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SB.dunes.left.Shrunk.jpgInformation and investigations go hand in hand. Whatever you investigate, whether it’s insurance fraud; where that priceless, uninsured, artwork went after two rogues in police clothing strolled in late one night and took it from Boston’s Gardner Museum; or who the one-armed man really was; you need information, lots of information, to figure it out. But does information always help?

When you investigate insurance fraud, you need information to confirm coverage for a given claim; to determine whether the claim really happened the way the insured said; to establish whether the insured submitted a fraudulent and/or exaggerated claim. You take his recorded statement and examination under oath. You interview witnesses and get corroborating documents. You get … information.

Can you ever have too much information, though? Can an investigator, in effect, be buried in an avalanche of so many facts, have so much information, that she doesn’t know what she has and misses the answer? At least according to an article in Thursday’s Wall Street Journal, the answer is an emphatic yes.

The article, on the front page of the December 26, 2013 Wall Street Journal, is about the NSA. Yes, it mentions Edward Snowden, but it really isn’t about him. It features William Binney, a former NSA analyst who’s been retired for a dozen years. It really is about Mr. Binney’s claims that the NSA’s spying, the collection of all the metadata, the who-to’s and the where-froms, of all of the calls of all of the people the NSA is supposedly collecting, hurts more than helps. Not that it hurts me or you directly, but that it hurts the NSA itself and keeps it from completing its mission: tracking down the bad guys and preventing terrorist attacks.

The most telling line in the whole story is when it eloquently sums up Mr. Binney’s complaints about the NSA: “It knows so much, he says, that it can’t understand what it has.” And that, to put it mildly, can be a problem. Any votes on what would be worse: not being able to figure it out because you don’t know enough or because you know too much but don’t realize what you have? It seems like a tie: either way you lose; you still don’t have the answer.
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night sky.jpgOur last post was about how sometimes it’s easier to tell a lie than others; scientific research suggests it depends upon what you’re lying about. Well, there’s another new study that says sometimes, just sometimes, people are honest about their lying. In other words, they’ll admit it; not always, not under every condition, and definitely not everyone, but definitely sometimes.

Lying has been in the news a lot recently. For sports fans, there’s the old tried and true theme of performance enhancing drugs: did he or didn’t he use them? Think of Lance Armstrong. He long said he didn’t and then admitted that he did. For news junkies, there’s Bashar al-Assad. The Syrian president said he didn’t use chemical weapons, then the United States said he did, and he’s now giving up his chemical weapons stockpile, if only someone will find a suitable place to destroy it. It’s hard to say you didn’t use chemical weapons if you’re giving them up so you can never use them again. Wouldn’t it be a whole lot easier if the world could know, before things get out of hand, who’s telling the truth and who is lying? Truth detection is more of an art than a science but, there is some science to help the effort along the way.
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thread-spool-1378256-m.jpgLying and Insurance Fraud go together. Cheat, steal, get caught, admit it; which one doesn’t belong? Better yet, be honest when you cheat. No, that doesn’t work either. Most every time someone tries to get away with something he shouldn’t, chances are he’s going to lie about it somewhere along the line. Investigators need to know how to ask questions, elicit answers, and get at the truth; so, chances are, they should all know a good lie when they hear one.

Detecting, and exposing, lies also is a big part of trial work. A trial attorney wants to make certain that the jury at least will doubt, if not see right through, slanted testimony; will see the inconsistencies, understand the contradictions, and punish the lies; or even scoff at the willful forgetfulness. Cross-examination, impeachment in general, and artful closing arguments all can accomplish this. Knowing a lie is essential to ensuring that everyone else does, too.

