Mason Pelt

Frivolous Defense — Joshua N. Stein (Se.1 Ep.1)

The following is a podcast pilot episode of a podcast from April 2021. The Seventh Amendment of the U.S. Constitution grants American’s the right to a jury trial in civil lawsuits. So it’s no surprise that most people can name at least one patently ridiculous lawsuit, whether brought by a pro se litigant or Rudy Giuliani. But for all the…

The following is a podcast pilot episode of a podcast from April 2021.

The Seventh Amendment of the U.S. Constitution grants American’s the right to a jury trial in civil lawsuits. So it’s no surprise that most people can name at least one patently ridiculous lawsuit, whether brought by a pro se litigant or Rudy Giuliani. But for all the press that frivolous lawsuits tend to receive, the data suggest lawsuits in the U.S. are mostly reasonable, with about 64% being either contract disputes or small claims.

The highly-publicized tort lawsuits involving claims of non-criminal and non-contractual civil wrongs make up only a minority, about 7% of lawsuits in the U.S. Still, lawsuits are public, and some tort lawsuits seem just plain crazy. And even people who don’t know what tort reform means have likely heard of the need for changes to civil law that would reduce damage awards from frivolous claims filed in a lawsuit-happy society.

Frivolous lawsuits, although culturally pervasive in the form of easy headlines and punchlines, do not shape the U.S. legal system with anything near the impact of the invisible actions taken to defend and prevent even meritorious lawsuits.  This is a discussion into how frivolous, or felonious defenses against lawsuits impact the U.S. legal system.

OnThatLaw · Frivolous Defense — Joshua N. Stein — OnThatLaw (Se.1 Ep.1)

Ed. note: This audio recording is lightly edited. Editing includes noise removal, dynamic effects, such as limiters, equalizers, and gates. The substance of the audio has remained essentially unchanged from the original recording. However, some audio may have been trimmed or removed to reduce crackling, popping, buzzing, or distortion. The continuity may be presented in an order different from the original recording, as noted by short clips of music. Some sections of the original recording, including production notes, and discussions falling outside of the scope of this program, were removed entirely from this final production.

About Joshua N. Stein

Joshua N. Stein is a Partner and a founding member of Greenberg & Stein, P.C and sits on the board of directors for the New York State Trial Lawyers Association. Stein has experience representing injured people in automobile accident cases, work-related accident cases, police brutality cases, nursing home abuse, and cases against municipalities.

Working Pro Bono through the NYSTLA Trial Lawyers Care program Stein obtained a $1.7 million award for a family of a 9/11 victim before the September 11th Victim’s Compensation Fund.

Follow Greenberg & Stein on Twitter

Show Notes, and Links

Credits

Host & ProductionMason Pelt
GuestJoshua N. Stein
MusicKevin MacLeod
Header ImageGaudencio Garcinuño

Transcription

Ed. note: This transcription was automatically generated using Sonix, processed further using semi-automated spelling and grammar checkers such as Grammarly. Further minor edits were made for brevity and clarity. For these reasons paragraph breaks, and punctuation may be nonsensical in places, and this transcription may not exactly match the audio recording.

Mason Pelt: Hi, everyone, and thank you for tuning in to the podcast. This is the show where I, Mason Pelt, a nonlawyer, interview lawyers to talk about areas of law that I think are interesting to the general public and in the general public’s interest to think about.

I’m joined by Joshua Stein of Greenberg & Stein. They’re a personal injury firm; they’ve had some really interesting cases that are not at all like the sort of stereotype that you might see on The Simpsons of personal injury attorneys. Some included police assault of a resident where there was a fractured eye socket. And cases involving people that were victims of the September 11th attacks in 2001. As if I have to specify which September 11th. 

We’re going to be talking about over-aggressive defense of meritorious lawsuits, which is, I think, a fascinating topic because it sort of governs and regulates how everyone is impacted by laws. But we don’t see them because it’s under the iceberg. There’s no court documents. 

So without further ado, Joshua, thank you for joining and welcome to the show.

Joshua Stein: Thank you for having me. I’m glad to be here.

Mason Pelt: I’m very glad you could be here. To quickly go over, we started talking because I’d said something on Twitter about how I never judge criminal defense attorneys for who they defend because everyone is entitled to a vigorous defense. And the example that I believe I cited was Clarence Darrow defending Leopold and Loeb. Which was a fairly egregious murder, and he just skipped to sentencing. His argument was just that the death penalty was wrong. And I believe that that is completely fine, and right, and good, as people are entitled to a vigorous defense in criminal matters.

I said I judge both frivolous lawsuits and prosecutors. And you brought up what about the aggressive defense of… essentially aggressive defense, which is frivolous or felonious? Umm… I thought about it. And the more I thought about it, Josh, I realized you were 100% right. 

So maybe you can say a little bit about what you mean and elaborate on the point for those who are also not lawyers who are listening.

