Podcast Transcript:
Paul Edelstein:
Hello, welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I’ll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts. Seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain.
Okay, Glenn Faegenburg and me here again this morning. So Glenn, come in this morning, get on the train, read my emails. I see that our Democratic Governor rejected the Grieving Family’s Act, which sent kind of shudders through my spine because that’s like, it was an old movie I saw once. It was like, you’re against widows and orphans because that’s what it sounded like to me. How could you veto this? So I was like aghast and I couldn’t wait to get in and rap with you about it. And then at the same time, I was so aghast and quite frankly pissed off, that after I read what she said as to why she rejected it, that I’m like, “Okay, I got to stop reading this.” Let me go to my salve, my bomb, that calms me when I’m on the trains every day, our favorite paper, the New York Post, which is obviously biased in a number of ways. But some of the ways they are super biased, I like. So I’m like, “I’m going to read The Post.”
And I was just curious. I said, “Wow, I wonder what The Post has to say about the Governor rejecting this law that nobody could possibly be against.” Let’s put it down. The Governor rejected a law that anyone that understood it would be like, how am I not for that, right? So I’m like, “What does The Post have to say about it?” And I couldn’t find it in The Post, just not reported in the Post. So I said, “Well, let me go the other way and go to that liberal left newspaper that I read also, when I’m not on the train and have time to actually think, The Times.” So I went to the New York Times, didn’t see it there. So I’m like, that’s weird, right? So then I go to the Daily News, that’s got to be everyone’s third option these days, right? And it’s not there either.
So then I get on my computer, and other than trial lawyers and the legal papers commenting on it, every single legal site, Law 360, ALM, obviously the [inaudible 00:02:55], they’re all commenting on it because it’s a big deal, but the newspapers aren’t. So I was like, I got to see what Glenn thinks about this. And I did. I came into office and I was completely incensed. It’s an outrage. It’s the most transparent political denial of something I’ve ever seen. I’m outraged. Any human being would be outraged. I can’t understand this. I don’t want to read it. So I of course go to my more intelligent partner and go, “You’re going to have to explain to me why we shouldn’t be picketing outside of Albany and people shouldn’t be calling for the removal of the Governor since we removed another Governor for some other stuff.” But now we got a Governor that’s against dead children and dead people that don’t earn a lot of money. That’s really what it is. So help me out.
Glenn Faegenburg:
Well, I think, actually I agree with you, we should be picketing. But let’s start with the first thing that popped into my mind was that you and I gave a lecture on wrongful death, and this was six or seven months ago. And at the time we were like, “Well why are we even doing this?” Because with the Grieving Families Act being proposed, we knew that they were going to change laws that were going to allow people to recover in a manner similar to the rest of the country and not just based on economics. So-
Paul Edelstein:
We were wrong.
Glenn Faegenburg:
We thought it was a fait accompli, but we did the lecture anyhow. And now it turns out that lecture is as valuable as it ever was because they haven’t changed the law. And this is just a perfect example of how the political processes destroys people’s rights sometimes.
And in this case, that’s definitely what I think happened. The political processes, was that this was something that was universally passed by the house and by the Senate. This was something that state talking about state, of course. And it was by a vast majority, Republicans, Democrats alike. Everybody was on board saying that we have an archaic wrongful death law. It only helps people that have income. So by its very nature is discriminatory against children, against seniors, against people of color. It’s so outrageous and so that the legislature and all the politicians saw that as saying, “Listen, this is something that really, really needs to be changed.” And now we have a Democratic Governor. This is just something that this is a no-brainer. Now what happens?
Paul Edelstein:
Wait, wait, wait.
Glenn Faegenburg:
It’s pretty obvious.
Paul Edelstein:
Wait, wait, wait. Before we get to what happened, because you have the nitty gritty detail, and I want you to explain it because you had to explain it to me because I was like, “Are you freaking kidding me?” And you’re like, “Let me tell you what happened.” Which is usually what happens. I come, I get all pissed off and excited about things and I go out of my mind and you’re like, “Take a deep breath. Let me explain it to you.” So you did. But before we get there, I just want to ask you a question. So you’re a lawyer and you are good at this, right?
So imagine this situation, I’m riding in a yellow taxi with a gazillion dollars worth of insurance. I guess it can’t be a yellow taxi. I’m driving in Donald Trump’s Uber, okay? And I’m riding with my wife who right now is, takes care of the house, doesn’t earn an income, but she certainly does more than me probably, but no income. I’m riding with my two young children, who are in school and I’m riding with my elderly mom who is retired and doesn’t make any money. And well, I could be in a yellow cab, let’s keep it in the yellow cab. Donald Trump himself or the equivalent of him, somebody unbelievably wealthy, uber wealthy, runs a red light drunk, kills us all, instantaneously kills all of us. We’re dead immediately, all five of us. And now my surviving brothers come to you in the office and go, listen, “We got to sue the shit out of Donald Trump. I am angry. We got to sue him for killing these people. And what kind of case do I have, Glenn?” Tell me.