Everyone thinks they know a lie when they hear one. They believe they can tell the difference between a deliberate falsehood and an innocent mistake. That’s probably one reason lying is the focus of so much comedy. Think of the Jon Lovitz character from Saturday Night Live, with his blatant lies getting cackles from the studio audience. Then compare him to poor little Emily Litella who seemed to spend most of her time trapped in an endless game of telephone, never getting things quite right, wondering what all the commotion was about violins on TV. Or think about how funny it was to see Jim Carrey playing a slick attorney in the movie Liar Liar, who, for 24 hours straight, had to tell the truth and nothing but the truth. Some lawyers, I mean every lawyer, thought that was funny; yeah, that’s the ticket.
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odd-sunrise-669835-m.jpgIf you ever wondered what money can make people do, all you have to do is look in the news and you’ll see it, even in the most unlikely places. The last time, we spoke about Auto Thefts and Insurance Fraud and how money motivates both. Everyone wants a dollar and some don’t want to work for it; they’d rather steal it, though a lot of time and effort can go in to the theft. This time, the news comes from a more unlikely source: the Deepwater Horizon oil spill and the BP settlement. They again show that when there is a big pot of money lying around, people will find creative ways to take it.

Everyone remembers the Gulf Oil Spill; it happened only a couple of years ago, on April 20, 2010. It dumped a tremendous amount of crude into the Gulf; between 103 million and 176 million gallons. It polluted the Gulf; fouled its waters and shores; and devastated the economy in the area. Most people can still see the pictures of oil-covered birds being hand cleaned; the fireball and smoke coming out of the crippled rig, with streams of water pouring in from surrounding boats trying to put it all out; and the frantic efforts to cap the well. If you notice, the ads urging you to come back to the Gulf are still running, all this time later. It all points out just how bad it was. It seems only right that people and businesses should be compensated for the money they lost through no fault of their own, because of the spill.

British Petroleum, or BP, has a problem with settlement proceeds going to those they consider undeserving. Their biggest complaint seems to be that businesses are being paid even though they cannot trace any loss back directly to the spill. There’s even a report in the London Evening Standard that lawyers are advertising in the Gulf area by claiming “there is no need to provide proof that BP caused your loss.” According to those same reports, BP believes it already has been forced to hand over $500 million to firms who suffered no actual losses from the tragedy.
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old-ships-8-1261209-m.jpgThere are a few things, when you look around today, that most people probably can agree on: Auto theft is a large problem; Insurance Fraud is a large problem; and both involve a lot of money. Neither is going to go away anytime soon; not in New York; not in the U.S.; and not anywhere else you can think of where money speaks louder than words. A recent news story brought this home in a big way.

The stats are impressive: In 2012, according to the FBI, there were 721,053 motor vehicle thefts nationwide, with 47,658 in the Los Angeles metropolitan area, 24,660 in the New York metropolitan area, and 24,218 in the Chicago metropolitan area. The money is substantial: the average dollar loss per stolen vehicle was $6,019; and the total loss, nationwide, was more than $4.3 billion. Just because a car is reported stolen doesn’t mean that Insurance Fraud is involved, though sometimes the theft is faked. Even where there is no fraud involved, however, it still has a big impact on the Insurance Industry, including those who provide the coverage and those who pay to be covered; i.e., just about everyone.
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notepad-1066735-m.jpgVacating a default judgement in New York, as we have previously discussed, is not always easy. Often it is up to the discretion of the trial court. There are certain times, however, when the defaulting party may not need a reasonable excuse for failing to appear, as long as it does not wait too long to ask the court to excuse the default. This can include parties, such as corporate defendants, who have failed to receive a summons and complaint at least partially through their own fault.

CPLR §317 provides in relevant part:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

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tranquility-1-998521-m.jpgWe’ve spent a decent amount of time discussing how lawyers try to persuade people. That, after all, really is their job: to convince a decision maker, be it a judge, jury, or appellate court, that their client is right and should have won, should live to fight another day, or at least should not have lost quite as badly as he did.

