EP12: When Instagram Evidence and Honest Plaintiffs Make — or Break — a Case

Episode Notes

Transcript

Christine Byers :

Skims Body Inc. Will pay $200,000. Welcome to the Case Doctors in civil penalties and continue refunding New Jersey Shoppers with John Simon and Alvin Wolf.

John Simon:

So do you have any skims apparel?

Christine Byers :

The show where two of the greatest legal minds offer you advice on your cases.

John Simon:

You’d be part of that. You’re going to get a refund.

Christine Byers :

The case doctors will see you now. Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolf. Our case doctors, John and Alvin, have more than 80 years of experience as plaintiff’s attorneys combined. So there really isn’t a situation they haven’t already dealt with on a case and figured out how to handle it. Now they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and get their diagnosis. But first, as always, let’s turn to some of the civil cases, making headlines and hear what the case doctors have to say about them. So our first hot topic brings us over to California, Federal Court, and this has to do with Lyft. That’s of course a ride share company. And this has to do with their “priority pickup service.” And the plaintiff is alleging that the service, which you pay extra for, fails to deliver.

So Lyft tells passengers that they can get faster pickup for a premium price, but the plaintiff in this case says frequently fails to deliver on that process.

Alvin Wolff:

When you get on, you’ve got several options with Uber and Lyft. And you can say, “I’ll wait a little bit longer.” And they quote you the prices right there. I mean, it may be $22 to get picked up now or $20 to wait an extra 10 minutes. So okay, so let’s get out the violins for these four people. I just don’t get it.

Christine Byers :

Take a listen to these kind of numbers. So in the fourth quarter of 2024, Lyft’s drivers gave 24.7 million rides. And if each unique rider paid an extra $3 for this priority ride just once in that quarter, Lyft would’ve earned an extra $74.1 million in three months. That adds up to 296.4 million a year.

John Simon:

So here’s what I’m thinking while we’re talking about this. So the drivers have an incentive to get someplace fast, right? And what does that lead to? Or what could that lead to? Car crashes. Car crashes. Remember the, was it the Domino’s? Yeah, it was Domino’s case. CoLex case. Right. And that was when, was it 25 years ago, 30 years ago? And you got your pizza free or something? I think it was free. 30 minutes are free. 30 minutes are free. And of course, we know what that causes. You got drivers going over the speed limit and running through stop signs because they’re … And I think in that case, there was evidence of some number like that, millions of dollars of free pizza they had given away a year. But that causes other issues, trying to push drivers out on our streets to get somewhere quick so somebody can save $2 or earn an extra $2 or something.

I don’t know.

Alvin Wolff:

Well, it’s a problem across all delivery services. I mean, in Colorado, UPS has been dropping our packages off in the snow at the end of our driveway, probably to save time because they’ve got so many deliveries. They’ve got a certain amount of time from the time they clock in to the time they clock out. There’s regulations for the amount of time you can be on the road.

John Simon:

I had a FedEx case years ago, and it was a driver. It was around Christmas, a couple weeks before Christmas, and they loaded him up with 80 deliveries and he was getting paid by the delivery and he couldn’t go home until all the deliveries were made. And our accident happened at like 11 in the morning and he’d only given … He wasn’t 10% through the delivery schedule.

Christine Byers :

Interesting. All right. So our next hot topic brings us over to Delaware. And this is an interesting one. The US Supreme Court has ruled that a Delaware medical malpractice statute clashes with federal rules of procedure and is therefore unenforceable in federal court. And it says the state law unfairly asks for evidence early on in a case. The high court said rule eight of the federal rules require that a plaintiff at the outset of litigation need only provide a statement of the claim rather than evidence.

Alvin Wolff:

Short and simple is what they need to make.

John Simon:

Yeah. I mean, I agree with it 100%. It’s a pleading requirement, which is procedural law. And the procedural law applies in federal court even if it’s there because of diversity between the parties. So I wouldn’t expect there to be much disagreement about that, but if it’s substantive law like CAPS or something like that, who knows what they would do.

Alvin Wolff:

The plaintiff’s still going to have to get an expert. So I think the affidavit statute is kind of silly because I’m not filing cases without an expert anyway. Are you?

John Simon:

No.

Alvin Wolff:

Unless you

John Simon:

Have

Alvin Wolff:

A statute problem and then you just file it, get service and dismiss it. And I think there’s

John Simon:

Even an exception on the affidavit statute for that too, isn’t there? If you have a time coming up or … I don’t know. Well,

Alvin Wolff:

You get an extra 60 days or whatever it is. I mean, you can get more time, but it’s absolute- You take

John Simon:

Cases close to the statute.

Alvin Wolff:

Depends how good it is.

John Simon:

Yeah. I guess you’re right. I look at the statute. If it’s within three months, I start getting nervous about- I’m

Alvin Wolff:

Six. Yeah.