Glenn Faegenburg:
Sadly, you are the only one with a case pretty much in that situation. Now, I will say the law is starting to get a little bit more the way the cases are being interpreted, not the law, but the way the cases are being interpreted, judges are having some pity on these short windows of pain and suffering before death and are giving some reasonable numbers. For the most part, the recoveries are very, very small. And the only one who would be entitled to recovery was you because you had the money.
And one of the examples that they use is the Limo case out in, these were young people, there wasn’t a lot of income and they died very, very quickly. And that’s the perfect example of the family should be entitled to have some sort of redress for that. And it’s so drastically unfair that they don’t, and they talked about the Tops shooting in the market up in the Bronx East were people of color that were all killed and many of them without substantial income.
Paul Edelstein:
And they’re not making a lot of money. This law, if the Governor had signed this law, and now I walked in your office the day after she signed it with the exact same case, me, my wife, my kids, my elderly mother, now what kind of case do we have?
Glenn Faegenburg:
I think that you all have, you probably still have a stronger economic claim, but now you all have a case.
Paul Edelstein:
Everybody has a case.
Glenn Faegenburg:
Everybody has a case. Theoretically, you should all basically be very, very similar.
Paul Edelstein:
So now you got to explain to me why I’m so angry, who could be against a law that makes that change and makes it equitable that everybody’s sitting in my car. I have some black and brown people in my car too, by the way, my family members that don’t earn a lot of money. Let’s make it not kids. I’ve got some guys that for whatever reason, don’t make a lot, okay, maybe it’s race, maybe it’s not, who cares? Their case is not much of a case with the law that’s in existence. So how could somebody be against changing this law? And apparently almost all the members of the House and Senate in New York, even the Republicans were in favor of passing it, except our Governor said no. How?
Glenn Faegenburg:
Well, you asked the question who? Okay. And that’s really the big question. Who? Insurance companies. That’s who. And that’s exactly who killed this bill. There’s not even a question.
Paul Edelstein:
Wait a minute. No. The Governor said, no, wait a minute. Wasn’t it the Governor?
Glenn Faegenburg:
No.
Paul Edelstein:
She wrote a big letter that said all these nice complicated things that I read and laughed.
Glenn Faegenburg:
Right. To all the people that I’m screwing to the people, the Tops family, the Limo family that I’ve met before. Sorry, but the interest of the insurance company has become more compelling to me than the interest of the people of this state. To me, that’s the message that it sends. And it’s a horrible message. But there’s no question if you read the op-ed, what she’s talking about is the reason why she doesn’t want to pass it is because it potentially is going to cost too much money to the healthcare industry and obviously there are insurance companies involved in that and potentially too much money to what she called stakeholders. Whatever that means. Okay. I presume that means people that may have to reach into their pocket.
Paul Edelstein:
So wait, so let me boil this down.
Glenn Faegenburg:
You make good on killing people.
Paul Edelstein:
So that means the Governor is saying, I’m against dead widows and orphans and children and people that don’t make money. And I am for stakeholders, right? That’s what that is. That’s really what it is. You don’t really need to know more. Now there is, there’s some more detail, but I understand that about the retroactive aspect of this law and who would be defined as a family member that could bring a lawsuit or not. And you know what Glenn, I know you know all those details. And you know what? I don’t really want to hear it. I don’t because it’s all bull. Okay?
Because it comes down to the core issue here of who was on one side and who was on the other. And on one side of the table was every single person in the state of New York, regardless of your color, your age, your employment status or whatever, would all be treated the same in the event that somebody kills you by their negligence and actually has enough insurance to pay for it. Because you and I both know how many people have come to our office with death and catastrophic injuries and we’ve had to say, “We’re not getting you any real money because there’s no insurance.” So these type of cases are only ones where somebody was killed by someone’s negligence and there was fault. And there’s a ton of insurance. There’s not a lot of those cases.
But on the other side, apparently somebody was influential to say, “This is going to really hurt us business-wise, this is going to cost us so much money.” So let’s make sure all these dead people don’t get compensated properly like they are in every single other state, right? I don’t think, I’m not sure, but I think we are the only state left with this ridiculous wrongful death statute.
Glenn Faegenburg:
I think it’s 48 out of 50.
Paul Edelstein:
So that’s why we need you for the accuracy.
Glenn Faegenburg:
That’s right.
Paul Edelstein:
[inaudible 00:11:51] ranting.
Glenn Faegenburg:
The whole thing is just ridiculous because what she did at the very end, so now by the way, this was passed in June. So from now, from June until November, nothing is happening. It’s just everyone’s talking about it. Is she signing? Oh, of course she’s signing it. Well, why is that sitting for so long if she’s signing it? And nothing’s happening, nothing’s happening to change the bill. She’s not saying, “I don’t like the bill the way it is.” And then all of a sudden she says, “You know what? I just want it to be the kids and no med mal. All right?” And take it or leave it. There is no room for negotiation knowing that that’s going to get rejected, knowing that the whole, she can then kill the bill, but at the same time say, “See, I was for the kids.” This is the type of politics that goes on that ends up taking rights away from the citizens of the state.
