The jury trial is vanishing, should anyone care?

Chuck Otey’s Pro Bono Barrister

October 1, 2014 By Charles F. Otey, Esq. Brooklyn Daily Eagle

Arthur Schack at a Community Board 10 meeting.

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First, some perspective. Back in 1973, on a chilled winter morning, several hundred lawyers — members of the New York State Trial Lawyers Association and the Bay Ridge Lawyers Association, among others — traveled en masse to Albany to do battle against the possibility of the Legislature passing the dreaded automobile insurance No Fault Law!

No Fault, it was widely feared, would wipe out automobile negligence litigation and snatch from tens of thousands of injured New Yorkers the right to their day in court.

The late Frank Maher, a noted defense attorney, and Ray Ferrier organized the Bay Ridge Lawyers contingent, which traveled upstate to meet with influential area legislators Sen. Bill Conklin and Assemblyman Dominick DiCarlo, both Republicans.

Sen. Conklin — like others of his party and “swing” Democrats — was gracious to these visitors, who were also, invariably, constituents. Within a day or so, however, with strong lobbying backed by Gov. Nelson Rockefeller, the new No Fault laws were passed.

With Gov. Rockefeller, a known friend of the insurance industry, in charge of the state and members of the public outraged because they were convinced that trial lawyers were to blame for an unprecedented, rapid rise in insurance rates, it looked as though trial lawyers had lost the day and that many citizens would lose their treasured day in court.

Somehow, the insurance lobbyists — who probably wrote the measures — left in some very pliable loopholes. In fact, some of these critical omissions were “leaked” to local lawyers by Assemblymember DiCarlo.

What followed was not exactly a bonanza for Big Insurance. Many carriers, such as American Transit and Empire, faced disaster because No Fault opened the door to a new landscape of litigation. It ushered in the era of the (so-called) “verbal,” $500 medical and other thresholds. Physicians saw this threshold as the entrance to an avenue of substantial profits.

Somehow, after No Fault was enacted into law, just about every auto accident victim who walked, or was wheeled, into their offices would incur medical expenses easily exceeding the $500 threshold, preserving their day in court.

* * *

No Fault Insurance Fight Was Just the Beginning

Big Insurance wasn’t about to throw in the towel, however; it targeted states with more susceptible legislators (e.g. Texas) with tort reform, which actually meant more profit to the carriers and bupkes for accident victims. (In fact, a man from Midland found his way into the Texas governor’s mansion by “working” with insurance lobbyists, to become known later as the “Tort Reformer-In-Chief” when he became President.)

Hundreds of millions of dollars were spent, very effectively, convincing potential jurors that personal injury claimants were malingerers and leeches whose truly worthless claims were forcing insurers to raise their rates again and again. In truth, one suspects that a real reason insurers raised their rates so rapidly was twofold: (a) to convince the public they were right about litigants hitting insurers in the pocket and (b) they needed the money to “influence” legislators and finance an extremely expensive and lengthy propaganda campaign.

It seemed their goal was to “brainwash” jurors and even drive away potential litigants. (Historical note: another friend of Big Insurance, Dick Cheney, didn’t let his business alliances interfere with his personal life and reportedly brought forth at least two lawsuits involving auto accidents.)

There are many reasons why civil jury trials are diminishing these days. The massive insurance tort reform onslaught is just one of them.

The Kings County American Inn of Court will delve into many of these reasons at its next CLE-accredited session, titled “The Jury Trial Is Vanishing: Should Anyone Care?”

Led this year by President Dave Chidekel, a distinguished panel will help Inn members probe this timely topic on the evening of Sept. 30 at Brooklyn Bar Association headquarters, 123 Remsen St. Inn Administrator Lucy DiSalvo advises that a delicious buffet will be provided beforehand, starting at 5:30 p.m.

Other Inn officers include President-Elect Justice Arthur Schack, Counselor Justice Miriam Cyrulnik and Treasurer Jon Besunder.

Inn founders include Justice Marsha Steinhardt, retired Justices Gerard Rosenberg and Abraham Gerges and former Justice Edward Rappaport, who now serves as the president emeritus. Among those serving as Inn masters are Justice Carl Landicino, Judge Joanne Quinones, Hon. Barry Kamins, Appellate Division Justices Cheryl Chambers and Sylvia Hinds Radix, Hon. Gloria Cohen Aronin, Steve Harkavy and Steve Goolnick.

Inn executive director is Jeffrey Feldman.

The panel is composed of Acting Supreme Court Justice Robin Garson, barristers Steve Harkavy and Victoria Lombardi.(Correction: last week’s “Pro Bono Barrister” erroneously stated that the topic of this upcoming Inn meeting would be “A Day in the Life of a Lawyer” — probably panel member Steve Harkavy. “PBB” regrets the error.)