time limits. I know that we're big on common law in America, which means we follow case law and the development of case law. I know that they're bigger on black letter law in Europe, I presume Spain would be one of those places that is probably more along the lines of what they call black letter law, the law from the law books, as opposed to the interpretation. I'm not sure if that's right, but I think it is. Paul Edelstein: Yeah, I mean all of those things. But let's just take from a practical standpoint. So somebody walks in our office, either mine right here on... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/26521839

Pulling Back the Legal Curtain Episode 9: Sidewalk Hazards - Slip & Fall Cases and Who's Liable 03/09/2023

Pulling Back the Legal Curtain Episode 9: Sidewalk Hazards - Slip & Fall Cases and Who's Liable Paul Edelstein: Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts? Seems like every day we have these kind of questions and get asked them, so on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there and, hopefully, give you some answers, some interesting, some humorous, some surprising. Stick with us on pulling back the legal curtain. All right, Mr. Faegenburg. Good afternoon. Glenn Faegenburg: Mr. Edelstein. Paul Edelstein: Nice to see you. Glenn Faegenburg: Good to see you again. Paul Edelstein: It's been so long. Glenn Faegenburg: I know you're very far away. I miss you. Paul Edelstein: Yeah, it's been so long. I miss you as well. I thought we would talk today about snow and ice, since we've never seen snow and ice this winter, we haven't seen any, and we just saw some snow and ice and I had to freaking get the shovel out for the first time all winter. It was unbelievable. And I said, "Let me come in and talk to Mr. Faegenburg about snow and ice and then, by extension, cracks and things and trees and all these wonderful things that happen on sidewalks," because, as we know, you and I both live in Brooklyn. We- Glenn Faegenburg: Actually, it's another casualty of global warming is that there are very few slip and fall cases on snow and ice these days because there ain't no snow and ice to fall on. Paul Edelstein: I don't know who would say that's a casualty, I think people would be happy about that, but nevertheless, it is interesting that we hadn't had any, and then we had some. I'm going outside to shovel before I came to work, and of course, it immediately brings to mind, why are people shoveling, and you and I always talk about this, and, obviously, you want to make people safe, but people always ask me about falling on that and what happens and who's responsible. We get these cases all the time. You live in an apartment right now. I live in a legal three-family house. These things become significant. I come out there and my soon-to-be high schooler comes up to me and is like, "Who's responsible if I were to fall in front of the house right there?" And then I yelled at him to get back in the house, "Get out of here." All right. But it's a really good question. Who would be responsible for shoveling snow and ice when you wake up in the morning? I'm like, "All right. Clients come in and ask us this all the time." And I'm like, "Well, you know what? You think that's a simple question, right?" Glenn Faegenburg: That's exactly what I was thinking about how people, I think, when you hear the word slip and fall or trip and fall, I think they think that these are very easy cases that any lawyer you could hire could figure out a slip and fall or a trip and fall case because how complicated can it be? Someone trips on something and they bring a case, right? Paul Edelstein: Yeah, yeah, exactly. It wasn't that much snow and ice, but I did clear it. And then I got in the car with my wife and kids to give them a ride to school, and, of course, they asked me, said, "Well, what would happen if somebody fell in front of that?" And I said, "It's interesting that you ask that because I just cleared the snow and ice, but had I done nothing, I might actually not be responsible if somebody fell. And if I did something and didn't do a good job, I could be responsible. And, if it was still snowing, I wouldn't have to do anything. And, if it was less than four hours after the snow had stopped after 7:00 AM in the morning, which it was, I'm out there, it's 7:15 or something like that, and if the snow had stopped, I don't know, a few minutes before," I'm like, "I really don't have to do anything." They both were looking at me like I was crazy, and I'm like, "Let's just shovel the snow and ice and make sure nobody falls." Glenn Faegenburg: Right. It's so damn complicated. It's unbelievable that- Paul Edelstein: So weird. Glenn Faegenburg: And this is not something that somebody can just do themselves, a trip and fall case or something complicated, or even a lawyer who doesn't really do personal injury but says, "Hey, you know what? I'll do this because how hard can it be?" These are what results in malpractice cases, Paul Edelstein: Meaning lawyers messing them up? Glenn Faegenburg: That's right, lawyers getting sued for messing these cases up. Paul Edelstein: Exactly. Let's try to explain it. Let's say, so if a client came in and asked me that, because I apparently couldn't explain it to my wife and child the other day, I'm thinking, when I have to explain it to you, I'm a little more careful because you'll beat me up, verbally assault me, if I don't explain it well. Essentially, things have changed, okay, but things changed in 2003, when Mayor Bloomberg passed this administrative code, a new law. Let's talk about how the law is with respect to cases in New York, because that's predominantly where we see it, so in the municipality. And what Bloomberg did was he decided, "Hey, look, we want people to shovel snow and ice and fix their broken sidewalks, and even though we don't own them." I'm shoveling snow and ice off the sidewalk in front of my house in Sunset Park where I live in. That ain't my sidewalk, I don't own it, but I'm doing it and, obviously, I'm doing it because I don't want anybody to get hurt in my family or anybody. Everybody walks down my block to go to the subway. But, from a legal perspective, there is some responsibility to do it as well. Before Bloomberg passed this law in 2003, there was no code that covered it and it actually was the city sidewalk. How many times have you seen city workers cleaning snow and ice up? Glenn Faegenburg: Well, you know what? It's funny, I'm a little bit more cynical about the reason. You're like, "Well, we want the people that live next to these sidewalks to clean things up and take care of them." I think really what it was was the city got tired of paying out all of these sidewalk claims. You walk around the city, you see a lot of messed up sidewalks, and all of those are potentials, obviously, for accidents. They were obviously getting every single claim that happened before this law was passed. Every single claim was going through the city. And, actually, it was a combination of bad things. It was also terrible for the victims themselves because they would have to deal with the city to get a settlement, which takes, unfortunately, when you're dealing with the city, forever. They get extra advantages. You have to bring a notice of claim before you can even think about starting a lawsuit. They're entitled to their own deposition before you start. There are a lot of delays even before you start, and then you end up in some sort of part where it's all city people, all city cases, and your case just gets mired, and this is what was happening. People were not getting results on their cases. It was taking forever. And, when they did finally, pay was all coming out of the city's pocket. Somebody got the smart idea, you know what, maybe we should split the risk of maintaining the sidewalk with all the insurance companies that are ensuring all of these properties for millions and millions of dollars. Paul Edelstein: There you go. Awesome. Glenn Faegenburg: And it was a very good idea. Paul Edelstein: Yeah, our friends, the insurance companies, let's talk to them. Well, and the reason is here ... we're talking about our sidewalks. All the sidewalks are owned by the city. They're not the landowners like me. When Bloomberg changed the law, he then put the onus on the landowner and said, "Well, now you guys actually do have to fix it if it's in front of your house. We need to know who the adjoining landowner is." In my case, I'm the adjoining landowner of the sidewalk right in front of my house. Now the law mandated that I fix it and then I shovel snow and ice, but there is this snow and ice rule of two things, I guess, really it is. One is called storm in progress. If it's still snowing, you really don't have to shovel, and I do just because it's easier and everything like that. But, from a legal perspective, if somebody slips and falls on snow and ice in front of my house, or any of the city sidewalks really, and it's still snowing and hailing and things like that, they're really out of luck. Glenn Faegenburg: I actually think that that law makes sense, I think, because while the storm is still coming down, you're going to have just more accumulation anyhow, number one, and number two, you're putting people in harm's way potentially by sending them out into a storm to shovel snow. I think that there's good reasoning behind that, allowing the storm to be over for at least some time. Paul Edelstein: Okay. But the bottom line is, if you fall and get hurt on a city sidewalk in front of whatever it is, and it's still snowing at the time, you'd probably have a problem bringing a successful lawsuit just on that sterile set of facts. Right? Glenn Faegenburg: Absolutely. Paul Edelstein: All right. You might want to wait to fall until it stops snowing, I guess. Don't go out. That's what it is. But then you have this four-hour rule that you and I know as lawyers, which is a weird thing. And the four-hour rule basically says