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August 26th, 2021 Confirmation Bias, the Vaccine and Science

Every trial lawyer knows the drill: Some jurors have preconceived notions of what the verdict should be long before summations. They seek, during the trial, for little more than select facts to confirm what they already believe in their hearts.

There are others, for sure, that do what they can to keep that open mind. They want to first get every fact, and then decide the issue.

Confirmation bias and science are polar extremes.

Confirmation is obvious in politics as so many will do what they can to justify the conduct of those on their team. We see this every day.

Perhaps the easier way to see it is that it often rears its head with this thing we call personal relationships. We meet someone and, perhaps, we really, really, really want it to work out. Its very hard to see the bad when someone smiles at us just so. We see the good facts and ignore the bad.

When framed in the context of romantic relationships some are more likely to understand the concept.

It would be fair to call confirmation bias in this manner little more than human nature. We want to be happy. And it keeps matrimonial lawyers very, very busy.

So we turn to the recently approved COVID vaccine. No longer under emergency use authorization.

You would think that those screaming it was experimental, as an excuse to be anti-vax, would now be silent. Well, you would think that only if you were thinking in terms of facts and science. Not emotion. Not what the heart really, really wants to believe.

Anti-vaxers continue to persist in the face of science, coming up with continued reasons for why it is bad (which I refuse to link to).

Some will come up with the idea that they have great immune systems and that it cant possibly happen to them. Others have a variety of tin foil hat conspiracies that defy Occams razor. Or see a history of government malfeasance. Some are just scared.

This is a problem exacerbated by social media and search engine algorithms that feed us information that wed previously searched for, thereby reinforcing with facts that which wed already decided.

Human emotion is tough to alter. In the courtroom, we can look jurors in the eye and explain that it must be the head that makes the decision and not the heart. Listen to all the evidence.

And in the courtroom we can (hopefully) debunk junk facts and junk science with cross-examination.

We can also, perhaps most importantly, alert jurors (starting with jury selection) that this process may occur. If the head sees confirmation bias coming, we hope it will alert the heart. (Of course, if you have lousy facts and are defending, you might want the heart to be making that decision.)

Getting rid of such potential jurors is obviously the first priority, but when people are unable to recognize confirmation bias in themselves, they believe they are being fair and impartial. Finding them is not always easy.

Getting people to recognize that confirmation bias is human nature, that we all want our preconceived notions to be verified with fact and to be on the lookout for it, is sometimes about the best we can do. Because it is also human nature that the more people hammer you to change your mind, the more you resist.

Its the type of thing people must recognize in themselves. You can lead the horse to water, but

Im not so self-centered that I believe I can persuade an anti-vaxer to give up the constant hunt for any kind of fact that supports what the heart has already decided. They do approach the issue, after all, in different ways.

But perhaps, just maybe, an appreciation of how confirmation bias impacts all of us in our daily lives may cause some to take step back and re-visit an issue the heart had already decided.

And maybe, just maybe, that horse will drink on its own.

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July 14th, 2021 What is a Signature? (Does your unsigned email count?)

We lawyers love, love, love our formality, oft times filling pages with pretentious legalese. Im sure that wax seals and red ribbons were invented by lawyers, to make doubly, triply sure that everything was authentic. And redundant.

And when seals and ribbons went by the wayside, wet ink signatures became the standard-bearer of authenticity.

Last week the Appellate Division (First Department) confronted the formality of signatures regarding a settlement. The court sought to answer a question: If lawyers agree to a settlement via our now ubiquitous email, but use a standard signature block instead of retyping their names, is a settlement valid?

In other words, what kind of seals and red ribbons do we now need?

While at first blush this looks like a small esoteric question of law regarding the informality of email and the courts respect for stipulations, it has the potential to carry over to a thousand different aspects of law as now practiced.

The fact pattern of The Matter of Philidelphia Insurance v. Kendall is not too complicated (if you practice personal injury law here in New York), but for the others a short background: The liability insurance you buy for your car is not for your injuries, but for the injuries of others in a collision. Thus, if the other person has only a $25,000 policy, you might be shit out of luck a technical legal term if you lost your leg. Thats why you buy Supplementary Uninsured/Underinsured Motorist (SUM) insurance. That part is for you. If the other driver has only $25K in insurance, and you have $1M, you can turn to your own insurer for the $975K difference.

And thats what happened here. Kendall was clobbered in a collision. The motorcycle that hit her had only the 25K minimum but she had $1M in SUM. She collected the $25K from the other driver and proceeded to arbitration against her own insurer.

According to the decision, this funky fact-pattern popped up regarding the arbitrators decision and settlement with the arbitrator awarding the maximum 975K. But Kendalls lawyer settled for only 400K because he hadnt see the decision yet:

The arbitrator rendered her decision on September 16, 2019, awarding Kendall $975,000.The same day, the decision was emailed to Kendalls counsel and faxed to Philadelphias counsel. However, neither counsel received the decision and they continued to negotiate. On September 19, 2019, the parties reached an agreement to settle the dispute for $400,000.