John Simon:

Six months. It’s a better rule.

Alvin Wolff:

I mean, you can’t even get the records anymore.

John Simon:

You got to identify the right parties. And if it’s a doctor involved and it is, who are they working for? Are they working for the hospital or not? It’s just you’re asking for trouble. If you take a med mal case or any case, I think within three months for sure of the statute potentially running, I’ve done it. Like you said, I’ve done it on cases, but it’s asking for trouble.

Alvin Wolff:

It’s worse to take the case after the statute’s run.

John Simon:

Or you could tell them, “Why don’t you go ahead and get it on file pro se and then come talk to me?

Alvin Wolff:

” We’ve done that before. I’ll say, I don’t want the liability or the responsibility. You get it filed and- I’ll

John Simon:

Take a look.

Alvin Wolff:

I’ll take a look after you do that work, but I don’t want to touch it.

John Simon:

No, I think that’s a good decision and I don’t think it’s that controversial. I mean, do you?

Alvin Wolff:

No, but you still have to get an expert.

John Simon:

Yeah.

Alvin Wolff:

Why not

John Simon:

Have the affidavit?

Alvin Wolff:

There’s much to do about nothing.

John Simon:

I’d like to see how that case turned out if you ended up getting a-

Alvin Wolff:

An expert? Well, this case came out this week, I think.

John Simon:

Yeah. Right. I

Alvin Wolff:

Mean, I saw it all over the listservs. I read the opinion and that’s how it gets to the Supreme Court because there’s different circuits that have different opinions.

John Simon:

Split of the circuits. I guess my next med mal case in federal court, I don’t need to get an affidavit.

Alvin Wolff:

Right. You don’t need an expert. Yeah. Until you go to the jury.

Christine Byers :

Right. All right, gentlemen. So our next hot topic brings us over to New Jersey, and this has to do with Kim Kardashian’s Skims line. Skims Body Inc. Will pay $200,000 in civil penalties and continue refunding New Jersey shoppers after improperly collecting sales tax on clothing that should have been tax exempt for nearly five years.

John Simon:

So do you have any skims apperal?

Alvin Wolff:

I don’t know what you’re talking about.

John Simon:

You’re going to get a refund. Another 13

Alvin Wolff:

Cents. The question I have is, were they remitting the tax to the sales tax department or were they keeping it?

Christine Byers :

They were not. They were keeping it.

Alvin Wolff:

Well, that’s tax fraud. They were stealing money.That’s tax fraud.

Christine Byers :

The $200,000 settlement characterized entirely as a civil penalty is due immediately and will be paid to the Division of Consumer Affairs.

John Simon:

But it sounds like they got off fairly easy on that. If they’re misleading the consumers and telling them it’s a tax and then not paying the tax, passing it on. It’s

Alvin Wolff:

Fraud. Yeah,

John Simon:

It’s fraud. There

Christine Byers :

You go.

John Simon:

Sounds like they had good counsel and they got off fairly easy on that one.

Christine Byers :

Thank you, gentlemen. Time now to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are going to focus just on the issue in each of them. So as they say, the case doctors will see you now. I represent a client in a slip and fall case at a national grocery chain. The adjuster just called and floated a pre-suit settlement offer, decent number, but we haven’t received any of the medical records yet. My client says her injuries were quote moderate, but I don’t know the full picture. The adjuster’s pushing to resolve it before she “hands it off to counsel.” Should I take the offer while it’s on the table?

John Simon:

No, no, and no, for a whole bunch of reasons. First of all, they’re so anxious. There’s a reason they’re very anxious to get it settled. That always raises my antenna like why are they … How can you settle a case when you don’t know what … You don’t know what the case is about yet. You don’t know if her injuries are permanent. If you go ahead and settle that case quickly and then six months later she’s having back surgery or knee surgery, you’re in trouble. I would say never rush to settle a case. There’s no reason. Even if a client’s not having regular treatment with a doctor but still having some type of symptoms, what I’ll do all the time is have them go to a doctor, just treating doctor, have them be examined and get a report. And then when that report is in hand, it might lower the value of the case, increase the value of the case, but at least you have some certainty.

It’s called due diligence. I mean, you need to do your due diligence and do your job to figure out what the case is worth. How can you settle a case before you know what it’s worth?

Alvin Wolff:

I have a different spin on your answer. And that is what I’m doing is if my clients are in the major hospital systems, we’re getting into their whatever they call it, the MyCase or MyChart chart. MyChart. Right. And I’m going through their MyChart and I’m seeing all this stuff. They have an MRI that’s normal. If there’s nothing there and they say they’re feeling okay, I’m letting them make their own-

John Simon:

Yeah, that’s a different issue. But I think with like right away and they’re still … If it’s been six months and they haven’t gone to a doctor and they’re feeling fine, then it’s a different issue. My comments were really, it happens and a week later you want to settle the case. To me, you got to wait enough. You need to wait long enough to know that the person’s to have a good grasp on what their injuries are, period.