that the adjoining landowner, so it's usually a homeowner or a commercial building, has four hours from the time the storm stops to get out there and clean it up. And they also- Glenn Faegenburg: Unless it's nighttime, and then I think there's additional time. Paul Edelstein: You're so smart. You're always ahead of me. I was just going to say that. It's incredible. That's right. If it's in the middle of the night, the four hours really doesn't start. Four-hour rule excludes 9:00 PM to 7:00 AM, so the clock doesn't really start to run. Really, what that means is, when I wake up in the morning after a snowstorm, which just happened, and I'm out there at 7:00 AM to get ready to go to work, take these kids to school, and things like that, really you have a four-hour window from that period to shovel, technically, under the law. You have all these weird things. And one more weird thing to be thrown in the mix could be that, depending on where you are, there could be even a separate law. This is the general city law, but if you're in some smaller place, Staten Island, Poughkeepsie, Yonkers, some of these outer boroughs, Suffolk County, if we go to Long Island, that particular municipality could even have a different law, meaning you got to go get Mr. Faegenburg to figure this stuff out, because it's get crazy. Glenn Faegenburg: That's right. Paul Edelstein: And here I am thinking, snow and ice, it just should be so simple. Glenn Faegenburg: I think some places are 24 hours. Paul Edelstein: The rules could really, really vary. But, in the general overriding sense in New York, you do have this four-hour rule, this snow in progress rule, and this shifting of responsibility from the city, whose sidewalk it is, to the homeowners. But now let's take it even further. Somebody slips and falls in front of my house and I have this new law that says it's my responsibility and everything, or trips and falls on a crack in my sidewalk, and I go to you now, Mr. Faegenburg, and I go, "Wait a minute, man, this is my house. It is a single or two or three family house. Let's say it's that. That's where I live. I live in a limestone building. All right. And it's owner-occupied, I'm there, and it's not my sidewalk. I shouldn't be responsible for that snow and ice, or that crack, that this person got hurt on. Now what are you going to tell me?" Glenn Faegenburg: Well, I think that the law has been smart in a lot of different ways. The law said, "We want to make sure that these get cleaned up and we want to put the onus on the adjacent landowner and have insurance companies paying for this, but we don't want this to be a burden on people that simply live in their own house. They're single family owners, or maybe they have a tenant or two, okay? These are not people that have what we call deep pockets in the business, and we want to make sure that those people don't get taken advantage of." What the law says is that, if, in fact, you are one family or two family or a three family owner of a single residence, you're off the hook. You're not responsible for maintaining the sidewalk. Paul Edelstein: I love it. Glenn Faegenburg: You're not responsible at all. It then goes back to the city and all the requirements that you need in order to hold the city, and which I'll discuss in just one second- Paul Edelstein: Oh, yeah, that's complicated. Glenn Faegenburg: ... you need to do those again. But this is, once again, where you need a lawyer, and you need a good investigator, because it's not always so clear exactly whether it's really a three family. Is it a four family, okay? Is there someone living in the basement? These are the types of things you need to find out. In addition, any time there's any sort of commercial property on that property, it changes the game. You live in an apartment where you would actually be exempt if there was a defect on your sidewalk. I live in an apartment as well. My apartment is only two families, okay? It's less than yours, however, there's a business on the ground floor. Okay? Paul Edelstein: What does that mean? Glenn Faegenburg: Changes the game, okay? Now the adjacent landlord is on the hook. Paul Edelstein: There you go. See, very, very complicated set of circumstances there. Now let's go one thing at a time. Let's say now you've got a trip and fall on a bad sidewalk or something, or a snow and ice case, somebody gets hurt, and that exemption doesn't apply, applies rather. In other words, the homeowner's off the hook, you don't have them, and you're going, "Well, now it's the city's sidewalk. The adjoining landowner's not responsible because let's say it's a single family home occupied by the owner, so they have no responsibility to do any of this stuff." You could sue them, but you're going to lose. It's not their responsibility. You still have the city that could be responsible for a snow and ice situation or a crack in a sidewalk or something like that. Now you could still go after the city. What do you have to show for the city to be responsible in that case? Glenn Faegenburg: Wow. This is where it gets very, very difficult. One of the other advantages, besides dealing with private insurance companies now with most of these trip and fall cases- Paul Edelstein: Now I'm suing the city. I can't get the private insurance company on the hook from the homeowner because it's a single family home. I'm suing the city. There's a giant crack in the sidewalk. It's not the adjoining landowner's responsibility. Glenn Faegenburg: Constructive notice is another great advantage you get in a situation where you can sue the adjacent landowner. Constructive notice, it just means that the person should have known, okay? If something has been around for a long time, that's almost basically constructive notice. That's not true with the city, okay? The city, you actually need to show actual notice. Well, how am I going to prove actual notice? Do I get on the phone and call Mayor Adams and ask if he knows anything about it? No. Now, in the old days, there was a company called Big Apple Pothole Corporation. What they did, they basically went around to all of the sidewalks, or as many of the sidewalks in the city as they could, and they looked at all of these problems that they saw, uneven sidewalks, broken sidewalks, raised areas of the sidewalk, things sticking out of the sidewalk. These were all the types of things that they would then look at, and then they would mark with a certain code whether it was uneven or this or that. And then a plaintiff's lawyer, in the event that you had to prove actual notice against the city for a defect on the sidewalk, could then go to this company and say, "Hey, you have this map for this particular period of time, can you send it over?" And, if it showed that there was a defect in that area, that means that the city was given written notification, because they were sending notices to the city about every one of these defects. The problem is that company went out of business, it doesn't exist anymore, so that doesn't really exist. Really, the only way now to find out whether the city would have actual notice of a defective condition on the sidewalk is to look at prior, what they call, notices of claim, prior claims, prior lawsuits, okay? Because you could establish that they knew, in writing, about a condition, if another lawyer had [inaudible 00:15:49] a fall, it has to be the exact same spot, in the exact same spot. If they fall in the exact same spot, you have actual notice. It's almost like throwing a dart at the wall and you're not a dart player. You just don't know whether you're going to hit it. You can have someone with a broken leg who tripped and you don't have the actual notice and then you can have somebody with just a sprained wrist or whatever, and they would have actual notice. It's not dependent on the size of the injury or anything like that. And, without that actual notice, you don't have a case. Paul Edelstein: All right. Let's recap this for a second. Now, in snow and ice cases against the city itself, you're never going to have that because it's just never going to be actual written notice with enough time for the city to clear snow and ice. It almost just never happens, so you could just forget that, that's really unlikely, a successful snow and ice case against the city and the city sidewalk. You're really looking to the adjoining landowner in those cases, and under this new statute, and you're hoping that the adjoining landowner, if you fell there, is not a single, two or three family owner-occupied house. And we've had whole lawsuits that the fight was just that, was this a one family, is it a three-family or whatever? Glenn Faegenburg: But now I have to throw something else in there, cause and create. Paul Edelstein: No. Don't go there yet. I'm just trying to sum up here Glenn Faegenburg: Don't go there, okay, okay. Sorry about that. Paul Edelstein: All. In a simple case, that's what you're looking at with snow and ice. In a simple sidewalk case, same thing. If the adjoining landowner is exempt from responsibility there, because they're a single, a two or a three family, then you're just left with the city. And, in order for you to get the city to be responsible for some kind of sidewalk defect, you're going to have to show that they had actual written notice of that defect, which, as you just explained, is complex. It can be done, but it's not easy to do. Those are your standard, typical cases. Now you just mentioned something to make it further murky and complex, which is cause and create. Now what you're talking about is, and this could be the same thing, a snow and ice case or a sidewalk defect case, everything we just said could go out the window if you find somebody that caused or created the condition. That could be you shoveled the snow and ice and made a condition worse. Something refreezes, something happens like that. What you did actually created a... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/26179515