How did they shake hands on this deal? Via email:

On that day [Kendalls] counsel emailed [Philadelphias] counsel: Confirmed -we are settled for 400K. Below this appeared Sincerely, followed by counsels nameand contact information. Shortly thereafter, [Philadelphias] counsel emailed in reply, attaching a general release, styled a Release and Trust Agreement, and saying, Get it signed quickly before any decision comes in, wouldnt want your client reneging. [Kendalls] counsel answered, Thank you. Will try to get her in asap. This email concluded with the same valediction, name, and contact information as had [Kendalls] counsels earlier email.

The lawyer for the injured Kendall then learned of the $975K decision and wanted to go back on the $400K agreement, arguing that it wast subscribed as per CPLR 2104 by retyping his name in the email in addition to his prepopulated contact information block. 

So, is the email agreement in writing as required by statute? If it sounds like a boring one-off kinda issue, you are not thinking of all those emails you send on a daily basis and how those might be viewed by a court.

Now previously, our Court of Appeals had held that a preprogrammed name on a fax transmission did not fulfill the subscription requirement. So email should be the same, right? (Parma Tile Mosaic Marble Co. v Estate of Short)

The times, they are a changin. A mid-level appeals court has now held that the old fax decision from New Yorks top court is not controlling as the practice of law has changed:

The Parma court wrote in a different era, when paper records were still an important modality, maybe the most important modality, of recording information in law and business. Since that time, the electronic storage of records has become the norm, email has become ubiquitous, and statutes allowing for electronic signatures have become widespread.For these reasons, and those that follow, we find thatParmais not controlling.

While this very same court held in 2013 that an email in which a partys or its attorneys name is prepopulated in the email is not sufficiently subscribed for purposes of CPLR 2104 it has now reversed itself and said wet ink signatures are not needed, nor is any retyped signature:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.

In fact, even the signature block doesnt appear to be needed it must only be sent from the lawyers account, forming a rebuttable presumption that the lawyer sent it:

We find that if an attorney hits send with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature.

But wait, theres more: It has been customary over the years for defendants and insurance companies to create ever more complex general releases and settlement agreements. Back in the day, the simple Blumberg form was the gold standard, until those that bill by the hour figured out there may be a bit more gold to be mined by creating ever more complex forms.

The First Department, however, found that the simple email was binding when the sole issue was the amount of the settlement. The digital handshake was good enough, and the formal release wasnt particularly relevant as it is merely a ministerial condition:

The Release and Trust Agreement was to be further documentation of the binding agreement constituted by the parties counsels emails agreeing to settle respondents claim for $400,000, rather than something on which that binding agreement was contingent. The material term of the parties agreement to settle respondents claim being the sum of money that petitioner would pay respondent, respondents execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a].

So, your emailed agreements will be held up the same as if they had a fancy wax seal and a red ribbon. And probably so too with any other assertion that you make. And those complex general releases that defendants like to waste time with may well be meaningless to a court.

Dont think twice before hitting send. Think it though three times. Because send is your signature.

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July 2nd, 2021 July 2nd: A Day to Declare Independence (And Celebrate Juries)

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence)

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Ångest är en av de bidragande faktorerna som leder till erektil dysfunktion hos en frisk man. Den första upplevelsen av ED kan störa människans liv längre fram xn--bstapiller-q5a.se/kamagra/. Ångest kommer att stiga om och om igen, och erektil dysfunktion kommer sannolikt att återkomma. Detta leder till problem med människans efterföljande sexuella prestanda.Tweet

June 24th, 2021 Giuliani Suspended from Practicing Law

Racing around the interwebs today is the fact that New York has suspended Rudy Giuliani from practicing law. Its an interim suspension he hasnt had a hearing yet. That is a tough thing to get in New York, but it happened for two reasons: The uncontroverted claims of professional misconduct and his conduct immediatelythreatens the public interest.

The fundamental issues regarding the claims of misconduct deal with his assertions of voter fraud in Pennsylvania, Georgia and Arizona. Over and over again he screamed fraud. The Appellate Division (First Department) wrote that Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President DonaldJ. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.

The problem, of course, is that when lawyers make statements of fact in their capacity as a lawyer (not in their capacity as the Tooth Fairy or April Fools hoakxster) we are expected to have evidence to support our statements.

For the vast majority of people, lying about the election might well be protected First Amendment speech (unless with pitchforks and torches inland, storming the castle Capitol is urged. But thats for another day.)

But the First Amendment doesnt apply the same way if you are handed the privilege of representing people in court. You get something but there is a price for it. We are not free to lie to a court. The Court here wrote:

It is long recognized that “speech by an attorney is subject togreater regulation than speech by others. Unlike lay persons, an attorney is a professional trained in the art of persuasion . As officers of the court, attorneys are an intimate and trusted and essential part of the machinery of justice. In other words, they are perceived by the public to be in a position of knowledge, and therefore, a crucial source of information and opinion.