Alvin Wolff:

You got to let time pass for the injury to evolve and see where it goes.

John Simon:

Interesting. Okay. Let enough time pass so that you are fairly comfortable with what the injury is.

Christine Byers :

Gotcha.

John Simon:

But the other thing that’s really interesting is people ask me what a case is worth. How many times have you gotten that question? What is the case worth? Thousands of times? Every day. Every day. Thousands of times. Attorneys in the office do it. I was asked that yesterday. And my first question is, they tell me what the damages are, but I ask, what did the defendant do? Who was the defendant? What did they do? Because I believe that that’s as much, if not more, relevant to the value of the case. It’s who the defendant is and what their conduct is. That drives the value.

Alvin Wolff:

What did they do wrong?

John Simon:

What did they do wrong? Right. Is it something that is a one-off, honest oversight or mistake and it’s some 30 year nurse or is it a $600 billion company that had five other incidents with the same product or something?

Christine Byers :

Great. Good to know. All right, gentlemen, our next case that comes to us from a viewer who says, “Another lawyer referred me a premises case this past year. He told the client I would be handling it and I’ve done all the work since then.” We never signed a written referral agreement, just a verbal understanding that he’d get a third of the fee. Now the case is settling and he’s demanding a bigger cut. Says the client wants him back, involved, and accuses me of shutting him out. What is enforceable here? Is a handshake deal enough? And how do I avoid this turning into a bar complaint or a fee dispute?

Alvin Wolff:

Wow. It’s unethical.

John Simon:

Yeah.

Alvin Wolff:

You got to have it in writing. And the client has to consent to it.

John Simon:

Yes.

Alvin Wolff:

No question.

John Simon:

So the question is, whose client is it?

Alvin Wolff:

It depends who’s got the contract.

John Simon:

Right.

Alvin Wolff:

His name’s on the contract. Whose

John Simon:

Name’s on the contract? If the attorney who it was referred to did not get a contract with the client, and it’s not in writing that they’re working together with the client’s consent, I don’t think he has a right for any of it.

Alvin Wolff:

Maybe quantum meruit, but I’ve never seen it go that far. We always have joint agreements and the client signs off on it.

John Simon:

It’s got to be in writing and the client’s got to … I think, does the client have to sign off or just be provided a copy of it?

Alvin Wolff:

They should sign it. I’ve got a clause in my contract that they’ll just initial the percentages and it says, and the client consents to the division of the fees.

John Simon:

Yeah, that’s unfortunate. And it happens when you don’t put things in writing. And honestly, I have attorneys I’ve been dealing with forever that I don’t … We do it for the client now, but in years past. When did the rule change where you had to put it in writing? Is that right?

Alvin Wolff:

When the statute ran, that’s when you-

John Simon:

Well, I guess there’s two things. We’re talking here about what should have happened, right? So it didn’t happen. So what should he do or she do?

Alvin Wolff:

Probably beg. The lawyers got no perspective. I mean, you try to change a deal after you make the deal. No one’s going to want to work with you again.

John Simon:

Well, it’s not a good look for the person referring the case either. If somebody refers you the case and agrees, even if it’s not in writing, do you really want to deal with that person in the future? Right. Yeah. It’s not a good visual.

Alvin Wolff:

But I’m thinking about in the old days before it was legal to split fees. They never had it in writing. I mean, my dad practiced for 58 years. He’d get a case referred to them or he’d send it out. They’d just have a handshake and they’d do it.

Christine Byers :

So handshake deals used to be the way it

Alvin Wolff:

Was.

Christine Byers :

It

Alvin Wolff:

Was illegal to do it, so they did it anyway. Oh.

John Simon:

When did the fee sharing become-

Alvin Wolff:

I think when the bar realized that everybody was doing it anyway, so they may as well just make it legit.

John Simon:

So in your career, has it always been legit or was there a point where you couldn’t

Alvin Wolff:

Share face? I don’t know.

John Simon:

Yeah.

Alvin Wolff:

What

Christine Byers :

Was the point of- That’s too far

Alvin Wolff:

… That’s in the last century. Yeah.

John Simon:

I tell everybody, I practice law in the 1900s, so whatever.

Christine Byers :

Why was it so taboo? Why was it illegal to split things? Well, you couldn’t

John Simon:

Advertise either.

Alvin Wolff:

You couldn’t even have your name on a pen because that was advertising.

John Simon:

Why? My have things changed.

Alvin Wolff:

Because law was a profession and now it’s a business.