Pulling Back the Legal Curtain Episode 8: Discussing Governor Kathy Hochul's Veto of Grieving Family Act 02/08/2023

Pulling Back the Legal Curtain Episode 8: Discussing Governor Kathy Hochul's Veto of Grieving Family Act Paul Edelstein: Hello, welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. Seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. Okay, Glenn Faegenburg and me here again this morning. So Glenn, come in this morning, get on the train, read my emails. I see that our Democratic Governor rejected the Grieving Family's Act, which sent kind of shudders through my spine because that's like, it was an old movie I saw once. It was like, you're against widows and orphans because that's what it sounded like to me. How could you veto this? So I was like aghast and I couldn't wait to get in and rap with you about it. And then at the same time, I was so aghast and quite frankly pissed off, that after I read what she said as to why she rejected it, that I'm like, "Okay, I got to stop reading this." Let me go to my salve, my bomb, that calms me when I'm on the trains every day, our favorite paper, the New York Post, which is obviously biased in a number of ways. But some of the ways they are super biased, I like. So I'm like, "I'm going to read The Post." And I was just curious. I said, "Wow, I wonder what The Post has to say about the Governor rejecting this law that nobody could possibly be against." Let's put it down. The Governor rejected a law that anyone that understood it would be like, how am I not for that, right? So I'm like, "What does The Post have to say about it?" And I couldn't find it in The Post, just not reported in the Post. So I said, "Well, let me go the other way and go to that liberal left newspaper that I read also, when I'm not on the train and have time to actually think, The Times." So I went to the New York Times, didn't see it there. So I'm like, that's weird, right? So then I go to the Daily News, that's got to be everyone's third option these days, right? And it's not there either. So then I get on my computer, and other than trial lawyers and the legal papers commenting on it, every single legal site, Law 360, ALM, obviously the [inaudible 00:02:55], they're all commenting on it because it's a big deal, but the newspapers aren't. So I was like, I got to see what Glenn thinks about this. And I did. I came into office and I was completely incensed. It's an outrage. It's the most transparent political denial of something I've ever seen. I'm outraged. Any human being would be outraged. I can't understand this. I don't want to read it. So I of course go to my more intelligent partner and go, "You're going to have to explain to me why we shouldn't be picketing outside of Albany and people shouldn't be calling for the removal of the Governor since we removed another Governor for some other stuff." But now we got a Governor that's against dead children and dead people that don't earn a lot of money. That's really what it is. So help me out. Glenn Faegenburg: Well, I think, actually I agree with you, we should be picketing. But let's start with the first thing that popped into my mind was that you and I gave a lecture on wrongful death, and this was six or seven months ago. And at the time we were like, "Well why are we even doing this?" Because with the Grieving Families Act being proposed, we knew that they were going to change laws that were going to allow people to recover in a manner similar to the rest of the country and not just based on economics. So- Paul Edelstein: We were wrong. Glenn Faegenburg: We thought it was a fait accompli, but we did the lecture anyhow. And now it turns out that lecture is as valuable as it ever was because they haven't changed the law. And this is just a perfect example of how the political processes destroys people's rights sometimes. And in this case, that's definitely what I think happened. The political processes, was that this was something that was universally passed by the house and by the Senate. This was something that state talking about state, of course. And it was by a vast majority, Republicans, Democrats alike. Everybody was on board saying that we have an archaic wrongful death law. It only helps people that have income. So by its very nature is discriminatory against children, against seniors, against people of color. It's so outrageous and so that the legislature and all the politicians saw that as saying, "Listen, this is something that really, really needs to be changed." And now we have a Democratic Governor. This is just something that this is a no-brainer. Now what happens? Paul Edelstein: Wait, wait, wait. Glenn Faegenburg: It's pretty obvious. Paul Edelstein: Wait, wait, wait. Before we get to what happened, because you have the nitty gritty detail, and I want you to explain it because you had to explain it to me because I was like, "Are you freaking kidding me?" And you're like, "Let me tell you what happened." Which is usually what happens. I come, I get all pissed off and excited about things and I go out of my mind and you're like, "Take a deep breath. Let me explain it to you." So you did. But before we get there, I just want to ask you a question. So you're a lawyer and you are good at this, right? So imagine this situation, I'm riding in a yellow taxi with a gazillion dollars worth of insurance. I guess it can't be a yellow taxi. I'm driving in Donald Trump's Uber, okay? And I'm riding with my wife who right now is, takes care of the house, doesn't earn an income, but she certainly does more than me probably, but no income. I'm riding with my two young children, who are in school and I'm riding with my elderly mom who is retired and doesn't make any money. And well, I could be in a yellow cab, let's keep it in the yellow cab. Donald Trump himself or the equivalent of him, somebody unbelievably wealthy, uber wealthy, runs a red light drunk, kills us all, instantaneously kills all of us. We're dead immediately, all five of us. And now my surviving brothers come to you in the office and go, listen, "We got to sue the shit out of Donald Trump. I am angry. We got to sue him for killing these people. And what kind of case do I have, Glenn?" Tell me. Glenn Faegenburg: Sadly, you are the only one with a case pretty much in that situation. Now, I will say the law is starting to get a little bit more the way the cases are being interpreted, not the law, but the way the cases are being interpreted, judges are having some pity on these short windows of pain and suffering before death and are giving some reasonable numbers. For the most part, the recoveries are very, very small. And the only one who would be entitled to recovery was you because you had the money. And one of the examples that they use is the Limo case out in, these were young people, there wasn't a lot of income and they died very, very quickly. And that's the perfect example of the family should be entitled to have some sort of redress for that. And it's so drastically unfair that they don't, and they talked about the Tops shooting in the market up in the Bronx East were people of color that were all killed and many of them without substantial income. Paul Edelstein: And they're not making a lot of money. This law, if the Governor had signed this law, and now I walked in your office the day after she signed it with the exact same case, me, my wife, my kids, my elderly mother, now what kind of case do we have? Glenn Faegenburg: I think that you all have, you probably still have a stronger economic claim, but now you all have a case. Paul Edelstein: Everybody has a case. Glenn Faegenburg: Everybody has a case. Theoretically, you should all basically be very, very similar. Paul Edelstein: So now you got to explain to me why I'm so angry, who could be against a law that makes that change and makes it equitable that everybody's sitting in my car. I have some black and brown people in my car too, by the way, my family members that don't earn a lot of money. Let's make it not kids. I've got some guys that for whatever reason, don't make a lot, okay, maybe it's race, maybe it's not, who cares? Their case is not much of a case with the law that's in existence. So how could somebody be against changing this law? And apparently almost all the members of the House and Senate in New York, even the Republicans were in favor of passing it, except our Governor said no. How? Glenn Faegenburg: Well, you asked the question who? Okay. And that's really the big question. Who? Insurance companies. That's who. And that's exactly who killed this bill. There's not even a question. Paul Edelstein: Wait a minute. No. The Governor said, no, wait a minute. Wasn't it the Governor? Glenn Faegenburg: No. Paul Edelstein: She wrote a big letter that said all these nice complicated things that I read and laughed. Glenn Faegenburg: Right. To all the people that I'm screwing to the people, the Tops family, the Limo family that I've met before. Sorry, but the interest of the insurance company has become more compelling to me than the interest of the people of this state. To me, that's the message that it sends. And it's a horrible message. But there's no question if you read the op-ed, what she's talking about is the reason why she doesn't want to pass it is because it potentially is going to cost too much money to the healthcare industry and obviously there are insurance companies involved in that and potentially too much money to what she called stakeholders. Whatever that means. Okay. I presume that means people that may have to reach into their pocket. Paul Edelstein: So wait, so let me boil this down. Glenn Faegenburg: You make good on killing people. Paul Edelstein: So that means the Governor is saying, I'm against dead widows and orphans and children and people that don't make money. And I am for stakeholders, right? That's what that is. That's really what it is. You don't really need to know more. Now there is, there's some more detail, but I understand that about the retroactive aspect of this law and who would be defined as a family member that could bring a lawsuit or not. And you know what Glenn, I know you know all those details. And you know what? I don't really want to hear it. I don't because it's all bull. Okay? Because it comes down to the core issue here of who was on one side and who was on the other. And on one side of the table was every single person in the state of New York, regardless of your color, your age, your employment status or whatever, would all be treated the same in the event that somebody kills you by their negligence and actually has enough insurance to pay for it. Because you and I both know how many people have come to our office with death and catastrophic injuries and we've had to say, "We're not getting you any real money because there's no insurance." So these type of cases are only ones where somebody was killed by someone's negligence and there was fault. And there's a ton of insurance. There's not a lot of those cases. But on the other side, apparently somebody was influential to say, "This is going to really hurt us business-wise, this is going to cost us so much money." So let's make sure all these dead people don't get compensated properly like they are in every single other state, right? I don't think, I'm not sure, but I think we are the only state left with this ridiculous wrongful death statute. Glenn Faegenburg: I think it's 48 out of 50. Paul Edelstein: So that's why we need you for the accuracy. Glenn Faegenburg: That's right. Paul Edelstein: [inaudible 00:11:51] ranting. Glenn Faegenburg: The whole thing is just ridiculous because what she did at the very end, so now by the way, this was passed in June. So from now, from June until November, nothing is happening. It's just everyone's talking about it. Is she signing? Oh, of course she's signing it. Well, why is that sitting for so long if she's signing it? And nothing's happening, nothing's happening to change the bill. She's not saying, "I don't like the bill the way it is." And then all of a sudden she says, "You know what? I just want it to be the kids and no med mal. All right?" And take it or leave it. There is no room for negotiation knowing that that's going to get rejected, knowing that the whole, she can then kill the bill, but at the same time say, "See, I was for the kids." This is the type of politics that goes on that ends up taking rights away from the citizens of the state. Paul Edelstein: That's so funny. That's so funny that you say that because I explained this to my kid because this is now two days later. I had to simmer down yesterday. I'm still simmered up apparently, but I explained it to my kid over the dinner table because I was so outraged. So it was a discussion at our dinner table last night. And you know what my kid said, my 13 year old kid said when he was explaining this, which is totally understandable, he said, "That doesn't make sense." Right? Because to a 13 year old, the money equation, the influence equation doesn't register, and it's just the equity of the situation does. Glenn Faegenburg: By the way, I also just put, because I'm sure there are some people that are going to watch this to say, "Well no, I'm sure it will cost more money, blah, blah blah." So the insurance lobby hired a tort reform think tank to show why this economically would be, and they have a long record of being biased and for tort reform. And often their data is flawed. NSTLA hired, which is the New York State Trial Lawyer Association, they hired an actuary, a certified guy to go through all the math to explain, "No, this is not something that drastically expensive." We were just saying, these death cases, they are one offs, they don't happen, thank God, they don't happen that often that they're going to drastically change the massive finances involved in court litigation. It's ridiculous. Paul Edelstein: All you have to do to know, to understand that you don't have to be an actuary, and do a study. All you have to know to understand what a ridiculous argument that is, because we're at the ground level of this as a lawyer, for these cases to be cases that yield millions of dollars, you know what, when someone dies, three things have to happen. You have to have the death, obviously. And that happens, there are a lot of deaths obviously through accidents. But you have to have fault, has to be somebody's fault. That's not always the case when somebody dies, has to be fault. And then the party that's at fault has to have significant insurance, which is rare. You don't see a lot of cars with 10 million in insurance and all this kind of stuff. It's just, it has to have all of those circumstances. So this bill not getting passed is just going to punish, only punishes those innocent people that are killed through someone's negligence, not their own. Okay? It's a deep pocketed defendant. And the person that unfortunately was killed was in between jobs, I don't know, was a student. Glenn Faegenburg: The person killed is usually one of the more oppressed people in our society, okay. Paul Edelstein: Because they're the ones working. Glenn Faegenburg: Seniors, it's going to be people of color, it's going to be children, it's going to be the people that are least in the position to protect themselves. They're the ones that get screwed by this. Paul Edelstein: That's right. Wow. So you know what Glenn? What could we as trial lawyers, and here's what I want to like besides ranting and raving and trying to educate people, which we do all the time, but we reach the seven relatives that watch our podcasts get to see this, right? But I don't even know what to do. For me as a lawyer, I want to sue somebody. I'm so mad about this. Can we sue somebody for this? Glenn Faegenburg: I think what you have to do is you don't take your foot off of the gas. So I think that the powers that be, and that's the North State Trial Lawyer Association, I think has led the charge with respect to this bill. They have to now stick with it and propose another bill. And presumably it would have to be a slightly different bill, probably more watered down than the one that's currently out there and see if she would be on board because she said that she's on board with signing something. Okay. Paul Edelstein: She's on board, she's on board. Glenn Faegenburg: On signing something. Okay. Paul Edelstein: She's on board. Glenn Faegenburg: It has to be the most minimal thing, I think that at this point, or you wait for her potentially to be voted out, and I don't know if that's going to happen or not. So then this could be another 10 year wait before this is even back on the board. Paul Edelstein: Ridiculous. Because it's not even an issue. So even in a reelection, nobody really cares about the tort reform issue. She's not going to take heat for that. And you know that because it didn't make any newspapers. It's not an issue that, it's an issue when we talk to regular people, they are like, "What?" How many conversations, by the way, have you and I had in, I guess we're almost 30 years in practice, almost 29, or you're probably 30, how many conversations have we had in all this time with people explaining the wrongful death statute? I mean, can that, and when we're explaining that, we're explaining it to some family members who've lost somebody right from negligence and we're like, "Well listen, you're not going to believe this one, but we have to prove that your relative. Glenn Faegenburg: Priorities, the thing that makes the front of every newspaper is how lawyers can't get into the garden, right? Paul Edelstein: Okay. Glenn Faegenburg: 10 people can't get into the garden. Who really cares? At the end of the day, this is something that affects all of these people, all these citizens of New York State, something so important to the law and it gets no mention whatsoever. Zero. Paul Edelstein: That's ridiculous. You know Glenn, I've had enough. I thought calling you up and talking to you about this on camera would make me feel better. I really did. And you know what? It's not, you did a great job. You're really smart. You're really nice. You're not really angry. I love that about you. But this sucks. I'm mad. There's not a thing I could do about it except yell and scream. So that's it for today, see what happens next week. Glenn Faegenburg: All right. Paul Edelstein: Later. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glen, because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website@edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/25869912

Pulling Back the Legal Curtain Episode 7 (Part 2): Reform the Police Featuring Alex Vitale 02/02/2023