Does the way a lawyer persuades depend on the means by which he has to do it? Does it really make a difference if the lawyer is standing up before a jury or a judge at trial; laying out the case for why his client is entitled to judgement as a matter of law on a summary judgement motion; or is writing a brief on appeal? Does the art of persuasion depend on the means of persuasion, or is it more universal than that?

It’s not always easy to figure out why one side wins and one side loses. A lawyer can only play the hand he’s dealt, but he can do a lot to get everything out of the cards that he’s been given. Whether it’s Victor Sifuentes, Alicia Florrick, Joyce Davenport, or Jack McCoy, no two attorneys approach the same case the same way, and winning is never as easy as it looks on TV. When real life attorneys try to persuade, though, the successful ones always seem to keep the basics in mind.
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harvested-corn-field-1404711-m.jpgSummary judgement motions in New York are strange things. When used in the right way they can bring long, arduous litigation to an end merely by submitting papers to the court, without the need to call messy witnesses, susceptible to skillful cross-examination, to trial to be judged by a jury. They can be a lawyer’s best friend, or worst enemy. A lot depends upon the approach a lawyer takes towards them. They can take the place of a trial but how you approach them should be much like a trial. The actual motion depends upon the facts and circumstances of the particular case. There is an acronym that sums it up, one I often say to myself: KISS (as in: keep it simple, stupid). There’s also an apt idiom: break it down. Like a trial, it’s important to stay focused and to keep the decision makers focused on what you believe is important; because you have to give them a reason to rule in your client’s favor.

The legal standard in New York for succeeding on, and for defeating, a motion for summary judgement, is pretty clear. To win a motion for summary judgement, a party has to show that it is entitled to judgement as a matter of law. That sounds right, even if it is kind of a definition without a meaning. What it really means is that there cannot be any material issue of triable fact. That sounds a little more definite; after all, there are more complex, legalistic terms in that definition than in the first. But is it really clear? This is the first place to break it down: it means that there cannot be any real reason to go to trial. If there is something important for the jury to decide, something important enough that the way the jury decides it will go a long way towards determining whether one party or the other will win or lose the case, then that is where you are going: to trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980).
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carrot-and-potato-726930-m.jpgHow do you prepare a witness to testify at trial? That seems like a fair question; but what’s the best way to do it? It seems like there are as many different answers as there are people to answer it.

Everyone knows that when you have a trial, you need witnesses, and, no matter what kind of case, those witnesses need to testify. If a plaintiff sues a defendant, chances are that the plaintiff will testify about how the defendant caused her all sorts of injury, pain and suffering, heartache and grief, and should pay her an awful lot of money as a result. Likewise, the Defendant most likely will testify that he didn’t hurt anyone or anything; maybe it was all her fault, and, no matter whose fault it was, she wasn’t hurt that badly anyway. The same is pretty much true for any commercial dispute: the buyer will say she bought the part the seller recommended and it didn’t work as advertised so she wants her money back. The seller will say he gave the buyer exactly what she asked for and, if the part really didn’t work, the buyer must have installed it the wrong way in the wrong application.
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pool-1425956-m.jpgTrying cases in New York is fun; not the everyday let’s have a good laugh fun, but an exhilarating, team play, goal accomplished, touchdown, kind of fun. Dealing with jurors is a big part of the job: selecting them; persuading them; deferring to their decisions. Trial work and jurors: you can’t have one without the other.

It’s been a year since the Storm hit. In this part of the world, New York, New Jersey, and Long Island, that’s all you have to call it. Things were one way, always that way, and then Superstorm Sandy hit and everything changed. Lives changed; many aren’t back to normal. Homes were destroyed; many aren’t rebuilt yet. The Storm did a number on us; all you had to do was walk around the streets of Lindenhurst or Long Beach, or the walks of Breezy Point, after the Storm to see that. Even areas far from the Sound, the Ocean, or the Bays, were hurt: no power for two weeks is no fun. Gas lines and odd-even days weren’t even fun when Happy Days was on.
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