John Simon:

When I graduated from law school way back a long time ago, 1986, two lawyers came into our class, the graduating class at the law school to talk to us and help, I guess, prepare us for the real world. And the first … I don’t remember their names. The first lawyer came in and his whole talk was about the practice of law is not a business. It’s not a business. It’s a profession. You are a professional. And he just drilled that in and everybody was delighted and listening. The next guy came in and said, “The practice of law is a business. You got to understand it’s a business. And if you don’t understand it’s a business, you ain’t going to be practicing law.” And I thought, “This is perfect.”

Christine Byers :

All right. Our next case comes to us and it says, “The defense found my client’s workout videos. Now what? “

Alvin Wolff:

With or without clothes on.

Christine Byers :

Dear case doctors, I’ve got a soft tissue auto case with ongoing treatment, but the defense just produced Instagram videos of my client lifting heavy weights and doing box jumps. They’re arguing she’s faking her injuries and threatening sanctions if we don’t dismiss the claim. I didn’t know about the posts and the client insists she’s quote, just trying to stay active for mental health. She’s now panicking and wants to keep going with the case. She says she wasn’t dishonest, just optimistic. Can this be salvaged? Should I withdraw? Or is there a way to get ahead

John Simon:

Of this? No, just disclose it, put it out there, and be honest and truthful about it. I mean, even if she said something that sounded inconsistent earlier, you live with it and it is what it is, man. It is what it is.

Alvin Wolff:

Well, you can have a good day and you can have a bad day. I mean, I just had my hip replaced three months ago and I can hardly walk today and last week I want a squash tournament. So are you saying I’m faking because my leg hurts now?

John Simon:

Yeah. I had a client who was a professional wrestler and it was something buddy something or other Buddy Power, a King of Harch or something. And this is back when we had cable TV. Cable TV was the new thing.

And he had a horrific injury. He was drinking and said he ran off the road by another vehicle and he was coming back from the east side. And anyway, he blows his knee out and this guy was an incredible athlete, a young guy. And the doctor who fixed his knee said there was nothing holding the knee together other than like skin tissue. It was a real complicated surgery. He went through all this rehab and he gave a deposition and said everything that seemed very … I mean, it was true. The doctor said he’s not going to be able to do anything with his knee. And during the pendency of the case, I’m at home flipping through late night cable TV and all of a sudden I see somebody that looks like my client in a ring and he’s on the top turnbuckle for those wrestling fans and he’s flying through the air jumping on this guy.

And I thought that’s got to be before his injury. And I look closer and he’s got a big knee brace on. And so that was a problem. I’m like- That is a problem. But it wasn’t because he didn’t lie about it. I turned it over and he gave a deposition and said, “I have to use my body more. My knee is killing me. ” He’s just one of these guys that tolerates pain and does things that the doctor told him not to do it and he’s doing it anyway. So did it lower the value of the case? I don’t know. I think people liked him more For having done that.

Alvin Wolff:

Did you see the exhibit we did last week about what the client can still do, but with difficulty?

John Simon:

Yes.

Alvin Wolff:

I mean, that’s like every movement.

John Simon:

Right. It’s the kind of thing where I always tell my clients, no means no. In a deposition, when the defense gets a piece of paper out and said, “List all the things you can’t do anymore.” Well, guess what? They’ve got surveillance or something. I had a guy in a wheelchair and I said, “You can walk.” And he said, “No, I can’t.” And he could walk a little bit, but he needed a wheelchair. And the guy says, I said, “If we had a fire in the building and you didn’t have a wheelchair, would you burn up in the fire or would you find your way to the elevator?” And he said, “I could probably make it to the elevator.”

Alvin Wolff:

Right. There’s very few things you can’t do. Can’t do. You can do everything, but it can be very difficult and you can make a choice of how you’re going to feel the next day if you do it.

John Simon:

Yeah. So I think it’s not as big of a problem as you might think. Just be honest about it. Here’s the other thing too, if you go into court and you’re a victim and complaining about your injuries, everybody on that jury is going to know somebody who’s worse off than your client is and is doing more, living life and dealing with it. And I think people that aren’t victims that say, “I can do it the opposite. I could do anything I put my mind to. It just takes me a little more time and effort and I pay for it. ” The jury’s going to like them more. Your case is more valuable.

Christine Byers :

Interesting.

Alvin Wolff:

Right. I can’t do anything doesn’t fly.

John Simon:

No, it does not. It does not.

Alvin Wolff:

And I always tell my client, you better not be sitting around like a potted plant because you may as well just forget about it and lose your case right now.

Christine Byers :

Okay gentlemen, that will do it for this episode of the Case Doctors. If you have a case that you would like the Case Doctors to dissect, send us an email at [email protected]. Thanks for joining us and we’ll see you next time on The Case Doctors.