Friday, May 31, 2019

Lawmakers look to make New York even more litigious

Ask entrepreneurs or non-profit executives what makes it so difficult to run a business or serve the community in New York State and you’ll hear the same things over and over. Taxes. Regulations. Mandates.

It’s not too often that you’ll hear mention of the state’s litigious environment even though it’s just as bad, if not worse, than all those other issues.

Maybe that’s because it’s a hidden cost.

You can’t really see the financial impact directly as you can with New York’s other burdens – not like you do when you run equipment at your facility or try to change your policies and procedures to meet new state laws.  

Instead, the upfront costs are buried in the liability insurances we all must carry. Then, there are the unanticipated costs that occur when a lawsuit is levied against an organization or an individual for alleged malpractice or injury, or potential harm. 

A 2017 study by the Empire Center found liability costs in New York exceed $20 billion a year. If those costs were passed on to every household in the state -- which really they are, in a way, because all affected organizations and insurers have to pass their costs on to their clients --- it would work out to be $2,700 annually.

Some of the examples cited for that extravagance: We are one of a dozen states that allow people to recover damages even when they are found primarily responsible for their own injuries; we encourage plaintiffs’ lawyers to target the defendant with the most money even if it is least to blame; and, we have unlimited noneconomic and punitive damage awards, fomenting a risk of high payouts.

It’s no wonder that New York City and Albany consistently rate near the top nationally in the American Tort Reform Association’s annual “Judicial Hellholes” report.

New York has become so attractive to those individuals who want to sue everyone that they have caused law to become a growth industry in the state, whether it’s for get-rich-quick lawyers or those across the courtroom from them who look to defend those being sued.

From 2008 to 2017, the number of lawyers practicing in New York climbed 20 percent which is 10 times the state’s rate of population growth. There are now more than 177,000 lawyers here. That’s one lawyer for every 112 residents -- twice the national average.

With skewed numbers like that we, of course, have too many lawyers in the statehouse. One-in-every-four state legislators has a law degree, placing New York among the top states in that regard. Many of them are decent folk intent on doing good for the people of New York State, but we know that not all of them are: We have lawyers serving as lawmakers who are making laws that serve lawyers.

For proof of that look no further than the disgraceful and disgraced Sheldon Silver, the former long-term Assembly leader who was defrocked for a number of things including misusing public office to drive people to a law firm he worked for, reaping a profit while doing so.    

So, if things are really that bad with tort law, what is the State Legislature to do?

Well, as is the modus operandi of the state’s leadership, they are certainly not in tune with making things better. They plan to make matters worse. 

Two bills have been making their way through committee in Albany that will expand the litigious nature of the state and make it even easier to sue and reap massive rewards.

S.2407B/A.679B would expand the consumer protection deceptive acts and practices section of general business law. It adds the simple yet nebulous word “unfair”, creating a broad and open-ended definition of excessive or unreasonable actions. If this were to pass, defendants would be liable if they, in the eyes of the court, could have known or reasonably should have known that a plaintiff was physically infirm, illiterate, or unable to understand an agreement. The bill also further promotes larger lawsuits by increasing the minimum damage to $2000 and awarding attorney fees.

S.4006/ A.561 amends the Estates, Powers and Trusts Law in relation to payment and distribution of damages in wrongful death actions. It greatly expands remedies for the family of a person who died as a result of negligence to obtain non-economic compensation, allowing for recovery of a decedent's pain and suffering. The Business Council of New York State believes this bill alone would drive up liability insurance costs by double digits.

If you’re sick of seeing businesses close or leave for greener pastures, if you’re equally sick of the incredible number of injury attorney ads on TV, write your legislators to oppose these bills. Businesses and non-profits are getting it handed to them every day with high costs and unconscionable risk -- we can’t subject them to more expensive insurances and even greater chances of getting sued for astronomical sums.

From the 03 June 2019 Greater Niagara Newspapers and Batavia Daily News

Friday, May 24, 2019

Memorial Day and the magnitude of sacrifice

This column runs in newspapers that predominantly serve readers in Niagara, Orleans, Genesee, Livingston, and Erie counties. The total population of those counties approaches 1.4 million people.

Suppose you went on vacation and came back only to find all of those counties as ghost towns. Every home, every apartment, vacant…no one anywhere in places like Buffalo, Niagara Falls, Lockport, Batavia, Geneseo, and Medina. Communities large and small, empty, silent, forlorn.   

That apocalyptic vision should give you a feel for the scale of sacrifice that has led to the observation of Memorial Day.

Since the start of the Revolutionary War, Americans whose numbers are identical to the population of this region paid the ultimate price for our nation’s goals, the American Way and the pursuit and retention of freedom.

Think of what those warriors accomplished for the benefit of their countrymen and generations of Americans whom they would never meet:

America, the greatest and freest nation ever conceived, would never have existed had men not fought to the death against British tyranny.

She would never have remained intact, nor would 3.5 million blacks have been freed from slavery, had the North not found it morally necessary to preserve our nation and better the human existence.

The whole modern world would have been torn asunder and many millions more innocent lives taken by evil had we not entered the two World Wars which cost over a half-million American lives.