Joshua Stein: Sure. Just as some plaintiffs’ attorneys or prosecutors bring claims that shouldn’t be brought. There are defense attorneys, I’m not speaking really in the realm of criminal law because everybody’s entitled to a vigorous defense, no matter what in criminal law. While I guess there are times when defense attorneys act in bad faith or frivolously in criminal law cases too. Clarence Darrow’s take on that was such a long time ago. And I think that sensational cases like that are so different today that, you know…

Cases get tried in the press so often. In criminal cases, at least, that you need a strong voice on the defendant’s side in those kinds of criminal cases, even if it might be a little bit frivolous outside of the courtroom. Inside the courtroom, obviously, the judge determines what you can do. And so… there’s not that much that you can do frivolously from a defense point of view, once you get into the courtroom, outside the courtroom, that’s a different story. I mean, you’ll hear a lot of puff and blow from defense attorneys at times, but when they get into the courtroom…

Mason Pelt: There’s not a lot you can do when the judge is sitting there stopping you.

Joshua Stein: Right. And you don’t bring evidence. All you do is cross… You know, for the most part, you just cross-examine. And if you’re going to blame the victim or something like that. Maybe that’s where you get into the frivolity of the criminal defense cases, possibly in cases like, you know, Harvey Weinstein, things like that. But I digress.

Mason Pelt: Well, to move to the civil realm as quickly as possible. I feel like there’s a resource imbalance in criminal defense, which is to say the defense attorney, however competent, is against the resource of a state actor, almost always greater than your personal resources.

Joshua Stein: Absolutely.

Mason Pelt: When you get into the civil side, which is what I really want to talk about… If we did work for Coca-Cola, I know that Coca-Cola can completely body my ad agency. Even if it is a simple failure to pay lawsuit that they are obviously in the wrong. They can crush me legally by defending something very aggressively, to the point that I would say it’s not worth it emotionally or logistically. I would have a hard time getting a lawyer to go after what would ultimately probably not be statutory damages, just actual damages. 

I want to get into that a little bit. And also, you had mentioned how sometimes arbitration and non-disclosure agreements get used manipulatively. And I have some… well, a lot of questions regarding that. So… 

Joshua Stein: So, with respect to civil cases and civil defense, you have a similar disparity when it comes to resources. 99 times out of 100, I’m dealing with either a municipal entity that has the money of the municipal authority behind it, and the investigative power, and everything else. Or I’m dealing with an insurance company that has their billion-dollar resources most of the time. Or some self-insured entity, again, like Coca-Cola or Federal Express, something of that nature that also has unlimited resources to defend lawsuits.  

A lot of times you’ll see that they [these entities] do play a waiting game. There’s any number of examples that I can give you of these defendants using what you would think are dirty tricks to suck the outcome of litigation not related to its fault or lack of fault.

For example, there was an insurance company in New York that used to plant private investigators at the courthouse. And when an undocumented immigrant would show up, the court would, this is before ICE, but they would report them to Immigration, and Immigration would sometimes take them out of the courthouse. That, again, is no… In New York and in the United States, you don’t have to be a citizen to abide by the laws of the state or the nation, And you’re also protected by them [those laws].

So there’s no barrier to somebody who’s not here legally or not eligible to work or something like that suing. But that would be one of those types of dirty tricks. And then they also would wait out older people and hope of death and things like that. 

But they also hide evidence. I mean, there’s, look at the tobacco litigation, and you’ll see they knew what they were doing, and they weighed the consequences versus the cost. They decided that the consequences of being sued at some point later down the line wasn’t worth the loss of revenue; either advertising cigarettes might be dangerous, or even just advertising that they’re not healthy in the 50s and 60s.

Mason Pelt: Yeah, you were Pointing that out when we were talking about Liebeck versus McDonald’s, the coffee lady. She was ultimately awarded around maybe a little less than one day of McDonald’s coffee sales.

Joshua Stein: I think profits. Not even sales. Profits.

Mason Pelt: Oh, really? Profits. Okay, so, yeah, she got nothing relative to McDonald’s. And she was severely hurt. She was in the hospital for several days. She had three skin grafts, and it was a three-year time for recovery.

I know you’ve… I’ve looked at some of the cases you’ve had; Like you had someone versus the New York Metro?

Joshua Stein: Metropolitan Transportation Authority, the MTA, which is the umbrella entity for things like the New York City Transit Authority, the Long Island Railroad, some of the bridges and tunnels, Metro-North Railroad. They have their own police force, which is sort of a division of the state police in a way, but not really, meaning that their jurisdiction goes throughout municipalities in the state, although it’s not a state agency, so to speak. It’s a separate agency.

Mason Pelt: So you really aren’t… Like there’s a lot to fight that out. And my assumption is that, in the same way, as a criminal defense attorney. There’s so much of state resources kind of piled up against you once you get into this entity that has a police department.

Joshua Stein: The MTA has its own police force. Yeah.

