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News This and That by Dennis Wade August 5, 2021 < Back Share to: On April 3, 2018, I was called to jury service as a trial juror in Supreme Court, New York County. And, for a lawyer, being on the other side of the courtroom rail is a thought provoking experience. My chances of being chosen to sit on a civil tort suit, of course, were slim--former prosecutor, insurance defense and coverage attorney and an acquaintance with many of the plaintiff and defense practitioners in New York County. Step one in the jury selection process is Voir Dire, an Anglo-French term which literally means: To see, to speak. But I prefer the Latin derivation of the phrase: Verum dicere, meaning “To say what is true.” What the law wants is “fair and impartial” jurors who will decide the case on the facts disclosed at trial. What advocates want is something else--jurors “open” to their view of the matter on trial. Jury selection has become a science, a practice featured on Bull, a popular TV drama featuring Michael Weatherly playing Dr. Jason Bull, a character modeled after Phil McGraw who began one of the most successful trial consulting firms in the country. Like all jury consultants, Bull purports to use everything from social media to neurolinguistics to discern what really makes a juror tick, and thus either a good or bad choice for counsel. As I sat through my first voir dire in a medical malpractice action, I re-discovered, in a visceral way, what I always knew, the challenge for the lawyers is to judge whether the prospective juror is really saying what is true (verum dicere). Potential jurors who don’t want to serve, to be sure, know what answers to give. And all good advocates recognize these for what they are--polite fibs to avoid the trial time commitment. So, the real challenge begins when the fibbers fall away and the potential panel consists of those citizens prepared to give of their time to decide the contest. I have used jury consultants and their insights are often valuable. The usefulness of their contribution depends in large measure on how well counsel has developed its trial themes and the overall narrative of the story counsel plans to tell at trial. But the reality is jury consultants are pricey and the cost often outweighs the potential benefit in the garden variety controversy. So, how do you tell whether the juror is telling the truth about potential bias, about attitudes, about whatever issue matters to your trial themes. There are no magic answers. Go with your gut. And if you want a rationale for this tried and true advice, I urge you to read Blink by Malcolm Gladwell who had a simple but profound insight: We get into trouble when we try to talk ourselves out of a gut feeling. According to Gladwell, our brains are fabulous microprocessors that process information on many, many levels--levels well beyond our conscious awareness. Say, for example, your gut tells you something is “off” about an engineer in the panel of prospective jurors; yet, your mind tells you a person trained to solve problems and think logically is ideal. What to do? Gladwell would urge you to follow your instinct and use a peremptory challenge to strike the engineer. By now, after this musing, you're wondering what became of my jury service. I was bounced from a panel in a medical malpractice “pre-qualification” panel because WCM had cases with defense counsel’s firm. And, at 4pm, the jury clerk dismissed everyone because so few cases were trial ready because of Spring Break Week. But back to Gladwell, and another word of caution. A nurse excused from the same med-mal panel and I started chatting as we headed for the exit upon being excused from our term of service. But she, unlike me, sat through several hours of questioning. Bold, and thinking of Gladwell, I asked my new friend: “Based on what you saw during voir dire--and if you needed a lawyer--who would you hire?” “Easy call,” she said, “Plaintiff’s Attorney.” Puzzled, I asked why, because, to my eye, defendant’s counsel seemed, well, more authentic and in command. The answer? “Defendant’s counsel slouched and was sloppy in appearance. “ The moral of this tale is this: Stand straight and wear clothes that fit. To give my elevator friend due credit, defendant’s lawyer did look like he was wearing his older brother’s suit. And it was green, a poor color choice for an advocate unless, of course, you are Reaganesque. And that’s it for this This and That. Previous Next Contact