Pulling Back the Legal Curtain Episode 7 (Part 2): Reform the Police Featuring Alex Vitale Paul Edelstein: So how come the message isn't getting out in the media? So like, look, we're recording this now. It's January, 2023, and I watched a lot of your recordings. It's amazing because a lot of your interviews like this on this topic, go pre covid, not all the way through. Why are we seeing the message even now? So now we're in January, 2023, and when I still read the news every day or talk to jurors and I talk to a lot of jurors, I still don't get the message that I would disseminate on this topic, and I know that you would. I'm still getting resistance, like defund the crazy and I want to go the other way. And that seems to be even like my parents, if I talk, they're older. So as we age, I think it's natural that we get a little bit more conservative and a little bit more concerned about safety. And so even my parents, who I would say are pretty liberal and very educated, when we first broached this topic, were taken aback, whoa, what do you mean? And then I had to really explain and say, well, here's what it means, and now what do you think? So I don't know. Has the perception of this issue changed? You think from 2020, George Floyd, obviously that really sparked a lot of this. I know you've talked about that a lot, but now we're in 2023. Have you seen a change? You've seen it at the micro level because you are so knowledgeable. So what's going on in local levels and governments and changes in schools? I'm talking about the street level. Alex Vitale: Yeah. Well, I think we're both talking about the street level, but I think we're talking about some other important differences. There's happening in the communities that are actually the most heavily policed, which does not include your parents' community, for instance, although there are plenty of people in those communities who have come to rely on the police again, because of this false choice of police or nothing. But there is now a newfound openness to this idea that we could have something other than policing. The media are not representing the interests and desires of poor people of color in general. Their advertisers, their political worldview is shaped by the same people who don't have a plan for homelessness, who don't have a plan for mental health services, don't have a plan to fix the schools, but want to invest more in downtown real estate deals instead. And so the media reflects that worldview, and they have a profound kind of anti populism at the center of their politics. They rely on government experts and other kinds of experts to shape their discourse, and they don't really care what young people in East New York have to say about these issues. In fact, they think that whatever those people think, it's almost certainly wrong. And so we are not going to get help from those sectors. The campaigns that make progress are rooted in community organizing. They're holding meetings, they're going door to door, they're standing in front of shopping centers at a table with a clipboard, and they're having those conversations with people about what they could have other than policing. And when that organizing is taking place, we see them win victories. Paul Edelstein: That's amazing. So you are out there though, and in the mainstream media, you are really, really visible now. I mean, you're really pretty highly into Matt. So are there other guys getting out there with your visibility that are, instead of supporting this issue? Alex Vitale: My visibility is not really in the mainstream media anymore. There was an opening in 2020 when I was on every show under the Sun because they didn't know what was going on. And everyone was like, well, this guy literally wrote a book about it. You could talk to him. And as soon as they figured out what it really was, they said, oh, actually we are against this and we are not going to treat it favorably. And that all that mainstream media attention basically dried up with an occasional exception, an NPR or an P b s appearance or something. And there's very few voices that have access to the mainstream media right now who share these ideas because it's not that they're not interested, it's that they're against it. So there are lots of great voices out there other than me and mostly people who come from these highly police, high crime communities of color, people like De Pernell, Andrea Ritchie. There's tons of these folks who've experienced what policing really is and who've known what violence is in their lives, and know that policing has actually often made the situation worse for them, not better. And I think it's important that those voices be centered. So definitely no one should choose me over them in a sense. I help out where I can, but there's a movement. There are national conversations, national convenings, people are sharing ideas, and there are a lot of voices out there that are available. But I think all of us understand strategically the priority has to be supporting local organizing, not trying to get on the editorial pages of the Washington Post. Paul Edelstein: So again, you're really advocating bottom-up. That seems really, really, really hard. Although I got to tell you, Alex, although I got to, well, got to say it does align with one of my personal beliefs as a trial lawyer for all this time. We always believe, I always used to say, well, I'm going to try to convince eight jurors at a time of something, and then they're going to go talk to eight spouses and eight people, and it's going to go exponentially out. Look, if I have a regular automobile case, I get it. That's not an issue that affects the community. But I have other cases, and we just had a wrongful eviction case on Friday that resolved, and we really felt like we did the right thing. I've had a number of police cases. I had a very prominent boxing case. I know you knew about where we effectuated some changes. I really had a legislative level. So I kind of feel like, all right, as a trialer on one person, but I could maybe make a difference as if I throw a rock in the water and I see these exponential rings come out for it, it come out from that one pebble in a pond. It could reverberate. Alex Vitale: I think one of the challenges here is these groups do need legal support, and there are organizations like the Advancement Project and Civil Rights Corps and local groups like the Detroit Justice Center who are attorneys who are looking for potential impact litigation or even individual cases that can help advance the community agenda. Now, that doesn't mean that every individual 1983 attorney needs to turn themselves over to some organization, but I think there needs to be some communication happening in part because these individual cases sometimes result in settlements, and those settlements sometimes include procedural demands of these police departments. Paul Edelstein: I've never been successful. Ever. Alex Vitale: Yeah. Well, New York is, New York is a particular tough nut in this regard because they have an army of people who are there to prevent that. But of course, the Floyd case did around stop and frisk did bring about substantial procedural changes. And I think that we need to have more of those conversations about whether or not the attorneys are in addition to acting in the best interest of their clients. Thinking about that in a more holistic sense. These clients live in communities. They're not just individuals and what will make their community safer will make them as individuals safer. Paul Edelstein: That's great. I wish that that was easier to happen. And that lawyer's hamstrung sometimes by having to represented individual client having the obligation. That's our primary obligation, secondary obligation is all right. It effectuates some change and hope you get that through the slog of litigation, which is really hard. But I've gotten to the end of litigations where I've said, yeah, I, well, I want to see something done. I can give you one example, Alex, that might resonate with you, a police chase case where somehow, I won't tell you how, but I was able to get an internal memo from the N Y P D regarding what their rules were with chasing the internal memo was so damaging to this particular case because obviously these officers completely ignored it. And I had it, and I had it in a redacted form, and I was going to use it with them. And I said, well, at the end of the case, which we were successful on, I said, well, I also want another internal memo sent out, and I want this next internal memo to say the following did not. Alex Vitale: But of course, another way the private bar has been helpful has been in things like discovery sharing, discover the results of discovery. And for me, one of the frustrations about some of the settlement agreements that even groups like the A C L U enter into is confidentiality, Paul Edelstein: But not with the municipality in New York. The municipality is not allowed to have it confidential. So I don't think you're going to see that with New York or how. Alex Vitale: Well, not the settlement agreement, but the discovery. Paul Edelstein: Oh, that's true. That could be right. Alex Vitale: Yeah. So we want the discovery. We want to see those documents important. Paul Edelstein: That the check they wrote. Alex Vitale: That's correct. For those of us who are involved in these public policy conversations. Paul Edelstein: Well, Alex, you're welcome to come to my office and rifle through all of my files. Alex Vitale: I'll maybe send one of my grad students over. Paul Edelstein: Absolutely no. Alex Vitale: But that there's some hot leads. Paul Edelstein: If I haven't, I mean, the police cases for the most part, just from a ground level, what we see most in around the police are excessive force. We see a lot of injuries from chases, obviously. I mean that, by the way, we see a lot of injuries from Chases. I've represented a lot of police officers, their passengers in their vehicles get hurt. Alex Vitale: It's one of the leading causes of death of police officers. Paul Edelstein: I was just going to say, I knew you would know the statistics. They get hurt and are killed far more often in vehicle accidents than they are with anybody shooting. But what's interesting, I've never heard that on the media ever once in my life. Alex Vitale: It's rare. It's rare. It's just, and it goes to a larger point about how we misunderstand these issues of public safety and risk. Employers who steal wages from their employees by not paying overtime, faking the time cards. That's worth five times more than all property crime combined. More people die from gun accidents than from homicides. More people are killed by air pollution than they are by gangs. So we got to put these things in perspective, and we've got to think about public safety more holistically. And by redefining public safety in this broader sense, it makes even clearer to people how inadequate a tool policing is to really make us safe. Paul Edelstein: And that's amazing because every single statistic you cited there, if we went to every guy on the street and said, what? Choose which one you think is, they're going to get the wrong answer. Alex Vitale: Right? Every Paul Edelstein: Topic. Alex Vitale: That's right. The people are terrible at assessing risk. And of course, the media bear a lot of responsibility for this. You can watch an episode of Law and Order 24 hours a day on television somewhere. But where is the show about the impact on corporate environmental pollution? There are no shows like that. Paul Edelstein: It's also not criminalized, is it? Either, isn't it? Alex Vitale: But it doesn't need to be criminalized, but it does need to be addressed because ultimately, it's a political problem. It's not a criminal justice problem. We have written the regulations a certain way. We have used tax incentives. We have failed to develop alternatives, and these are ultimately political problems. And the same is true for policing. Paul Edelstein: But Alex, you have such a positive outlook on this after five, and I'm definitely not a cynic me as well, and I'm obviously a big believer. I'm extremely passionate in trying to effectuate social change and civil justice change. So I'm a pretty positive guy too. But this what you are asking to do or trying to do, even on a micro policing level or yours, you really go broader than that, which I think is awesome. And I love talking about it, but I find it as a New Yorker and sitting here right now, I'm like, wow. H how in the world is that going to happen when I'm watching chaos on the congressional floor where people can't even elect a leader? H how in the world are we going to change the messaging of these topics which affect everybody far more greatly on a daily basis? I don't know how you do it. Alex Vitale: Yeah, I don't have a simple solution for this. I mean, we are up against huge powerful forces here, and I guess sue them. Paul Edelstein: Sue them. That's one way. Alex Vitale: Well, that is one way, but it has to be done in a way that has some reasonable chance of producing the actual changes we need. And just bringing a lot of individual wrongful death cases. Just hasn't done that. I know. So we've got to think outside the box a little bit here. And I think we have to do a better job of integrating those personal injury cases with these larger movement demands. Paul Edelstein: So how do you do that? How does a street level lawyer like me, if I got a case and I say, wow, all right, well, this guy's hurt and deserves compensation, but I think there's a bigger issue here, and I want to do something about the bigger issue. So give me a practical advice. You, by the way, probably call you. Alex Vitale There are some people in law schools around the country who are doing this work and who are much more knowledgeable about this in a procedural sense than I am here in Brooklyn. Jocelyn Simonson at Brooklyn Law School has a clinic where they're exploring these ideas, and there's great folks at Yale, at Vanderbilt and other places that I've met with who are trying to think this through. So I understand that historically, this idea of representing the best interests of the client has been perceived to be a big roadblock in bringing in these larger considerations. And that's why I mentioned this idea about what's also in the best interest in the client is living in a community where the risks of police violence are dramatically reduced. And you can't say, well, we want the police to quit stopping our client because they don't know. Paul Edelstein: That's right. Alex Vitale: They don't know. So then we have to think about community level effects. If the goal is really to protect our client and to bring long-term relief for them, then maybe we need to think about what the community effects are. And we have to look at it obviously on a case by case basis. What is the underlying issue that was driving the police response in the first place? And what could we do that would be a credible alternative to that? Paul Edelstein: Well, in that last statement, I think most people would say, well, retrain them. Do this, do that. But now I know from the Floyd case and from all these other cases like those, George, the police in the George Floyd case, they had body cams, they had all this training, all the stuff, it didn't matter. That's not the solution. Alex Vitale: It's not the solution. So that's what I've been trying to evangelize about is that we need to look at how to not fix policing, but develop alternatives to policing solve our problems in other ways. It's not that we don't have problems to solve, it's that we're using the wrong tool to solve them. We're using a tool that doesn't work very effectively and causes a lot of damage in the process. Paul Edelstein: But that's like telling somebody, well, you know, got to get away from using that hammer on the nail. I got a better way for you to put that nail in the wall. Alex Vitale: Well, it turns out we do. We've got these air guns that professional carpenters use that are much more efficient than hammers. Paul Edelstein: I knew you'd have an answer, Alex, you're horrible. Alex Vitale: So there are analogies here that are worth pursuing. That is not the only possible tool. Paul Edelstein: Good answer. You're a tough witness to crosses, Adam. I knew that. So look, let's get away from that for a second. I have a completely different question for you. Okay. You asked me and said I, oh, may maybe ask me something that I haven't been asked before. So you live in Brooklyn, you've lived there for a long time. So I'm curious, with all of this knowledge, all your interaction with policing and everything, have you had any personal encounters with police? And what was that like for you? Have you've been pulled over? Alex Vitale: It's funny, obviously my wife, Elizabeth, and we have had interactions with the police around traffic stuff. And she says that her experiences have been universally negative. And she says, if me as an upper middle class white woman has almost entirely negative interactions with the police, what must it be like for a 25 year old black guy in East New York? So I don't usually talk a lot about my very personal interactions, in part because I've been working with police all over the world for 30 years. And so I've had all kinds of interactions and have seen police at their best and their worst. And to me, it's just not about that. It's not about that. Okay. Paul Edelstein: Let me ask you a different question now. So you've been all over the place. That's interesting. And I know you've been called in as consultants since in, I mean, my gosh, you probably can't even name the amount of countries and cities at this point. Have you seen differences in policing in different countries, different areas that you would say, wow, this area is doing it a little bit better? Alex Vitale: So it's countries get the policing that they want? None of this is an aberration. So there are countries who don't want to use police in the way that we use them. So for instance, in Portugal, they just decided that drugs were a public health issue, not a criminal legal issue. And so they just got the police out of the drug business. There are no more narcotics units. There are no more buy and bust operations. It's a public health issue. If the police happen to arrest something, and drugs are part of the dynamic, they make a public health referral. Paul Edelstein: Has it worked? So what's been Alex Vitale: Yes, the result has been a reduction in overdoses, a reduction in transmissible diseases, and improvements in community conditions. And I was just in Lisbon this summer, and you can see the positive differences. And the Portuguese police have been encouraging their European counterparts to follow suit. We're seeing it with the legalization of marijuana in the US and in Oregon. Voters even voted for broader decriminalization of all drugs at a low level. That's still being rolled out. But I think it's potentially a great model. Other countries have decriminalized sex work. The police, they got rid of the vice units that just, it's a business. And when we take it out of the shadows, out of the black market, we reduce the harm. We reduce the likelihood of trafficking, we reduce the likelihood of violence. In Europe, they don't put police in schools. I mean, they think we are crazy. They would never do that to their own children. Yeah, Paul Edelstein: I agree. But you bring up the drug reforms in this country and the sex work reforms in certain other countries and decriminalization of these things. That's interesting for a couple of reasons. One, in support of all these issues you're talking about, but two, in support of sort of a fundamental change in the way people think, because I think... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/25810551

Pulling Back the Legal Curtain Episode 7 (Part 1): Divest the Police Featuring Alex Vitale 01/19/2023