Mason Pelt: Yeah. And once… Once you get into that, you’re… you’re Not fighting an even civil battle, in my opinion.

Joshua Stein: No! And that case was in the days right after 9/11. Before body cams or even ubiquitous street cameras. So getting an accurate idea of what happened was difficult because, you know, you have your client’s story, and then you had what the police are saying in their police reports. 

Ultimately, we were able to show that they were… That case ended up settling, but we were able to show that they had hidden evidence, made up evidence of an assault on the police officer as justification for his assaulting my client. And even other little things to try to make that assault seem like it was actually… That it had actually occurred when it hadn’t.

Mason Pelt: This sounds so unlike NYPD to me; I’m joking.

Joshua Stein: Well, they’re not NYPD. I mean, you know, those are separate entities. And so they’re…

Mason Pelt: Okay. Right. But it just sounds so unlike the police to do that.

Joshua Stein: Things don’t change.

Mason Pelt: I joke. If my stance on police reform has not been obvious from all of the things I’ve historically said, I… um… There are some real issues.

Joshua Stein: Yeah. And… I… I’ve represented police officers, and I’ve represented people against the police. Just like any other system, there are flawed actors. And the problem is, in some places, those flawed actors have too big an influence over the system, and that’s what goes on with police departments for the most part.

You know, there’s a mob mentality, and if you’re not part of it, you’re against it, and you get… You get run out. And so, a lot of times, you turn the other cheek for your own personal survival when you definitely don’t approve of what’s going on. And then you end up being in the wrong place at the wrong time. And, you don’t know where you stand. That’s… That’s…. I think the biggest problem is that the police have lost focus of their purpose.

Mason Pelt: I would agree with that. And I also have to say; my statement is not a condemnation of all police officers as guilty in all scenarios.

Joshua Stein: No, no.

Mason Pelt: It’s just when someone says, “oh, yeah, an assault happened,” and so the police said that “they hit me first.” that is, virtually going to happen 100% of the time. And we can assume at least, let’s say, 10% of the time, that’s not true.

Joshua Stein: And in this case, we had a Guyanese national. So he, you know, was of Indian descent, meaning of far eastern Indian descent. So he looked Arab. And he had made a left turn where a police officer was giving a direction that he didn’t really understand. And then the police officer started chasing him in one of those little scooters. 

He [police officer] must have called in an MTA police officer as an SUV started chasing him [legal client]. If you ever saw an MTA car back then, it looked like…. a security company car. It wasn’t really; it said MTA police on it, but, you know, it wasn’t a New York PD emblem. And if you’re not that familiar with what those look like… he [legal client] didn’t know who was chasing him. 

At some point, he [legal client] parked his car, got out, and started to run. Then the police officer jumped out, chased him, caught him, tackled and punched him in the face. And then went and took pictures of his knuckles.

Mason Pelt: And said, “he assaulted my knuckles with his face.”?

Joshua Stein: I mean, that’s kind of what it was. You know, he [MTA police officer] went back to the precinct. He [MTA police officer] had handed him [legal client] over to the police department, the NYPD. And, at some point, made up a story about some handcuffs that you had that were a family heirloom that he had left on him [legal client] and had to go back to the precinct to get them. And that’s where he realized he had been assaulted. So they took pictures there. You know, like two hours, after my client had reported the assault and suffered a fractured orbit with plates and screws put in his face.

Mason Pelt: Oh my god! Yeah, that’s a lot of an injury. You said that the case was settled, so I won’t ask you too many questions about that. But in general, most things settle, which is why I said we don’t end up knowing about all of the bottom of the iceberg. 

This was so aggressively defended that the settlements were essentially… well, people were forced into settling. And they [the settlements] might have terms; they might have a non-disclosure agreement that even says they can never talk about what the terms of their settlement were. And I just want to get into that. 

And then as the side point, how can we, as a people, you know, as an individual, try to resist that. Try to make sure things are fair and equitable, and in some cases, maybe public just because that way people know about it?

Joshua Stein: Right. 

I mean, the adage that sunlight is the best disinfectant is where both compulsory arbitration and non-disclosure agreements run afoul of the constitutional civil justice system, at least in my view. Non-disclosure agreements in contract with respect to almost anything except for possibly intellectual property, I think are bad just for A, for the free market, and B, especially when they have to do with a settlement after a dispute. 

Because our system of justice is based on what has gone on before. Prior cases being decided is what dictates what your case is worth or what your contract is worth. And when you have to sign a non-disclosure agreement, it puts the powerful at even a greater advantage. Because, you know, if you’re signing a contract for a certain amount of money, and they want to be able to negotiate every contract separately without reference to what similar people in similar situations have gotten in the past. Then they look for non-disclosure agreements when they feel they’ve paid you more than they want to pay other people. And that’s… That puts them at an unfair advantage.

Music Transition:

Mason Pelt: So I have a mixed opinion on arbitration. For the ad agency, for Push ROI, we have a version of our contract that does have binding arbitration in it. And my actual reason for using that is, court is a lot to deal with, as a normal person.