News Mediation Agreements Are Binding in NJ. August 12, 2011 < Back Share to: In the case of Willingboro Mall v. 240/242 Franklin Avenue, et al., the plaintiff appealed from an order enforcing a settlement reached during a mediation session conducted pursuant to Rule 1:40-4. Plaintiff argued that the rule precludes enforcement of an oral settlement reached at a nonbinding mediation session. It also contended the alleged settlement was the product of coercion by the mediator. The facts giving rise to the appeal are as follows. Plaintiff and defendants were commercial real estate entities who were involved in a default and foreclosure dispute. The parties were referred to mediation by the General Equity judge. The parties selected a retired Superior Court Judge as mediator, and attended a mediation session with their attorneys at the office of defendants' attorney. After several hours, the parties agreed to a settlement. Counsel for defendants then wrote a letter to the General Equity judge to inform him that the parties had reached a settlement. The letter also stated the terms of the settlement. Plaintiff refused to consummate the settlement and instead asserted that a final, binding settlement agreement had not been reached at the mediation session. Defendants then filed a motion to enforce the mediated settlement agreement, and supported the motion with a certification of their attorney and the mediator. A plenary hearing was conducted and a written opinion was issued, which found that the parties did in fact arrive at a settlement of the underlying case, and that the settlement was therefore binding. On appeal, plaintiff argued that Rule 1:40-4(i) prevented enforcement of an oral settlement because the terms of the settlement were not reduced to writing at the mediation session, a copy of the writing was not provided to each party, and the parties did not affix their signatures to the writing at the mediation session. In addition, plaintiff argued that enforcement of a settlement reached at a mediation session is contrary to the non-binding nature of the mediation process. The Appellate Division agreed with the trial court. It ruled that mediation is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. Rule 1:40-4 (i) does not prohibit the mediator or one of the parties from reducing the terms of the agreement to writing shortly after conclusion of the mediation session as occurred in this case. Specifically, the court noted that in this case, three days after the mediation session, defendants' attorney prepared and sent a letter stating the terms of the agreement reached by the parties. Two weeks later, he sent another letter informing plaintiff that he had placed the sum required to resolve the dispute in an escrow account. The Appellate Court held that these writings, the first memorializing the terms of the settlement and the second notifying plaintiff of defendants' action to consummate the settlement, were within the intention of the rule requiring the agreement to be reduced to writing. Two important points bear mention here. First, sometimes attorneys (and litigants) are held to their word and bound by their verbal actions. Second, and perhaps more importantly, know your case and the attorneys. If the attorneys on the other side seem like the kind of folks who will try to weasel their way out of an agreement, don’t leave the mediation until a written agreement is finalized and signed by all parties. It might take a little bit longer, but it’s certainly worth the effort – in fact, we just did this on a case on Wednesday where a post mediation “agreement on written terms” seemed like it might be hard to come by. But that’s a story for a different day… Special thanks to Sheila Osei for her contributions to this post. For more information about it, or WCM's NJ practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Claim Against NJSEA For Escalator Collapse At Giants Stadium Reinstated By NJ App. Div. February 17, 2011 < Back Share to: In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom. The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a2716-09.pdf Previous Next Contact

News Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute February 15, 2011 < Back Share to: < ![CDATA[Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute]]> Previous Next Contact

News Mere Presence Of A Hazard Does Not Create Liability August 18, 2011 < Back Share to: In Atashi v. Fred-Doug 117, LLC, the First Department reaffirmed the lower court’s dismissal of the plaintiff’s compliant, holding that the defendants did not create the alleged dangerous condition that caused the plaintiff’s accident, nor did they have actual or constructive notice. Atashi, a security guard at the defendants’ building, tripped and fell over a large flatbed dolly that tenants sometimes borrowed from the building staff. The court held that the presence of the dolly alone did not equate liability onto the defendants. Atashi conceded that the dolly was not in the hallway five hours prior to the accident, and he would have been the only employee on site that day responsible for inspecting the location on the defendants’ behalf. Thus, absent any evidence to establish that the defendants created the condition, or would have been made aware of the condition by another building employee, his complaint had to be dismissed. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06290.htm Previous Next Contact