Pulling Back the Legal Curtain Episode 7 (Part 1): Divest the Police Featuring Alex Vitale This is a rare treat, all right? Well, for me to record it, it's a rare treat. It's not a rare treat for me to get, for me to get to talk to this guy. But we have today, professor Alex Vitale and I'm gonna give him a little introduction. He is a professor of sociology, coordinator of the Policing and Social Justice Project at Brooklyn College and CUNY graduate Center, visiting professor at London South Bank University, been writing for 30 years about police departments and human rights. He has lectured from Harvard University to London to South America. I'm sure everywhere in the world. He's also lectured to me in various bars and dinner tables. And most recently is the author of a book "The End of Policing," which got incredible notoriety. And if you ask me, was probably the impetus for the defund the police phrase, which Alex neither created nor I think really loves that much. Is that right Alex? Yeah. I wouldn't say the impetus for it. I think, the movement had its own motivations, but not a lot had been written. And so my book became a way for people who weren't already part of the movement to try to figure out what the hell this thing is. And that phrase is not something that I had ever heard before. And it's important in some ways, because it's signaled a rejection of traditional police reform and it said we should go where the money is. This is about too much policing. So in that way it was really important. The downside was, is that it's only half the equation. It's the kind of negative half of the equation and doesn't communicate all the positive aspirational desires of the movement about creating new ways to produce public safety, new infrastructures. And so I think that hurt the movement in some ways. Yeah, you know what, Alex, I wanted to ask you and I think we've talked about it. So that phrase, when anybody, anybody, no matter where you lean on the spectrum of what you think about policing and what needs to be done or not, when you hear that phrase, you can't help, but at first, if you're not knowledgeable about it, go wait a minute, that sounds like a bad idea, right? So that's what everybody thinks when they hear it at first. Then when you learn about it a little more, you're like, I think you you go to another phase and you go, wow, wow, wow. Now that makes sense. Some of it makes sense and I'm open to debate about that. But then the third thing happened, this phrase sort of had three lives that third life I think was it then got weaponized by people on the right side or people who didn't wanna do this and politicized, and really effectively, what do you think about that? Well, it got weaponized by people with political power who have come to rely on policing to fix their political mistakes. That's the way I think about it. And the fact is, is that elected officials in both parties big city mayors, state governors, the feds, they don't have a plan to do anything about homelessness. They don't have a plan to really address the opioid crisis. They don't have a plan to deal with the huge numbers of people experiencing mental health crises. They don't have a plan to fix the schools and they use police to manage the consequences of their failure to have any real plan to address these problems. And so they need police to make all their other deals possible. And so while they intellectually understand that policing doesn't really produce justice, isn't really producing public safety, what it is doing is it is managing problems in a way that allows them to maintain their power plays. Right, so I think, so you're a politician at any level, lower state level or even higher, now you've weaponized this defund the police phrase and said, well wait, I'm gonna go against it and that's gonna help me garner votes because if this fear-based factor out there people are gonna be scared if I go against the defund, but course don't defund, more police, more funding, people are gonna vote for me, I'm gonna stay in power. But again, it doesn't really solve the problem. I think that's kind of what. And it also didn't turn out to be true politically. If you look carefully, right, the state that fared the worst in the national elections was New York. And that was the state where moderate Democrats did everything they could to embrace right wing talking points about crime, where they completely capitulated to the most conservative views about this. And the result was a lot of people just stayed home. And that allowed Republicans to take like a record number of seats away from Democrats in the congressional elections. And in states where there were progressive Democrats running who embraced new language about how we produce public safety, those people won. The squad is getting bigger, so to speak. The progressive left in Congress is getting bigger and the conservative center of the Democratic party is shrinking. Adams here in New York came under a lot of pressure for undermining the Democratic party with all this pro policing tough on crime talk. 'Cause it just plays into the Republican game plan. Yeah, it's funny, and I know you're lecturing with Mayor Adams in another week or so, right? You're gonna be on The Scene. Not with him, about him. Well, so if you sat down, if you sat down with Mayor Adams right now, he's on his reelection campaign, let's fast forward. And he's going, all right, I'm running for reelection and I want some advice from you professor Vitale about this issue, this defund the police movement or reform of the police movement. What would you tell him as a politician? Here's what I'm advising you. Yeah, well, you know, I've known Eric a long time and I've had this conversation with him and with De Blassio and others. And I spoke to many of the mayoral candidates in the last election. And what I tell them is, is that you need to take control of the public safety discourse in a positive direction, by saying you're gonna be the person who has a real plan to actually create safer and healthier communities in a way that policing just doesn't successfully do that. And most people, especially in high crime communities understand that there are profound limitations on relying on policing. But what they're told is they can have policing or they can have nothing. And when they're given that choice, a lot of them will choose policing. And what I say to candidates is you wanna give them other choices. New York City is filled with community centers in public housing developments that are empty, because there's no funding, for staff, programs fixing them up. And if you said to those communities, look you've got $20 million to spend on public safety in your community, would you rather create a new police anti-crime unit? Or would you rather have the community center in your own public housing development fixed up? They choose the public housing development, but they're never given that choice. So your advice to politicians running on this issue would be to really get the message out it sounds like. Yeah, to embrace this idea that yes, public safety and public disorder, these are very real issues. I wrote a previous book called "City of Disorder" about the politics of this in New York City in the seventies, eighties, and nineties. And I said, look, yes, these are real concerns, but just sending the police and sending more people to prison turns out not to be very effective, is extremely costly and ignores the fact that there are lots of other things that we could do. We could double down on community-based anti-violence efforts. We could create family support centers. Council member Tiffany Caban and I have been proposing something along these lines. We could bring more counselors back to schools and have crisis intervention plans for students in real distress who are the source of so many of the problems that people are worried about. So we have real things that we could do and we should lift that up and we should, push back against this. Well, we need a balanced approach narrative that a lot of people have been spouting as the kind of enlightened way forward, which is, yes, we need these alternatives in balance with policing, but when you look, it's 99% police and 1% alternatives at the funding. Right? That's not balanced. If you really want to talk about balanced, right? Let's have 5 billion for policing and 5 billion for these alternative interventions, but instead we have 11 billion for policing and a few hundred million for one-off underfunded community-based approaches. Well, it's interesting. So now you get to the money and that's really the root of it all. Alex, I know, I know you've talked about it a lot, right? So it all traces back to where your priorities are in your budgetary constraints. So we live in New York, I know you're wearing a Houston Astros hat, but you are a New Yorker. Let's just make that clear. You're a Brooklynite like me. I've been here for 30 years. That's right. So let's, let's keep it real clear to anybody watching this who you really are, where you come from. You come from an interesting background, but boy are you a New Yorker for sure. But the money, the money is what talks, right? And that's at the root of all this, where are you gonna shift your resources? So that's really why I wanted you to come on and talk to me. You know I'm a personal injury lawyer, so everything I do is centered on dissuasion through money, right? If you do something wrong, negligent or otherwise, someone like me is gonna come along to hold you accountable financially. Now that has, in my opinion, and I've been doing, I haven't written much like you but I've been suing people for 30 years and I like to believe that what we do has a benefit to society in dissuading people from doing things. So for example, at its simplest example, I think people shovel their sidewalks oftentimes, sometimes they do it 'cause they don't want someone to fall and get hurt. But I think many times they do it because they don't want someone like me helping somebody that's hurt and suing them. Fine, that's a good thing. I think people drive within the speed limit and don't drink and drive and don't text and drive at times because they're afraid of potential financial responsibility or fallout. I think what we do keeps corporations in line, keeps the medical profession in check. So we provide a really nice check on society to some degree. It's not perfect, but a pretty good one in that aspect. Now we also sue oftentimes municipalities for police misconduct. I know you know a lot more than me and I actually am in the forefront of this too. But I know you know way more than probably anybody about police misconduct and the fallout and the financial thought. So something struck me. There was a Washington Post article I guess a couple months ago. You and I talked when we were out one night, and I said, what do you think about this? Where they were talking about insurance companies regulating police departments to some degree because something like 85% of the municipalities in the country are not self-insured, they're small. So they actually go out and ensure their police departments. Obviously New York is not one of them. New York has enough money, so we're self-insured. So if I sue the police department and win, we pay it, the taxpayers pay. And that's a different problem. But we have the money to do it. But now what's sort of happened is these other municipalities where insurance companies are the ones giving the policies, have now stepped up in the last, let's say I actually, it's not that new. I actually researched it a little bit more, because if I'm gonna talk to you, I better know what I'm talking about, right? And I said, wow, this has been going on for a while and insurance companies are affecting policing and in fact they shut down an entire police department in south of Los Angeles, I learned. I was like, wow, that's unbelievable, 'cause they said, we're not insuring you anymore. Goodbye and goodbye department. A small department had to be taken over by LA and they've issued pamphlets on like police chasing and things like that, things that you have a lot of expertise on. And I said, wow. To me, at first I said, and I don't like insurance companies. That's who I fight with all the time, right? I'm no fan of them. But I said, wow, this to me seems like a positive effect and seems like a quicker effect in effectuating change than something you're trying to do, which is you're trying to get education out there, educate the masses, get the message out there and effectuate change. And I think I love what you're doing, I'm behind it a hundred percent, but it's a slow difficult and probably frustrating process. My process, even though it's sometimes we think it's slow and frustrating, sometimes can be quicker. And in this case I said wow, I think this insurance aspect of changing a regulating police departments falls in line with a lot of what you're trying to do in a different way. So I said, boy, I gotta ask you about it. What do you think? So there's a lot to unpack here and there are a lot of people who are more knowledgeable about the implications of the 1983 litigation than I am. But there is a lot of research that has come out very skeptical about the practical consequences of police misconduct lawsuits. We have not seen it really feedback into and this is crucial here, into actual on the ground meaningful changes in the way policing is conducted. Right, so lemme stop you there Alex. So basically what you're saying is guys like me in all of our lawsuits haven't been able to get the policing. That's right, that's right. So you're opening up this door to a new mechanism, which is interesting and let me just say part of the reason why this may not have been as successful as people hoped is that it rests on a kind of deterrence theory, which you outlined, right? Using the threat of financial penalties to alter behavior. It turns out that some behaviors are more amenable to that kind of tweaking than others. So getting someone to shovel their sidewalk doesn't require an entire change in how they view the world. It is not a massive transformation, right? They hire a company to come and shovel their sidewalks that is slightly cheaper than the risk of getting sued. That's right. And so that's amenable to that kind of incentivizing. But what policing does is turns out not to be so simple to incentivize in that way. And this is the potential problem even with this idea of the insurance companies intervening. So you're right, this has been going on for a while in fits and starts mostly targeting very small and some, moderate size police departments, not the big cities. Right But it is not creating massive transformations. If you look carefully, what they're doing often is they're asking for a change of policy, a procedural change. And this is the same as a lot of the changes that the police reform folks have been asking for, going back to Obama's task force on 21st century policing and in a whole army of consultants. So a department will change a use of force policy, they will change a vehicle pursuit policy. But even the article in the Washington Post pointed out that it's not reducing the number of vehicle pursuits. They're often ignoring the policy and it's not creating these deep transformations. Now here's the deal. I think that there is tremendous potential leverage from these insurance companies. And I would add in addition the bond rating agencies that rate the debt from these small communities, which I think is endangered by both police settlements and police pensions that are bankrupting these cities. And I'd love to see the bond ratings agencies get more involved in pressuring municipalities to do this. But what they have to quit doing is thinking the fix is gonna come with a change in written policy and a few hours of training and instead pressure these municipalities to quit using police and vehicle enforcement altogether. Also, Alex, why can't they do that? They could, they could. One more police chase that results in an accident from you guys, 'cause we've had 10 and we've paid out on 10 of them. So the next one that happens during your next policy period, you're canceled. And when your insurance is canceled, your department is finished. Isn't that gonna motivate a sergeant or an an officer there to say that's the end of police pursuits here? No, it seems like it should and it might result in some collapses of more police departments. But look what happened in that community in southern California. Their policing was taken over by the LA County Sheriff's Department, which has not changed its vehicle pursuit policy. That's a good point. And is responsible for a lot of misconduct and civilian deaths. So the problem is, is that these local communities have made a decision about how to produce what they perceive to be safety. And as long as they keep imagining that the tool they're going to use for that is policing, these bad outcomes will persist. Now, perhaps we can make some minor adjustments, but until we do what Berkeley, Philadelphia, and some other cities are beginning to do and do things like, oh guess what, not only are these pursuits expensive and dangerous, they don't make anyone safer. They don't produce better driving behavior. Let's take it away from the police. It's an engineering question. It's a public health question. It's an insurance question for individuals and their liability for misusing their vehicles. Let's turn it over to those people and just get the police out of it. Wow, but you're advocating and I know you've been a strong advocate, for really a fundamental change in the basis of the way people actually think. You're really attacking the root and the base in saying that then the trees and everything that sprouts from it will change for the better. And what I'm saying here is that that that seems to be a very difficult task, to now change the basis of someone's belief, their core beliefs, especially ones that are so naturally aligned with people's fear of living in a society and the police are so aligned with my belief of safety and it's only someone like you with your experience or someone like me who's had years and years of experience of seeing police misconduct also, that maybe has a little bit of skepticism when we look at police departments and says. Well, I don't think that's really true anymore. I am on the road pretty much every other week in a different community talking to people who actually live in these communities and they want something other than policing because they know better than everyone, all the terrible costs that come with turning a problem over to the police, the violence, the racism, the discrimination, and the failure to actually solve the problem. So I think there have been big shifts in the public understanding of this and we have some survey data that shows that if you ask people would you rather have more police or a non-police crisis response team that can handle drug emergencies, mental health, they say they want non-police alternatives consistently all across the country. So it's about giving them these credible alternatives. And I think this does not negate the potential value of litigation. What it does is it says the solution is not superficial procedural demands. What the insurance companies, what the ACLU lawyers who do the pattern and practice cases, what they should be calling for is get the police out of traffic enforcement, get the police out of drug enforcement, create non-police violence reduction programs in the communities. So we still need that pressure on these municipalities, but the demand needs to change. Well, you know, it also sounds like maybe the question has to change. In other words, when you put a question out to people and you say, well here's an agenda item on a legislative, if you can vote on this, defund the police, the answer's gonna be no... /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/25658832