Paul Edelstein:
That’s so funny. That’s so funny that you say that because I explained this to my kid because this is now two days later. I had to simmer down yesterday. I’m still simmered up apparently, but I explained it to my kid over the dinner table because I was so outraged. So it was a discussion at our dinner table last night. And you know what my kid said, my 13 year old kid said when he was explaining this, which is totally understandable, he said, “That doesn’t make sense.” Right? Because to a 13 year old, the money equation, the influence equation doesn’t register, and it’s just the equity of the situation does.
Glenn Faegenburg:
By the way, I also just put, because I’m sure there are some people that are going to watch this to say, “Well no, I’m sure it will cost more money, blah, blah blah.” So the insurance lobby hired a tort reform think tank to show why this economically would be, and they have a long record of being biased and for tort reform. And often their data is flawed. NSTLA hired, which is the New York State Trial Lawyer Association, they hired an actuary, a certified guy to go through all the math to explain, “No, this is not something that drastically expensive.” We were just saying, these death cases, they are one offs, they don’t happen, thank God, they don’t happen that often that they’re going to drastically change the massive finances involved in court litigation. It’s ridiculous.
Paul Edelstein:
All you have to do to know, to understand that you don’t have to be an actuary, and do a study. All you have to know to understand what a ridiculous argument that is, because we’re at the ground level of this as a lawyer, for these cases to be cases that yield millions of dollars, you know what, when someone dies, three things have to happen. You have to have the death, obviously. And that happens, there are a lot of deaths obviously through accidents. But you have to have fault, has to be somebody’s fault. That’s not always the case when somebody dies, has to be fault. And then the party that’s at fault has to have significant insurance, which is rare.
You don’t see a lot of cars with 10 million in insurance and all this kind of stuff. It’s just, it has to have all of those circumstances. So this bill not getting passed is just going to punish, only punishes those innocent people that are killed through someone’s negligence, not their own. Okay? It’s a deep pocketed defendant. And the person that unfortunately was killed was in between jobs, I don’t know, was a student.
Glenn Faegenburg:
The person killed is usually one of the more oppressed people in our society, okay.
Paul Edelstein:
Because they’re the ones working.
Glenn Faegenburg:
Seniors, it’s going to be people of color, it’s going to be children, it’s going to be the people that are least in the position to protect themselves. They’re the ones that get screwed by this.
Paul Edelstein:
That’s right. Wow. So you know what Glenn? What could we as trial lawyers, and here’s what I want to like besides ranting and raving and trying to educate people, which we do all the time, but we reach the seven relatives that watch our podcasts get to see this, right? But I don’t even know what to do. For me as a lawyer, I want to sue somebody. I’m so mad about this. Can we sue somebody for this?
Glenn Faegenburg:
I think what you have to do is you don’t take your foot off of the gas. So I think that the powers that be, and that’s the North State Trial Lawyer Association, I think has led the charge with respect to this bill. They have to now stick with it and propose another bill. And presumably it would have to be a slightly different bill, probably more watered down than the one that’s currently out there and see if she would be on board because she said that she’s on board with signing something. Okay.
Paul Edelstein:
She’s on board, she’s on board.
Glenn Faegenburg:
On signing something. Okay.
Paul Edelstein:
She’s on board.
Glenn Faegenburg:
It has to be the most minimal thing, I think that at this point, or you wait for her potentially to be voted out, and I don’t know if that’s going to happen or not. So then this could be another 10 year wait before this is even back on the board.
Paul Edelstein:
Ridiculous. Because it’s not even an issue. So even in a reelection, nobody really cares about the tort reform issue. She’s not going to take heat for that. And you know that because it didn’t make any newspapers. It’s not an issue that, it’s an issue when we talk to regular people, they are like, “What?” How many conversations, by the way, have you and I had in, I guess we’re almost 30 years in practice, almost 29, or you’re probably 30, how many conversations have we had in all this time with people explaining the wrongful death statute? I mean, can that, and when we’re explaining that, we’re explaining it to some family members who’ve lost somebody right from negligence and we’re like, “Well listen, you’re not going to believe this one, but we have to prove that your relative.
Glenn Faegenburg:
Priorities, the thing that makes the front of every newspaper is how lawyers can’t get into the garden, right?
Paul Edelstein:
Okay.
Glenn Faegenburg:
10 people can’t get into the garden. Who really cares? At the end of the day, this is something that affects all of these people, all these citizens of New York State, something so important to the law and it gets no mention whatsoever. Zero.
Paul Edelstein:
That’s ridiculous. You know Glenn, I’ve had enough. I thought calling you up and talking to you about this on camera would make me feel better. I really did. And you know what? It’s not, you did a great job. You’re really smart. You’re really nice. You’re not really angry. I love that about you. But this sucks. I’m mad. There’s not a thing I could do about it except yell and scream. So that’s it for today, see what happens next week.
Glenn Faegenburg:
All right.
Paul Edelstein:
Later. Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glen, because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our [email protected]. Either way, we’re always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care.
You can find The Edelsteins Faegenburg & Brown Law firm on LinkedIn.