I realize you’re a litigator. You deal with it every day. But I go mildly insane having to deal with having even a lawsuit pending. And being able to say we go to mediation or binding arbitration, I believe our contracts as binding arbitration through JAMS. We use that as a way of getting out of all of the other crap, It’s efficient. 

But on the other side, the reason I don’t use that contract mostly is the most likely scenario for us going to court would be failure to pay. I look up companies before I have worked with them and find out if they’ve been sued for failure to pay in the past. And if they have, it’s a big, big ol’ red flag. And I sort of like for there to be, not necessarily in a punitive way, but a public record that says in the past people have gone all the way to court with the fact that you don’t pay on time or don’t pay at all. Maybe tell me, do you think arbitration has a place ever? And if so, where and how would that best be used for an individual?

Joshua Stein: Well, it certainly has a place. There’s a difference between optional arbitration and compulsory arbitration. When I say compulsory arbitration, I’m usually talking about what are called contracts of adherence. Like you and your cell phone company, or you and your auto lease, or you and your… you know, almost any consumer goods, even Uber and Lyft. 

What you are talking about is arm’s length negotiations between two businesspeople; and presumably, sometimes their lawyers; If the contracts are big enough, I would think. 

So you know, if either side objects to something, objections can be put in or taken out as you are negotiating individual clauses in the contract. So I think it absolutely has a place then. And you could even write into your contracts that all disputes but payment disputes will be arbitrated before JAMS, carving out the part that you want to keep separate. There’s nothing wrong with that. 

My problem with arbitration is when you have no negotiating power. When somebody offers you a good or a service, and you sign on to an app like Amazon and, Amazon loses… Say you bought something for $10,000 on [Amazon] for some reason. And they don’t want to give you your money back, and then you’re forced to arbitrate it. 

When you’re forced to arbitrate, it’s secretive — number one. 

Number two, you’re generally up against somebody who has Amazon… meaning the judge, the arbitrator; They all try to be fair. But it’s just human nature to kind of side with the people that pay you all the time for your arbitration. 

So it’s not the same as being in court with a jury of your peers or a bench that is, you know, at least answering to somebody in the public sphere. And where you can appeal without the burden of having to appeal to a master arbitrator. And to get a Master Arbitrators Award overturned, the burden of proof is, you know, clear and convincing evidence of disregard of all the facts in law or something to that effect. Different states have different rules, but, basically, it’s blatant disregard for facts or law in the case, which is a much harder standard than just goes against [that law]. 

And then you can’t find other cases to determine whether it [the ruling] goes against that law because now you’re talking about an arbitration. So it’s a much more closed, secretive way of getting justice than a lawsuit. And just like you. Most of these big companies don’t want to face lawsuits. It’s not the little payment lawsuits they don’t want to face, they don’t want to face class action lawsuits.

Mason Pelt: Yeah, I remember when it was Robin Hood, the stock trading app. They had basically stopped people from trading GameStop stock. And it looks, if maybe a little bit sketchy and a little bit suspect, like they [Robin Hood] didn’t really have a number of good options. But a bunch of people filed lawsuits, and I believe are now finding out that they all agreed to arbitration. 

And these lawsuits are being essentially dismissed on standing, which I generally don’t have a problem with… back when I was watching, people getting mad at election lawsuits because they were dismissed on standing; I was disappointed that they weren’t being dismissed on their actual merits. But that’s neither here nor….

Joshua Stein: Those are two different types of standing.

Mason Pelt: They… They are very different.

Joshua Stein: When people were claiming that the election laws weren’t on the merits because of standing, that’s… That’s actually not true. The standing issue was a preliminary issue to the merits.

In other words, you are not somebody harmed by this; your claim. And in voting rights cases, you only have a claim if you have a voting right violated. So in the end, you can’t make a claim on somebody else’s behalf in a voting rights case. 

[With Robin Hood] it is saying you don’t have standing to come to this particular court, you may have standing somewhere else. You know, so part of the merits of those claims were, you know, you weren’t harmed. There’s no harm here. So that was the standing argument in a voting rights case. 

Whereas in the arbitration case, they’re just saying, well, you chose to arbitrate by signing on with Robin Hood, so you don’t have standing in this court. You need to go to another court. It’s almost a Jurisdictional standing issue versus a kind of substantial or substantive issue.

Mason Pelt: That is a very good clarification. I thank you because, yeah, I had… There’s a tendency for terms to get jumbled when they mean multiple things. And I think I even just did that now. 

It’s very odd to see, especially a giant company that says, you know, you cannot sue us, and this cannot be sorted out publicly. I’m all but certain Robin Hood will end up paying out some, probably nuisance level settlements. It’s very weird to me that you can have a company that essentially… We don’t really get to find out if they broke the law — and they may not have [broken the law] to be clear — but it’s odd to me that you could have so many people say, “did you… did you break the law?” And it will go to a binding, non-public arbitration for a bunch of cases rather than a big class action.