Pulling Back the Legal Curtain Episode 6: How Does the Law Balance What is "Just" With What is "Fair?" 11/30/2022

Pulling Back the Legal Curtain Episode 6: How Does the Law Balance What is "Just" With What is "Fair?" Pulling Back the Legal Curtain Episode 6: How Does the Law Balance What is "Just" With What is "Fair?" This is going to be a very interesting podcast for me. Here we have my partner and brother Adam Edelstein joining me for the very first time. Usually he refuses to join me, so this is a really good day. Adam and I have been practicing together for a long time, but Adam has been a matrimonial family law attorney since '92. I practice primarily in the personal injury medical malpractice world so we really do two different things, but both of them involve the same thought process and analysis. I thought it would be a good idea, following the midterm elections of this week, to talk about current events, particular elections, election law, and all of these things that we see going on at the time to ask Adam his opinions. What is “Legal Process”? The legal process was a philosophy class in law school and the main point was; here's how law making and policy should be analyzed under this foundational principle of the United States, which is all about your freedom and your rights. This professor at law school, his name was Bailey Cooplin by the way, taught us the concept of analyzing what is just versus what is fair. Here's the analysis, everything in our country is about your rights, but we have to balance the right of the individual versus the right of the greater good, the electorate, the larger community. The perfect examples of the conflicts that you see every day is that there are countries founded on the principle of leave me alone, I have individual rights, liberty, and all freedom of thought, but the country was also founded on the principle that there's a common good that we have to work towards, which may at times stomp on the individual's rights. Remember the social contract in fifth grade? You're making a contract with your government, you're giving up some of your individual rights for the sake of the greater good by allowing the government to govern. So again, then you brought up conflict resolution, I think, which is well, who's right in any of these conflicts? What is the difference between what is just and what is fair? For example, last night my kids and I know my kids, there was some fighting going on and there was some deprivation of social media time on their phones and the immediate response I got from my son when I turned off his phone was, "It's not fair. " I'll turn it into what I'm saying is there's a social contract in your home and that is similar to the social contract that citizens have with their government that, "I'm giving up my individual right to drive 95 miles an hour for the rights of the greater good and regulating the speed so that people don't get killed." In your home, you have a contract. There are behaviors that have to be adhered to and when there is something done inappropriately, the punishment and the giving up your right to say, "I have social media 24/7 unconditionally." Remember, maybe your son has some wacky but theoretically fair ... not fair argument, but an argument, "Dad, this should not be something that warrants taking away my right to play on the internet alone." Your position is, "No, we are setting an example for the whole family that in this situation you have to behave as follows for the good of the family, for all of our goods." Another example is guns. We have a right to a gun. But what about the greater goods' safety rights and the conflict resolution becomes, "Should we regulate, take away that sacred visual right for the right of the greater good?" What's fair versus what's just? No one's wrong in that analysis. If you want to get into something that's a little bit different, we were going to talk about election laws, but you're right, we bring the subjective view to things and I want to tell people that I constantly remind myself to speak, preach, analyze, and always remember the rose glasses that everyone has and brings to the table and that's subjectivity. Why is that important? Because to resolve conflict in democracies and courtrooms, you do have to put yourself in the shoes of the other side. You have to always remind folks that you’re trying to not color it and just trying to make people think. That's what I've learned to love. What is a reactionary law process to election fraud? Law making in general and governmental policy and law making is, in general, reactive to an immediate problem. Pandemic, change the laws. 9/11, no more shoes on planes. Now, that's a law making process that could work, but there's another way to make policy to change law and that's to be forward thinking and to think about based on history, which repeats itself, on the horizon's going to be a problem that the government has to handle. Then you don't react, you're ready, you're proactive. Great example, the pandemic. Best example, global warming. Even if you don't believe in it, imagine if the red flag of global warming was raised 100 years ago and progress was made. That would've required strategic thinking. But with the pandemic is a fabulous example, our process, and it happens in the lawmaking process as well, because there is a greater good to look after and that requires long term planning politically and not reaction. When you react as a lawmaker or even as a lawyer you're doing it with colored glasses because you're thinking, “I need to give them something immediately to make them feel safe”, whether that would be full regulation on TSA and airlines within weeks of the incident or something else. Let's talk about the U.S. election system and the law making process, it's the same thing. Brazil, Western Europe, United States. In Brazil, they have a uniform election law throughout the country and Brazil has 3O states. They have one law, everyone has to do it the same. In the United States, we have election laws, much of which was made reactively because of the last election without real thought and process. In the United States we have hundreds of conflicting election laws from the state level to the sheriff at the local. The point is their systems work, they have never had real mass voter fraud and this is a result of planning, it doesn't happen overnight. We're reacting again and generally in history, reactive law making, reactive policy making in the near term generally statistically doesn't work. As historians and lawyers, we know to learn from history, it repeats itself. There's patterns we can inevitably see. "Oh, we're going to have on the horizon certain economic disadvantages if we don't address long term issues like energy," or things ... You don't have to have a position on these things. All I want people to do is think about it, that's all. When we start thinking about it, even if two people disagree, the dialogue and the process should result in reasonable laws and policies balancing the rights of the individual and the greater good. Conclusion: That's why I think it's really important to have advocates like you and like me be in there at both the micro, the court level, and macro, the legislative level. Oftentimes they'd be called lobbyists at that point, but to present to these people to say, "Here are both sides of the coin," and it really does trace back to what you learned in law school. In balancing what is just for the individual versus what is fair in terms of a greater good and the law really is a balancing act on both You can find The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/25177584

Pulling Back the Legal Curtain Episode 5: Is The City Responsible When parents Don’t Protect their Children From harm? 11/07/2022

Pulling Back the Legal Curtain Episode 5: Is The City Responsible When parents Don’t Protect their Children From harm? What is the recent issue and how does it relate to our past case? Paul Edelstein: We saw a case in the newspaper yesterday where yet another child was abused and killed, despite the fact that city agencies apparently had some knowledge that abuse was going on. There was a news conference with a lawyer and they were saying they're suing the city. When you read the New York Post article, you obviously get the feeling "Wow, this is a horrible, horrible tragedy, and the city maybe should have done something." You and I, about five years ago, had a similar situation where a client came to us under very similar circumstances. A poor young kid was being abused by the mother's boyfriend and the city agency, the ACS, the Association for Child Services, apparently was contacted in some fashion and clearly negligently responded to whatever information they were given. As far as we know, they went to the wrong address. Part of the reason they went to the wrong address was because of their training, and the call came in on a weekend. It's just a horrible screw up by the ACS and a horrible, horrible murder by a human being that's now in jail. Why did we take the case? Paul Edelstein: Right. Because I know you handled the case and you did an unbelievable job. You actually took a verdict in front of a Supreme Court judge against this horrible murderer for $40 million, which is probably a record setting verdict taken by somebody. Of course, the guy's in jail. You and I both know it's unlikely that he'll ever be able to pay this judgment or it'll ever amount to anything. We also took the case and tried to hold the City of New York through their agency, ACS, responsible for their absolutely, complete screw up in dealing with this kid. Which you and I both agree, if it went differently, this kid might be alive today, wouldn't you say? Arthur Blyakher: A hundred percent. Paul Edelstein: I remember when the case came to the office and we discussed it, and then we talk to our office staff, we talk to our spouses and friends, and we say, "What do you think about this?" This type of case, every person we ever ask has the same reaction. Obviously first they're horrified, but secondly they're like, "Wow, you guys are going to win, right? The city's going to be responsible." But you and I knew that we probably weren't going to win the case against the city. And we decided to take the case anyway. You and I had debates about this, and we both felt it was important for us to take the case and try to hold the city responsible. As lawyers, we feel like that's our obligation, to put a light on this and to try to change a law if we could, that we think is really problematic. Why was the case fought for so long? Paul Edelstein: We fought for six years on this case, but we lost. I remember we told the father of this child, "Hey, we're probably going to lose, but we're going to try anyway." And we did. You did an amazing, amazing job on the case. We did everything we could, and I think you did a great job. We want to shine a light in it. This law that we're talking about is this thing called special duty. This special duty law really only benefits a few people. In this case it benefits government agencies. Why in the world can't I sue the police if they didn't prevent me from getting hurt or killed when I called and said this? Why couldn't we prevail against the city when they didn't protect this child, even though they got a call saying, "Hey, this child may be in danger." Arthur Blyakher: The way the law is run, the legislator provides protection from municipal workers, for government workers, called government immunity. You cannot sue an ACS worker, a police officer, even a firefighter for regular negligence because they're protected by government immunity. Unless they establish a special relationship, they create a special duty. What's the difference between a case where city workers are negligent and hit you with their car and these types of cases, police or ACS responding to a call for help? Arthur Blyakher: Because it's different if you are suing them for something they did in the course of their work, in the course of their employment. If they're carrying out their government function, they're protected under this government immunity unless they establish a special relationship and create a special duty to the particular plaintiff. Paul Edelstein: Alright. Now, let's just be clear, though. So, even if a police officer's driving his car and he hits you even when he is on patrol, that's different than the cases we're talking about, right? Arthur Blyakher: Sure. But even in that situation, there are slightly different rules. If they're responding to a call as opposed to just driving in the street. Paul Edelstein: But they don't have absolute immunity there. So, we talk about these cases where a government agency like ACS, in this case, and the one we read in the post yesterday, get a call and some kid's in danger or somebody's calling the police saying, "Hey, my husband, my boyfriend, or this ex-boyfriend is threatening me, he's going to kill me." And he ends up doing it. Why can't we win those cases? Arthur Blyakher: It’s a judgment call. They're saying if the worker made a judgment call or did something in the course of their employment, aside from driving, those are completely different issues. But here, a police officer makes a decision not to arrest somebody and the person they didn't arrest goes and kills somebody else, that police officer is protected in that situation. Their judgment does not expose them to liability. In our case where ACS received a report of a child being abused, they didn't conduct the investigation in a matter that would've been appropriate. And that's what the city investigator found, that they did not do the appropriate investigation. They did not carry out their job the right way, and ultimately it led to the child, in our case, his death. Conclusion: These are horrible cases. This is a very complex law that applies to this type of horrible case. You and I have very strong personal feelings about this law. Professionally, as lawyers, we don't agree with it. We tried to change it. We did what we could do as lawyers to do that. And you know what? I got to tell you, I'm proud of everything you did on it and we did as a firm. It's all you could do as a lawyer. And like you said, maybe somebody will see the verdict, or read about the case, or watch this podcast or something and say, "Wow, somebody should do something about that." Hopefully that's the case. You can find The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/24932046