Communism would have gained immeasurable might and influence had we not waged a proxy war against its principle powers – China and Russia – in the Koreas.

58,000 perished while having the honor, patriotism and allegiance to stick with America -- regardless of our nation’s nasty sociopolitical divide -- during the Vietnam War, the most contentious conflict in our history.

The War on Terror was waged in Iraq and Afghanistan, with our men and women volunteering to fight for our security, wanting not to see a recurrence of 9/11 on our soil and ensuring those who initiated the attacks experienced what their victims had. Nearly 7,000 lost their lives in those theatres.

Those high profile wars mentioned above are but a few of the dozens that have occurred in and out of our borders. America’s history has long been saddled with military conflicts and occupations, warranted and unwarranted. No matter those circumstances, in all of them, sons and daughters, fathers and mothers, perished.

Those soldiers, sailors, marines and airmen gave their lives so that we might chase the American Dream, strive to achieve the impossible, and live our lives to their fullest potential and enjoyment. They understood that even with her blemishes America has been, is, and will be a nation of power, honor and integrity, just as those individuals were in the moments leading up to their ultimate sacrifice.

Without them, we wouldn’t have everything we savor in this great nation of ours: free markets, a free press, and a free people. None of those “free” things are truly “free”. There was a cost. Blood was spilled and lives were lost to achieve and keep them.

So, it’s vitally important that each and every one of us take some time today to honor those who fell in battle. You need not partake in a parade or attend a solemn service but you should, in your own way, quietly and genuinely reflect upon and appreciate the accomplishments and lives of our fine armed forces of wars past and present.

From the 27 May 2019 Greater Niagara Newspapers and Batavia Daily News

Friday, May 17, 2019

Let ex-felons serve on juries

Last week, the New York Senate approved a bill that would allow convicted felons to serve on juries. A similar bill has worked its way through committee in the Assembly and might, or might not, come to a vote before this legislative session ends in five weeks.

The proposed law marks a significant change to existing standards which impose a lifetime ban on anyone convicted of a felony. Under the guidelines passed by the Senate ex-felons would be eligible to help pass judgment on criminal and civil cases after having completed any sentencing related to their conviction, be it prison, probation or community supervision.

The bill was passed along party lines and the Republican members of the Senate took to the press to voice their displeasure over what the Democrats had done. Of course, their like-partied constituents complained on social media outlets, considering it a disgusting move by Albany as it puts who they consider to be lowlifes in power to decide the fate of parties who are accused of a crime or battling it out in the courts.

I, on the other hand, would have no problem with a once-convicted juror.

I’ve been under the gun in civil trials. I likely will be again; it comes with the territory of running a business of decent size that serves a variety of clients and makes water-based leisure products. So, I know the value of good jurors.

Just last year, I was party in a trial that lasted two weeks. At the end of it, the jurors made their decision and ruled that my company was not at fault. Had they gone the other way it’s likely the company would have folded.

It took the jury nearly two full days to deliberate because there were a few other defendants – individuals and corporations -- involved in the trial as well, and they had to take their time meting out responsibility if there was any at all. I appreciated the time and effort they put into it.

Their thoughtfulness was an outcome of the make-up of the jury as they were a diverse bunch – from lower-income workers to white collar types to retirees to housewives.

When people are deciding your fate, that’s what you want. You are best served by people from all walks of life, jurors with their own experiences, worldviews, and observation and interpretation skills.

By “all walks of life” that means everyone, warts and all.

In the future I would gladly accept a former felon on the jury because he has seen and been through things that the others might otherwise be unable to relate to and, more so than most on the jury, he understands the legal procedures and what the jury is actually supposed to do.  

I know that he wouldn’t be any less of a person, in God’s eyes, than those sitting beside him. Yes, he committed a heinous crime, or what society believes to be a heinous crime, but he faced his punishment, served his time, and suffered the woes of incarceration and the joys of reformation. If we did our job as a just people and a just penal system, he came out a better man and stronger man.

Those against affording ex-convicts rights such as jury duty or voting would say that the unconscionably-high recidivism rates show that many of them aren’t better people.

Is it that they aren’t better people or that we aren’t better people?

Do we drive some young men to recommit because we deny them rights after having paid their dues, brand them with a modern day Scarlet Letter and turn them away when they look for gainful employment that affirms a new life for them?

If we claim to be a just people – a mantle we always proclaim with our legal system, churches, schools, and families, as well as social media’s cause du jour – then why are we not just to those who have been served our justice at its fullest?

They have paid their debts to society. It’s up to us to welcome them back into it, rather than driving them away from it.

To do so, we need to offer them the same chances that we law-abiding citizens have. Not only do they deserve and want to pursue a career, but they also deserve and want to be contributing members of society to, among other things, have the power to vote and to contribute to our judicial system.

As a nation, we’ve done our darnedest – and spent our darnedest -- to institute and employ a penal system to transform them into good citizens.

So, let them be able to be just that.

If we don’t, what good was all of our talk, tax dollars, efforts, and alleged moral superiority?

From the 20 May 2019 Greater Niagara Newspapers and Batavia Daily News