Joshua Stein: Basically, what they’re fighting over. Whether they should get dismissed or not is if FAA, the Federal Arbitration Act, applies to that claim or should apply, which means that arbitration is binding whenever you sign a contract for arbitration.

There was a Supreme Court case last year, two years ago… A couple of years ago, that basically found that the FAA applies to these claims, and therefore, they should be kicked out of court and taken to arbitration. But if you go back and you read the FAA, it was designed for the type of arbitration that we had discussed earlier that you use, which is business-to-business arbitration. Really a mercantile way of dealing with the shipping problems. 

You know, in the early 20th century, things had to go cross country by train or by steamship across the ocean. And who was responsible and when was clogging up the courts. And so the… the FAA was drafted in order to clean the courts out for those particular claims. But like all good, well-intended pieces of legislature legislation, they bastardized it later on to now make it any kind of commercial arbitration claim. Back in the early 20th century, we were talking about people who basically had the same amount of power, you know, the buyer and the seller of a good or the transporter of that good. They’re equally at the table sort of with the same amount of money generally, you know, individuals notwithstanding. 

Here you’re talking about people that are inventing, investing a couple of thousand dollars and adding up, Robin Hood having billions of dollars and then taking a cut of that. So they have millions of dollars. And now they want the individuals to hire lawyers for what could be a couple of thousands of dollars each, at most of what lawyers are going to take that case or if they have to pay a lawyer hourly, it becomes financially not worthwhile. While across the table from every individual plaintiff or claimant is going to be the same defense attorney in the same arbitrator’s room, but a different plaintiff or claimant with a different claimant’s attorney. So who’s going to get the better treatment?

Mason Pelt: Yeah, there’s something else. And I can’t tell if you’ve actually dealt with these before, but it’s one area I consider manipulative law. There are times where there are say a sexual harassment case is brought that is so clearly meritorious that everyone should want to settle. But the problem is when those get settled; oftentimes you end up with the… well almost all of the nasty things you’ve mentioned. The NDA that prevents you from talking about it, or acknowledging that there even was a problem, you know, all… of the… it goes to arbitration, and If you violate your NDA that goes to arbitration… kind of stuff.

Joshua Stein: Right? Well, I mean, you can see how, with respect to Donald Trump, just not to politicize it. But it’s really more his way of doing business than you can see how they [NDAs and Arbitration] affect the ability to hold somebody accountable. 

With years fighting over whether or not it [an NDA] was violated in the first place, not what the merits of the claim are. You know, with Marry Trump or with Stormy Daniels, like either way, you’re talking about trying to keep people silent about your bad deeds. Which in and of itself is a harm to society as a whole. People should know who you are, even if you’re a private person. 

That’s our justice system in the sense that money is the only recourse. I mean, obviously, those can be… you can break an NDA to testify in a criminal case. There’s no privilege there. So if it goes that far, the NDA has no effect. But most cases don’t go that far.

Mason Pelt: In part because let’s say there’s, I don’t know, 10 women all impacted by the same thing. But each one believes themselves to be a single isolated incident. It’s getting the prosecutor interested to say this has been a predatory pattern of behavior, requires sunlight. It requires information to public. 

I don’t know… I try to balance the mix of what I would call efficiency. And, you know, things should be handled… And I would love to live in a world where stuff just got settled more quickly, but…

We live in a world where, you know, we can have a very obvious case, take three years. Even on the business to business side. A friend of mine had a case where a vendor breached their contract and in a fairly obvious way. Quite literally, they were supposed to set up web servers in a specific configuration. it was in the contract. They did not do that. And he has been three years in court trying to get this sorted. And it has included every insane thing I’ve ever heard of down to being accused of filing. This is a SLAP lawsuit because it violated the guy’s right to free speech because he was dictating what servers would be used to express his comments. I mean, utterly insane…

Joshua Stein: That’s a creative argument. 

We live in an interesting world; Lawyers. In that we are a service provider, so we have to keep the customer happy. Like any other provider of a service. You know, if you don’t do what the client wants, you’re not going to get a lot of clients. But clients in law do a lot of things out of spite. So you have to balance what the client wants with what’s ethical and with what’s in the bounds of fair play.

But you also have to do to some extent with what’s in your own morality. And there are plenty of people who come to me who I maybe could squeeze a couple of dollars out of somebody, but I wouldn’t feel too good sleeping at night doing it. And I wouldn’t take the case. You know?

Maybe when I was younger, I was different; I don’t know. I’ve been in practice for 27 years, so maybe I’m just not remembering it clearly. I don’t know. I mean, I can’t say for sure. But all I can say is that having grown up and knowing now, it’s just not worth it. It’s not worth it. They hit your reputation. It’s not worth the time. it’s not worth… Crooked clients only try to get you to be crooked more often, once you start showing that you’ll do it. 