News NJ Deemer statute metaphysically endorses Out-of-State Auto Policy February 11, 2011 < Back Share to: It is well established in New Jersey that unloading of a truck involves the “use” of that vehicle for purposes of omnibus auto insurance coverage. When an injury occurs during unloading then, provided that the injury arose out of the unloading operations, the auto insurance policy provisions apply to the claim. But what if the auto policy is issued out of state? Do the New Jersey omnibus insurance obligations prevail where that policy includes exclusions that would preclude such coverage? The answer boils down to whether the out-of-state policy was issued by an admitted carrier. If so, the New Jersey Deemer Statute requires the policy to be read in accordance with the State’s omnibus insurance provisions which in effect “metaphysically” endorse the out-of-state policy. To the extent that such a policy would deny coverage for an unloading injury, pertinent policy exclusions are held invalid. Significantly though, the remaining policy terms, such as policy limits, remain in effect as written. In The Burlington Insurance Company v. Northland Insurance Company, the Hon. Dickinson Debevoise, U.S.S.D.J. of the New Jersey District Court ruled that a general liability insurer was entitled to reimbursement from a commercial auto insurer for such a claim. Northland, an admitted New Jersey auto insurer, had issued a Pennsylvania insured a Pennsylvania commercial auto policy. When Northland failed to evaluate coverage for an unloading accident that occurred in New Jersey under this State’s deemer statute, a declaratory judgment action followed. The Court held that the Pennsylvania commercial auto policy indeed covered the unloading accident up to that policy’s full limits and that the liability insurer was entitled to reimbursement for defense and indemnification costs of its insured as well as costs incurred in the declaratory judgment. http://pdf.wcmlaw.com/pdf/northland.pdf For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News SDNY: Suit Alleging Christie’s Misidentification of da Vinci Work Time Barred February 12, 2011 < Back Share to: While the art world is riddled with forgeries and stolen works or art, some dealers may also have to be mindful of the reputable auction houses which display their collections. Last week, District Judge John Koetl of the Southern District of New York, dismissed as time barred an action by Jeanne Marchig, and her charitable trust, against Christie’s -- http://www.courthousenews.com/2011/02/02/DaVinci.pdf The suit alleged that Christie's negligently failed to identify her piece of art as a valuable drawing done by Leonardo da Vinci. The relevant facts are as follows. Jeanne Marchig approached the London location of the famed auction house seeking to consign and auction off a drawing she believed was composed by a late-Renaissance Italian painter. Christie’s resident old master drawing’s expert examined the piece and set an estimated value of $12,000-15,000. In January 1998, it ultimately sold at auction for $22,000. More than 11 years later, in July 2009, Marchig was approached by other experts in the art world who believed her previously sold drawing was actually the work of da Vinci, and could be valued as high as $100 million. Marchig brought an action against Christie’s claiming the auction house had been careless and failed to properly investigate her drawing. While both sides engaged experts to determine the authenticity and true origin of the work, Christie’s moved to bar the claims as untimely, alleging the applicable statute of limitations (3 years – negligence, breach of fiduciary duty and 6 years – negligent appraisal) had long since expired. Judge Koetl agreed and dismissed the action as too much time had passed between the appraisal in question and the suit. Special thanks to Chris O'Leary for his contributions to this post. For more information about it, or WCM's fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Failure to Prevent Bullying = Liability for Discrimination? September 29, 2011 < Back Share to: Last week New Jersey legislators passed an "Anti-Bullying Bill of Rights." The bill revised the 2002 New Jersey law on harassment, intimidation, and bullying in public schools. According to one legislator, the Bill "makes it clear that preventing and responding to incidents of harassment, intimidation and bullying are not optional." Rather the Bill sets forth specific protocols for investigating, reporting and training necessary to deal with bullying. The question for schools and courts to consider going forward is whether implementation of the protocols and/or the failure to do so, will render the schools liable in discrimination suits commenced by/on behalf of the bullied students. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nj.com/news/index.ssf/2010/11/nj_legislature_sends_anti-bull.html http://www.njleg.state.nj.us/2010/Bills/A3500/3466_S1.PDF Previous Next Contact

News PA Appellate Court Clarifies Insured’s Right to Own Counsel. August 8, 2011 < Back Share to: In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client. Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News Landowner Not Liable For Hidden Defect In Fallen Tree January 8, 2009 < Back Share to: In Down v. Town of Oyster Bay, the Supreme Court of Nassau County recently held that a tree's internal staining and discoloration are not outwardly visible signs of a defect and, in doing so, granted the property owner summary judgment against the plaintiff’s claim that she was injured by the defendant’s falling tree. The court declined to impose a duty on a landowner to constantly check all trees for non-visible decay. Instead, the court held that a landowner is only required to take action if there are signs of decay or disease readily observable. http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/LALLY/2008DEC/001125-07.pdf Previous Next Contact

News Mt. Sinai WTC findings called into question. September 10, 2007 < Back Share to: NYT calls into question validity of Mt. Sinai findings in respect of 9/11 clean-up workers who allege exposure to toxins. According to Times, the extent and scope of the injuries may be grossly inflated. http://www.nytimes.com/2007/09/07/nyregion/07sinai.html?_r=1&hp&oref=slogin Previous Next Contact