Pulling Back the Legal Curtain Ep 4: New York’s New Outdoor Dining Structures 10/14/2022

Pulling Back the Legal Curtain Ep 4: New York’s New Outdoor Dining Structures What is the issue all about? Paul Edelstein: I've got my young new partner, Arthur Blyakher here with me. And as we usually discuss things at lunch, I brought to Arthur's attention the fact that I read an article on my train ride today that said, "New Yorkers left feeling queasy after court rules in favor of completely disgusting outdoor structures." And actually you read the first line of the New York Post article, and I love the Post, but I don't know sometimes. It says, "A New York court ruled on Tuesday in favor of the outdoor dining structures lining Big Apple streets, dismissing a lawsuit and paving the way for the pandemic era fixtures to become a permanent part of the city life." I read that and I'm like, "What? Holy crap." I got to read that appellate division decision. Did the Post get the issue right? Arthur Blyakher: Sort of, it's certainly misleading. It makes it seem like there's a final determination about these structures, these outdoor dining, which is not the case. Paul Edelstein: That's right. That did not happen. We have two things that are interesting, I think that are interesting for you and I to chat about and record. One is, the substantive issues. And we talk as lawyers all the time, there are substantive things that go on in cases and procedural things that go on in cases. This is a perfect example. This case, the substantive issue of whether these temporary dining structures should be allowed and things like that, is super interesting, particularly to you and I because we like to eat and drink on the streets, we like that. We love this thing, but we also both live in the city. I know you're not right in the city right now, but we both have talked about this issue for the last two years and it's a very interesting issue. That's the substantive issue, so let's talk about that for a minute. But there's also a procedural issue and that is that lawsuits have a procedural element to them. And so when you read this New York Post article, when I read it, I got the feeling like, "Wow, the appellate division, so the higher court made a ruling and that's it. These dining structures, it's over? They're permanent?" And when you read the decision, it doesn't say that, does it? What did the decision say? Arthur Blyakher: It said that the petitioner in this case who challenged the making permanent these outdoor dining structures or passing the legislation permitting outdoor dining, challenged this based on concerns about environmental impact. And what this decision said is, there hasn't been an injury yet to the petitioner that is actionable. It says, "You still have to go through certain processes before you can challenge this law." First of all, the law has to be formally passed, which has not yet been done. Paul Edelstein: Interesting. See, this is why you need young smart attorneys. Because I was like, "What the hell? Arthur, go do the research. I want to know what the hell is going on." And you actually figured it out and you told me. But I wanted to look at it from a little bit higher up. And then when I looked at it, I said, "Wow, okay, what happened?" If a client came to me and said, "Hey," or, "My wife," which is what we talk all the time in the morning, said, "What is going on here? I don't get it." Here's what I would've told him. In the height of the pandemic, Mayor DeBlasio passed an emergency law called the Open Restaurant Program in Outdoor Seating. Now, I think it was a great idea. I think a lot of people agree with that. You saved a lot of jobs and made life in the city a little bit more tolerable. And that was fantastic. But after a certain amount of time, that emergency law started to result in some blow backs, so some neighborhoods are complaining about noise, vermin, homeless people, these structures are deteriorating and a lot of crazy stuff going on with it. The temporary law now is set for some analysis to become permanent. And when it was a temporary law, it was able to bypass certain requirements that would normally happen. Is that right? Arthur Blyakher: Correct. If it wasn't an emergency with the pandemic and somebody said, "We want to do this," what would they normally have to do? Arthur Blyakher: There's a period, any proposed legislation by an administrative agency such as what we have here, there has to be a process of public comment, open discussion, round table, proposed legislation, amendments brought back to the public for additional comment. There's several agencies involved. The DOT is one that's integral in this process, SEQRA. Paul Edelstein: That I actually know as a lawyer, but I don't think any regular person has any idea what that is, the State Environmental Quality Review Act. And so let me explain what that really is. That's a really formal process that an environmental agency, a state environmental agency, has to go through when there's any kind of major change or impact on an area. Let me ask you this, my young partner here, normally, would New York state have to go through that process to pass a law like this outdoor dining law? Arthur Blyakher: Absolutely. Paul Edelstein: Now, they didn't have to do it in this case because it was the pandemic and it was an emergency. But as far as we know right now, what's happening right now, is that they are attempting to make this law permanent. And so there's a legislative proposal to do that. And in connection with that legislative proposal is this SEQRA review, this State Environmental Review. And what many people don't understand and what was not on this Post article this morning, is that the proposed permanent law actually has some pretty interesting limitations in it. It's trying to address some of these concerns, right? Arthur Blyakher: Right, it's actually in the second round. There were certain initial concerns that were raised and the proposed legislation was amended and now it's back in front of the different council members and borough presidents for additional review. Conclusion: Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glen. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we try to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care. You can find The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/24744846

Pulling Back the Legal Curtain Ep 3: Discussing Tua Tagovailoa with Dave Langer 10/14/2022

Pulling Back the Legal Curtain Ep 3: Discussing Tua Tagovailoa with Dave Langer Why call Dave Langer? Paul Edelstein: Dr. Dave, the reason I called you is because all this week I've been getting a lot of calls regarding what happened to Tua, the Miami Dolphins quarterback, over the last two weeks, which has been a very prominent story in the news. I've been getting calls from a legal perspective because as I know you remember, we represented Magomed Abdusalamov who was a boxer that had a severe neurological injury that could have been addressed much better by the physicians that were assigned. And now, there are a lot of people calling me, asking me what I think about the medical treatment that this quarterback for the Miami Dolphins got. And I thought, "Well, I have a legal opinion on that but I'm not a doctor." I've had a lot of people tell me that. So I said, "Well why don't we call a doctor?" So I figured if I was going to call someone, I might as well call the chair of neurosurgery at Lenox Hill Hospital, professor of medicine in Hofstra in Northwell, prominent physician for many, many years and not at all a bad looking guy. I figured I'd call you. From a medical perspective, if you just saw Tua’s injury, what would you be thinking? Dave Langer: That inherently is the problem, is that concussion is as much a clinical... It's a diagnosis. Very often you can't see it on a film or there's no test, so there's a fair amount of subjectivity and so it's visual. It's like you saw what I saw, everybody saw the same thing. Just like any other video, people can see it through different perspectives. Rodney King didn't happen to some people or people see two videos. They see something completely different. Look at all these cop videos that come out and one side says they were defending themselves and this side says they were acting inappropriately, whatever. I think this is even more subtle because it's very clear to any person of what they were seeing at the time, but you got to remember that the protocol. I'm not sure if it requires that they look at videos over and over. The doctor seeing it from playing field level may not have seen as well, then gets the player into a private room without the crowd around and the guys sits there and seems good and then there has to be a bias. Unfortunately, that's where it starts to get gray. So it's maybe what we had that conversation about why that's important and that bias is what undoubtedly played a role here. These are decisions people make based on their training, their intelligence, their experience, what they saw, what they think they saw. Everybody has a perception. Perception is actually linked to your emotions; it's linked to lots of different things. In the heat of the battle, a decision was made, and I think everyone agrees it was the wrong one. Is there a physician that's trained in your field that would look at the video and not be suspicious for neurological injury or brain injury? Dave Langer: I'm sure there is. Like I said, there obviously is. The truth is that the reason why people take these jobs are often unrelated to their skills and their qualifications. For many of them, it can be their political jobs. The reason why they choose to do these jobs is to say, "I'm an NFL doctor. I can put it on my business card." It's a way of getting patients. It's a way of getting attention. So selectivity of who gets these jobs is often based, not on maybe their skills and their experience, but more on who they know or how hard they push. What are the qualifications of this neurologist? And by the way, they haven't announced his name. It protects them a bit. If they screw it up, I'm not sure what the legal ramifications are for him, whether he is making something, they're not paid very much. I think they more or less do gratis very often. There's a quid pro quo, “We’re going to give you this title of head injury specialist for Miami Dolphins, and you're going to come every Sunday and sit in the sideline and bring your family and tell everybody you're the team doctor,” and most of the time it works out. Trouble is that in this particular situation, it didn't. I can't imagine that any trained neurologist, neurosurgeon, what have you, would see that video and think anything other than this was a concussion. What he was thinking about, I have no idea. You have to ask him and now we don't even know who it is. The Dolphins announced that this doctor was a neurotrauma consultant. What is that? Dave Langer: Paul, I don't think there's such a thing. And on top of that, if you look back at the history of the NFL, one of the doctors that made the original going back before they really changed a lot of their approach to this was a rheumatologist. I mean, the NFL has a history, in my opinion. Now I think they've gotten a lot better; their head doctors are very talented but each team has their own way of handling this. It's kind of like the United States, there's a federal government and then each of the different states has their own way of management based on their ownership, based on their coach. There's a lot of local control. I think the NFL does have a fair amount of say on the consistency that's particularly who the team doctors who's ultimately responsible, but the team doctors tend to be orthopedic surgeons, in general. They're not neurotrauma specialists. And so that guy who is team doctor has to ask for help here. He's the ultimate arbiter of the decision. The neurotrauma specialist makes the recommendation and then the team doctor ultimately is the one who makes the decision but that is despite the fact that the vast majority of injuries that require attention are orthopedic. The head injuries have, in general, historically been things that either have been overlooked or only become to an attention when they're really severe. There haven't been that many occasions where people are actually not that unconscious. That's relatively uncommon. What we see are these types of things; there's a temporary either transient change in their level of consciousness or what we see on the field, which is by the time they get to the player, he's often talking and awake. What we have is the videos and in general, I think that the people on the sideline, I can't imagine they have a great vantage point on this. Wherever they're sitting, maybe they were... They're not watching every play carefully. And then when it does happen, they're going to rely on the videos just like we are. And so how that's managed, I have no idea. Are they required to look at them? Do they look at them? They go to the players. We know in the first 10 minutes they are looking at the player and making sure the player's okay, which is appropriate. Then he goes back in the locker room or under the tent and they figure out, "Is this guy okay?" How did they get the information? I don't know if that's protocolized. All these things may be very based on how each team manages, how each team doctor manages it and how each trauma consultant manages it. And I would imagine those consultants can vary. They could probably be neurologists, they can be MDs, they could be DOs, they could be neurosurgeons. Maybe they could be psychiatrists for all we know. I have no idea what the protocol is for that. Conclusion: Paul Edelstein: Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn, because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do which is, proceed. Take care. You can find the The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/24744831