You don’t want to be halfway into it and say, “all right, I can’t take this anymore.” You want to be able to spot it from the beginning, those kinds of difficult clients that are going to end… 

On the other hand, there are some lawyers who will pull out all the stops. And, unlike other businesses, we are governed by a canon of ethics. And in New York State, the appellate divisions so that, you know, people that feel aggrieved can go make those claims to the proper authorities if they feel that the lawyers overstepped. You have to watch yourself because you never want to be on the other end of one of those complaints. Because that’s your livelihood. 

Most people didn’t get into this for the money. Some much easier ways to make money than this. Not that the money’s not good, but, you know, you don’t end up being a hedge fund owner here, personal injury attorney. You do this because you feel something for the point of view that is being expressed by your clients. And some people then sell themselves out. That’s what I think happens in any business.

Music Transition:

Mason Pelt: And just because they haven’t touched on yet, why don’t you explain a little bit about how Greenberg & Stein operate? Because I kind of approached you because I feel like your firm is doing net good for the world.

Joshua Stein: I appreciate that. I feel like that. We formed Greenberg & Stein in 1998. Both of us were solo plaintiff’s attorneys for a little while before that, each of us having left separate jobs. We were friends. We had about equal small caseloads. And if we could pull our resources, we could get a secretary.  

It just grew a little bit from there. We’re still only a small firm in the scheme of things, four attorneys, including the two of us. And we represent mostly plaintiffs in personal injury actions; although we’ve done other things, we can do other things. Including commercial work, at times when we have a client that knows us or needs us. 

To kind of buttress what you were saying, when I first went out on my own, I tried cases for the defense side, and I couldn’t get as… I just couldn’t get my head around it sort of. I always felt the way you do when you cheat on a girlfriend. Like, is it was… I just had…

Well, my father’s a lawyer. He’s a commercial litigator, who started off as a plaintiff’s lawyer. Did [Ford] Pinto cases and International Harvester cases, and won, I think it was the first one to win a toxic shock case against Tampax. And from that, he kind of like the engineering side of things. He does a lot of non-compete litigation, non-disclosure, litigation, stuff like that now because of that engineering background, intellectual property. 

So, I grew up with that, with the idea that lawyers, defense attorneys too were there to basically make this place a fairer place for everybody. That everybody is entitled to be represented. Everybody, who has a claim, a valid claim, should be able to have it brought to court and have it redressed by a jury of their peers.  And that’s really how far it goes. 

Now, personally, I was an officer, and I’m on the executive board and the board of directors of the New York State Trial Lawyers Association. And through them, I advocate for changes in the law that will benefit the consumer in the face of things like the Federal Arbitration Act, and forced arbitration.  

New York was one of like four states in the union that didn’t have what was called a date of discovery rule, in medical malpractice. Which means, just in brief, you could have gone to the doctor for a colonoscopy. That could have had something on your scan, The doctor tells you to come back in three years. The statute of limitations is two and a half years. And on the next scan, they find a cancer that was actually on the first colonoscopy. Well you couldn’t sue them because the statute had run, even though you would have no way of knowing because the doctor told you everything was okay. So we helped change that law so that people with cancer would have redress. And the doctors wouldn’t have incentive to lie and cover up. 

Our philosophy here is that I usually meet every plaintiff that comes in our door. Sometimes, I guess we may take the case for a little while and get rid of it before I might meet them… I don’t know. But for the most part, if you’ve been here and we kept your case, I’ve met you. Gone over your case with you, and I know… what it means to them.

And the funny thing is you get these people that come in all the time and say, I never thought I would be the kind of person that would sue. I never thought I’d be the kind of person that would be here. And the reason they’re here is because they feel screwed over by somebody else. 

They have got hit at a… while walking across the street. Somebody didn’t take care of their sidewalk. They got hurt on the job by a careless employer. They’re here because when they went and said, “hey, you did this”, the person that denied it or stonewalled them or you know, offered them a pittance and told them it wasn’t a big deal. And meanwhile, they’re out of work for now, three months without disability, without anybody paying their bills. And now they’re angry.

A lot of the people who come to me wouldn’t come to me if people would do the right thing. But I’m here to help people who need the right thing done when, the person who did them wrong won’t take responsibility.

Music Transition:

Mason Pelt: You have to believe them back a bachelor’s degree in international relations; is that correct?

Joshua Stein: Yeah.

Mason Pelt: I’ve met a few lawyers that have like an IR background and almost all of them going to immigration. And I’m curious why that didn’t happen. And it has that affected the way you’ve approached legal practice?

Joshua Stein: I didn’t go into immigration. I think that I just didn’t get exposed to it early. And so as a result, I never learned it. 