So while the lawyer hat is on, we play by different rules. We still have our First Amendment rights to spew nonsense if we like, just not while wearing that particular chapeau.

The Court then launches into a dizzying and well-documented array of particulars regarding his conduct in Pennsylvania, Georgia and Arizona. Its a helluva list that includes his conduct at Four Seasons Total Landscaping, boxer Joe Frazier, claims of dead people voting, boxes or suitcases of ballots under desks and thousands of undocumented voters.

The Court painstakingly discusses how each was utterly and completely unsupported by evidence. One example of many is claiming that Pennsylvania mailed out 1.82M absentee ballots but that 2.59M were counted. This was false. In fact, 3.08M had been set out.

But being wrong is one thing. Repeating it after learning you were wrong is a different story. The Court wrote: Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.

The Court then proceeds to document numerous times he made the false statements after learning they were false. And continued making false claims even after the Attorney Grievance Committee brought this motion against him!

The Court went on to document his false claims that tens of thousands of dead people voted in Philadelphia.

In Georgia, Giuliani claimed to have “hundreds of pages of affidavits and declarations that document gross irregularities” including tens of thousands of underage voters. He produced nothing. Nada. Bupkus.

And in Arizona he made utterly unsubstantiated comments that tens of thousands of undocumented people had voted, despite the fact that no statewide check on undocumented noncitizens had been performed.

While the hearing hasnt been held, Giuliani did have an opportunity to be heard on the interim suspension. There was a motion and he failed to come up with the goods. Likely because he doesnt have them.

While many will write stories about this event it is the evidence part that really jumped off the page. Lawyers are supposed to have it when making claims. Giuliani claimed he had it. But he couldnt produce it. And he did it with his lawyer hat on.

The second part of the decision deals with conduct threatening the public interest, because lying alone isnt generally likely to lead to a suspension before a hearing (though the courts are pretty damn sensitive when it comes to client funds). One of the standards a court may use is conduct immediately threatening the public interest. (22 NYCRR 1240.9[a])

At this point the Court gets to the heart of the matter, that Giuliani was using his lawyers fedora to undermine both the practice of law and faith in the legal profession, and democracy itself, with his lies. And that includes the January 6 insurrection :

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made byan attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source ofreliable information (Matter of Nearing,16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn,436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about theelections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that thefalsehoods themselves cause harm.This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy ofthousands of validly cast votes, is corrosive to the public’s trust in our most importantdemocratic institutions.

The misrepresentations are so well documented that I am guessing that he will end out with a real suspension after a hearing, or disbarment. He will get another shot to defend, he will have competent counsel, but this will be an uphill battle for him. If he had evidence that he was merely mistaken, and not fabricating crap, he would have laid that on the table.

A final note, and I cant help but think that this was a significant factor in deciding to suspend before a hearing: Giuliani claimed in his response that he is not a threat because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore. He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.

And yet, the Court found that, Notwithstanding respondent’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite.

The Court found, We cannot rely on respondent’s representations that he will exercise restraint while these proceedings are pending.

If theres one thing a Grievance Committee really, really hates, its when lawyers lie to them.

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June 18th, 2021 Military Members Can Now Sue for Medical Malpractice

I wrote about the Feres Doctrine 18 months ago that being the Supreme Court decision holding that military members couldnt sue for medical malpractice, even if it occurred in non-combat situations.

I wont repeat it all. Go read the link. The short version is this:

Did your stateside barracks burn down? Sorry Charlie.Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant?Tough noogies. Your wife died from blood loss after child birthbecause of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

TheFeres Doctrineprevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

In December 2019 that changed a bit that, when it allowed members to now sue for $100K, which was a silly limit for the reasons that I explained.

Now head to this next link: Because the Feres Doctrine is now gone. Military members can now sue, and the $100K limit is kaput, as we say in legalese. The change in law was inspired by yet another miscarriage of justice:

a provision in the 2020 National Defense Authorization Act, which sets policy and spending priorities for the Pentagon, ended the ban on suing for medical malpractice, after Sgt. 1st Class Richard Stayskal and his attorney, Natalie Khawan, petitioned lawmakers to change the law. The Feres ruling barred Stayskal from filing suit after military doctors during a routine physical in January 2017 failed to inform him of his lung cancer, which grew to be terminal.

Heres the new rule, directly from the Federal Register:

A substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues. However, the statute allowed Service members to file claims in 2020 for injuries that occurred in 2017.

May you and your loved ones have no need for it.

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His firm's website is at: www.TurkewitzLaw.com.

Cases of NoteCar Accidents and CollisionsMedical MalpracticePremises LiabilitySurgical MistakesBus Accidents and CollisionsTruck Accidents and CollisionsTrain Accidents and Collisions

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The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York’s Rules of Professional Conduct (though we don’t think so).

Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others, that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained.

Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice.

Finally, we are not responsible for the comments of others that may be added to this site.

About the New York Personal Injury Law BlogAn attorney's blog on New York personal injury law, medical malpractice, the civil justice system and cases of interest.
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