Pulling Back The Legal Curtain Ep 2: The Big Story of Tua Tagovailoa 10/07/2022

Pulling Back The Legal Curtain Ep 2: The Big Story of Tua Tagovailoa Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I'll have my partner, Glen Faegenburg with me most of the time. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. Seems like every day we have these kinds of questions and get asked them. On this podcast we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. All right, Mr. Faegenburg, the big story this morning is right up your alley and my alley, was Tua Tagovailoa. What happened to Tua? Paul Edelstein: Here is a professional athlete, obviously in incredible shape, surrounded by what should be the highest caliber of medical care and athletic care under the closest possible scrutiny. What appears to have happened last night is that he obviously took a blow to the head that resulted... We don't have the medicals, but it looks, from what I could tell, to be a concussion, neurological related problem that was pretty scary. The results of which I guess we don't know yet. What was the first thing you thought of when you were watching that game? Glenn Faegenburg: I was thinking about a case that you had for sure, but I was seething mad, because I saw that hit on Sunday and they called it a back injury on Sunday. It was so clear that he was stumbling around and woozy. Clearly, he had suffered a concussion, but they chose to put him back in the game. It was also super hot day, over 100 degrees on the field, and then they have this guy come back four days later. I don't even think there even should be Thursday night football. I think it's ridiculous for the players. But to send a guy who had clearly had some sort of neurological problem on Sunday back onto the field to be re-injured, it's just crazy. There were neurologists and concussion specialists predicting that this is exactly what was going to happen. And sure enough, it looks to be the man had a seizure on the field. It is crazy. It makes me think about the boxing case that you have for sure. Paul Edelstein: What happened last night relates to something that happened before last night. Last Sunday, this very same quarterback, in an NFL game, took a severe blow and then got up from that blow and sort of stumbled around the field. That's what you're referring to. They took him out of the game at that point. From your perspective with your knowledge of brain medicine what can these symptoms be related to? Glenn Faegenburg: It could be something orthopedic, but the manner in which... He looked like there was some sort of neurological condition based on the fact that his knees were wavering. It didn't look like there was any physical, from what I could see, knee injury, ankle injury, elbow injury, any sort of other bodily injury that could explain exactly the movements he was making. That looked like somebody who was suffering from either vertigo or some sort of neurological condition where they were out of it, and they could not keep themselves balanced because they were out of it. Why didn’t they try to prevent these things from happening? Glenn Faegenburg: It's so crazy. They have a protocol. I guess if you don't say it was a concussion to begin with, then you don't have to worry about the protocol. It seems to me that when you see a guy like that in that game, there's no reason to put him back in the game, but for one reason, which is to win the game. Why? So that your team will get more fannies in the stadium and more people watching TV and you will make more money because you beat the Bills by two points. They're willing to sacrifice, it sounds to me, well, it seemed to me, from what I watched these last two games, that they're willing to sacrifice their star quarterback. This is one of the great prospects. He came out highly touted, I think he went number two and he's a tremendous, gifted player. But if you're going to allow this to happen, he's never going to get to play. It's outrageous that they decided to put profits ahead of safety. This happens time and time again with large businesses. They treat people like they're just a cog in the machine. Tua is just a cog in the NFL machine. I related to labor law cases that I work with, we do construction accident cases and people that fall flat, there are special statutes that apply. There are a lot of people complaining about those statutes that they're too harsh and everyone gets blamed, and owners get blamed. What they don't understand is that without those statutes, companies will just do whatever it takes to make the most money as quickly as possible. And that means sacrificing safety. So they're not going to set up the ladders the right way. They're not going to set up the scaffolds the right way unless they're forced to. That unfortunately, is the state that we're in for many, many businesses. I'm not saying it's all businesses, but clearly the NFL, in this case or in Miami Dolphins, somebody I think is responsible for allowing this man to have basically what I saw to be a seizure in the middle of the field. It's just so frightening. This is his livelihood; this is his mental and physical health. It's just crazy that you would take that chance and put this guy back on the field four days after the whole world, saw him wobbling around from a vicious hit. Let's get real. The NFL, it's tougher than it's ever been. The players, they're bigger, they're stronger, they're faster. It's a super dangerous game and, if you do have a concussion, you got to sit down for a while. It's simple as that. Can't play. Do you think he has a case? Glenn Faegenburg: I think he's going to have a case. I don't know who it's going to be against, but God forbid this guy has an injury that keeps him... Even if he is out for the season, I would think the guy would have a case. But clearly if he can't return, I think that there will be a case. What they're going to say is, "Look, we did the protocol, and we followed the protocol. Okay?" And the NFL is going to say... From what I'm seeing, the protocol was based on a fictitious injury. He didn't have a back injury, he had a concussion, a brain injury. They knew if they said back injury, they'll get him back playing football sooner. Paul Edelstein: But if Tua did call us, boy would I like to cross examine whatever doctor cleared him to get back in that Bills game last week and interpreted a blow to the head and back, combined with the symptoms that they saw of him wobbling around the field and said, "I ruled out concussion and neurological signs." I don't think that's going to be a very lengthy or difficult cross examination. Do you? Glenn Faegenburg: Well, it could be lengthy because it's just so ridiculous a statement. You could have a field day, you'd be two hours, you could beat the guy up on that. This should not happen in this day and age. We're in 2022 and we know so much about head injuries and concussions. This should not happen. Period. Paul Edelstein: I'm with you. Hopefully there's no call from Tua to us or anybody else because he's okay. But boy, hopefully... It's amazing, right? We said after Mago years ago where that we hope that there would be a higher level of scrutiny on professional athletics to prevent this from happening again. Yet just seems over and over and over again we see it. The NFL... How many times is this happening, not at an NFL or professional level, but rather college, high school, all these other sports? You're not seeing these and that's a really, really big problem. Maybe the scrutiny that comes with Tua's injury here, let's hope he's all right. But maybe the scrutiny that'll get placed on it, much like a lawsuit, will affect a way to change. Hope so. Conclusion: Speak to you in a little while. See you. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glen. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain. Doing the only thing that we know how to do, which is proceed. Take care. You can find the The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/24622053

Pulling Back The Legal Curtain Ep 1: The Real Scoop from Real Trial Lawyers 10/06/2022

Pulling Back The Legal Curtain Ep 1: The Real Scoop from Real Trial Lawyers Title: Podcast Episode 1 - Pulling Back the Legal Curtain: The Real Scoop from Real Trial Lawyers. This podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered, "What the hell is going on in courts?" Seems like every day we have these kinds of questions and get asked them. In this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there and hopefully give you some answers. Some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain. What is the reason for starting this podcast? Paul Edelstein: We thought it would be a good idea because we get asked all the time by clients about how the legal system works and how you pick a lawyer and what goes on in court. And there seems to be a lot of mystery about it, even us getting asked all the time. We thought it would be a good idea if we explained what really went on in the legal system and we call pulling back the curtain. We want people to know what's behind the curtain and there really is no great Wizard of Oz behind the curtain. There's just real people and you need real trial lawyers to do that for you. So that's Glenn and I. So that's what we're setting out to do through this podcast. Glenn Faegenburg: Definitely. I think that there's a lot of stuff that goes on behind closed doors in the legal profession on both sides, both for people that get hurt and the people that are defending those cases and the legal system that most of the public is probably not aware goes on. And hopefully we can give you some insight as to what's really important and get you the real scoop on what you can anticipate if you get involved in an accident, God forbid. I think everybody thinks everything's out of a TV show, where the plaintiff's lawyer, that's the person who got hurt, and the defendant's lawyer, that's usually going to be some insurance company's lawyer, hate each other and they want to kill each other. There are times when we don't get along with the other side, but there are other times where we're congenial. You're in court, you're fighting for your client. Outside of the court, Paul and I have friends that on the other side of the business and we consider them good friends. How did we end up being lawyers? Glenn Faegenburg: Well, it's funny, I should have even taken a little further step back. I loved the law. I always loved personal injury law. I got exposed to it in high school. I was taking all these premed things thinking I wanted to be a doctor, but I took a legal studies course, and we had a mock trial and it was actually in National Supreme Court, which I've now tried many cases since that time and it was an incredible thrill. I got to cross examine a witness, it happened to have been personal injury case, and I was like, "You know what? I think I really have a knack for this." And I saw that my boss was very bright, and he had a very good career. I didn't think I was ever going to be anything in his shadow. I knew that Adam was an amazingly bright and interesting guy. I knew that he would end up being he done ultimately, he was not doing the personal injury, but that he did matrimonial and that he had been working for his father. And his father had many years of working as a matrimony attorney and is considered probably one of the most famous matrimonial attorneys in New York history. I also knew that I was going into a very solid family. Family that really cared about the law, a family that cared about their clients and I thought it would be a good match. Paul Edelstein: I am the son of a lawyer. A grandson of a lawyer. I have aunts and uncles that are lawyers, cousins that are lawyers. Everyone's a lawyer in my family. My little kids who are 13 and 15 apparently are lawyers too. Better lawyers than me at home. Everyone was a lawyer, and I was the opposite. I'm like, "Boy, I don't want to do this." I wanted to be a doctor, but I couldn't do chemistry, I couldn't do math, I couldn't do any of that stuff. I was a biology minor in college, but I really loved anatomy and medicine and all that. And I became a lawyer somewhat by default and then out of law school not knowing what to do. Met you and obviously were partners with my brother and you were the one that explained to me, hey, this whole personal injury field, the more medicine, the more anatomy you know. And I knew a lot because of my experience in college and really loved it. The more about medicine, the more you know about that, the better attorney you could be in this field. For me it was a no brainer. When I interviewed with you guys and of course I know you guys were very wise in hiring me because one of your close friends, a very prominent lawyer in New York as well, was the only other interview I ever went on who offered me a job on the spot. How we work: Paul Edelstein: We sat across from each other, facing each other for about two years, sharing a desk, right? Glenn Faegenburg: There was about one foot of space to actually walk in that office. It was incredible and I think I've said it before, but you and I, we never fought during that entire period of time. So that is pretty telling to be in our type of high stress business and to spend two years not at each other's throats, but the opposite, learning and pushing the ball for our clients. It was pretty great. Paul Edelstein: it strikes me that now when we have our own grand lovely offices and we're next to each other and our own desks that we spend most of our time when we're in the office, when we're not in court and doing court related things, sitting on the opposite side of each other's desk just like we did back then. I mean that's what we do. Glenn Faegenburg: It's been working for all these years. Back then we were able to share ideas and also have fun. It's a combination. It's nice to have that and it still is as helpful now, maybe even more so now than it even was back then. Paul Edelstein: Obviously, we have many other people that we sit with do that, and that's sort of the secret of the success, I think. But it's interesting to think that's how we sort of started you and I as lawyers and partners. We were physically at the same desk. Now we have different desks and different offices, but we end up migrating to the same place the same time anyway. We could have saved a lot of rent if we just kept going at the same, with one desk. I really don't know why we didn't just stick with that. Conclusion: Thanks for joining us on pulling back the legal curtain with Paul and Glenn because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care. You can find the The Edelsteins Faegenburg & Brown Law firm on . /episode/index/show/4316c02e-af9c-4cb7-94a9-b28807094c9e/id/24611928

Pulling Back the Legal Curtain

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