It doesn’t really have that much… I mean, Immigration practice in general, unless you’re forming policy, doesn’t really have that much of an international relations component to it, unless you’re I guess making some kind of amnesty claim or…

Mason Pelt: Asylum something with international treaties. There’s a few things. But there they are kind of few… It’s just…

Joshua Stein: But Whatever it is, it’s just one. You’re talking about one law, and then you’re still going with the body of law that got formed underneath it in the United States. If you’re forming policy… Immigration Policy, then possibly. You know, obviously that would come in… International Relations at BU when I was there was a combination of economics and policy sci.

Mason Pelt: Oh okay

Joshua Stein: And so it was… just what I was interested in, and still am interested in when I’m reading, you know, for pleasure. Not that I read that much Non-fiction back then, but it still I was sort of… I was always sort of interested in the news and that kind of thing. That’s why I went international Relations.

Mason Pelt: What is the thing you’ve done in your career, whether it is a law change or a case you’ve represented that you are the most proud of?

Joshua Stein: The one case that I’m most proud of was representing a Muslim clerk from [unclear] who died in the World Trade Center attack. Because; 

A, I did it for free. I did it pro pono. We, the trial lawyers had a… We formed an organization called, Trial Lawyers Care. And if you took a case through trial lawyers care, you couldn’t charge a fee. But that was the point of it.  

If you die in New York State and you don’t have kids or anybody that relies on you financially. Your case isn’t very good, because the only thing that you can recover in New York State when you are killed is conscious pain and suffering. You know, if you are alive for some period of time afterward and then die. Um… And your pecuniary loss, you know, any lost wages, the medical bills, whatever, all that goes to your survivors, if you have any.  

If you don’t… if you’re a child who has never worked. If you’re 85 years old and I’ve retired, and nobody relies on you for money, you can’t make that claim. He was an unmarried single, like 20 years old, 19 years old… maybe 20 at that time. And nobody really relied on him for money. And I was able to get a large sum of money from the fund for him and his family. And they were very appreciative. I knew how big an award it was compared to what I would have gotten in any other system in New York State. Because it’s…you know, people who don’t have people relying on them, their lives aren’t worth that much in the eyes of the law. 

And the work that I do at NYSTLA is also something I’m proud of. I mean, we wrote the Uber law to make sure that the passengers are protected adequately. The New York State, not the New York City of laws, those are two different laws, actually. You know, so the work that I do. 

And advocating on behalf of my clients. The people that I represent, unlike the picture that’s painted in the press or when you hear insurance companies talk about it, are hard-working — Most of them. They’re loyal to their families. A lot of them are undocumented or recent immigrants. 

They’re the grease of the wheels of at least this city, and there’s nobody watching over them, for the most part. They get hurt; they don’t speak the language. They don’t know what to do. And the fact that we can guide them through the process and make them feel comfortable along the way, that we help them. And the fact that we can guide them through the process and make them feel comfortable along the way, that we help them. 

I do a lot of other things besides just get them money three to five years down the line. Sometimes we get them lost wages paid. We get them their medical bills paid. We get them, you know, through either referring them to a worker’s comp attorney or through the no-fault personal injury protection system that we have or through, the short-term disability, [unclear] or through the state.

We get them to doctors if/since they don’t know any if they’re not people that normally go to the doctor. We help them so that the three years before they get the money, they don’t, You know, go into a deep depression and… But that’s the fact. I mean, the fact is that a big part of my job is helping them stay on their feet until they can get to the end.

Mason Pelt: The most angry, and depressed and truly unstable I ever became was dealing with litigation that I had, you know, opted into in a sense.

Joshua Stein: Yeah. And that’s, you know, and it’s stressful for them too. 

I always explain to them that your case isn’t your life, and your life isn’t your case. You have to do what’s right for you. I don’t make the decision whether I settle a case or to keep it going, you do. I just tell you what I think about it. 

I find that they respond to that, and that they, my clients, come back and send their friends because we take their personal interest into account. We don’t just say, oh, well, you know, that’s what this case was worth. So you either take it or leave it to go find another attorney.  

You don’t want it? Fine, we’ll keep going. I lost the case once with four hundred and fifty thousand dollars on the table for a guy who I could… I can tell you where I lost the case. I know where I lost it. The guys riding a bike up Third Avenue in the middle of summer and he’s on disability for asthma. And the defense attorney said you’re on disability for asthma. “How could you ride your bike up Third Avenue in the middle of summer without having an asthma attack? “

And he says, oh, “there’s no fumes on Third Avenue.” Okay, that’s it, I’m done. 

You know, so I told them, look, you know, they’re offering you real money on this case. I mean, that’s $150,000 to me, in that case. And I spend probably $30,000 trying a case of my own money to pay for the doctors and all that. Because I am allowed to pay for the experts on the case, like somebody who, you know, to even the playing field. The Insurance companies have the money to pay for those things, so I’m allowed to pay for them on behalf of my clients and then get the money back at the end of the case.  

Umm so I’m out of pocket, thirty grand, and I have a client who is throwing away like $250,000 or $300,000. And he said, “No I want to go.” So I said, “Okay”, we took the verdict, of course we lost. And I said, look… You know… 

He still sent his wife here when she had a malpractice case. So, you know, a lot of time’s they feel that if you’ve done what they… If they made the decision, then they’re not mad. You know, they know that. You tell them. So, you know, they start apologizing to me.

Mason Pelt: I got to say it’s right and correct for him to have apologized to you.

Joshua Stein: But that doesn’t happen often; Thankfully. If anything it ends up working out for them more and I feel like a jerk because I wanted to settle and we won.  

Music Transition:

Joshua Stein: Trying the cases for the defense side, I just felt like I was saving somebody money. I ran into a case where I literally… They made metake the doctor out of the room and send him on his way because he had perjured himself the week before. 

And I said, “well, they guy only wants $75,000, why don’t you just pay him?” and they said “nope, offer him 50.” Why would he take fifty thousand dollars? They know that the doctor was in the back of the room and now he’s not there anymore… 

And they said, “Nope! offer him fifty.” So, I did. He turned it down. That took a verdict for $350,000 and then had to pay $175,000 five to settle it when I recommended them settling it for 75. So that was the day that I knew I don’t want to do this anymore.

Mason Pelt: My thought is there’s tort reform, of course, you know, how much can, plaintiffs win? But I think there could be another form of reform. Almost if there was some sort of an obligation whether it’s the bar or some other entity where lawyers are more free and/or required to say this is an utterly felonious thing you’re asking me to try to defend.  

Or even “No that settlement is so not reasonable that I… I really believe we should do”, and there was something that supported, you know, in essence, lawyers getting to do what they believe to be right.

Joshua Stein: So you bring up two, which were really separate issues.

Mason Pelt: They are…

Joshua Stein: Excuse me, tort reform in the sense of restricting the amount of an award is, in my mind, just blatantly Unconstitutional.

Mason Pelt: I agree, by the way.

Joshua Stein: The Constitution guarantees you a trial by jury without limitation, in civil cases. You know, the only thing that keeps… The only reason that we wear seat belts, the only reason that your car doesn’t explode. I mean, look what happened in Texas when they deregulated the electric companies is… because of tort lawyers. And the only people that want tort reform generally are people that want to get away with something nefarious.

And it may not be at that time. You know, they may not be thinking about it specifically then. But they want to get out of jail free card later down the line. You know, medical malpractice reform… there’s nobody there’s no such thing as defensive medicine. 

You hear about it a lot in medical malpractice, you know, doctors do defensive procedures and therefore insurance companies get overbilled. Because they do a CAT scan every time you go in with a head injury and ninety nine times out of one hundred, there’s no bleed. That’s great. Except that when that 100th person is your kid, you know what I mean? And they don’t order it because they don’t have anything to worry about.

So you’re talking about saving insurance companies money, over risking people’s lives. Because in most states, doctors are required to have malpractice insurance. And so, you’re not talking about the doctors or the hospitals themselves paying out of pocket. You’re talking about the insurance companies. 

Well, then you talk about doctors who can’t afford their own insurance. Well, most of the studies that have been done on this show that there are a few people that raise the rates for everybody. There are a few bad doctors that are allowed to keep practicing and the result is the rates of everybody in their specialties going up.  

In fact, they did a study at New York Presbyterian Hospital where the insurance company came down and said, “you have too many mistakes.” They said, you know, “what can we do to fix the mistakes?” — And they talk to the nurses. 

This was in the OBGYN department — And the nurses said, “We need accountability up and down the line. The problem is that, somebody comes in with a problem and, if we talk to somebody, then we get in trouble and we use this whiteboard…” 

So they revamped the whole system. They allowed the nurses to make decisions, and they went from having the most what are called reportable errors, to having zero. Because the Insurance Company was concerned about losing its money. Not because they were doing something for the common good, or because they were looking to help the pregnant women that went to New York Presbyterian Hospital. But they didn’t, they were paying out too much money for the hospital. So they came in and fixed it.

That’s how our system works. Unfortunately, you know, unless somebody gets hurt in their wallet, they’re not going to do anything. And it sort of goes to that same argument about cancer culture, you know. Oh, this is all cancer culture. No, it’s not free speech. 

You know, if we don’t like what you’re saying, you have an absolute right to say it. But I can absolutely boycott you for saying it and hurt you in your wallet so that you change your actions to be more responsible. So tort reform in that sense, I think, is bad. 

Because first of all, obviously, I think it’s bad. But second of all, every case is different. Every person is different. Everybody’s situation is different. There are methods for dealing with runaway juries. You know, if the defendants feel that they got a bum rap, they can appeal it and the appellate courts can decide yes or no, which they frequently do, at least in New York. And there’s also steps that they can take to be safer. They could choose to do that, but they don’t.

So the idea that you can fit all cases into this one size fits all, and that’s justice; isn’t justice at all. And we know that. This is the only field where anybody talks about that type of restriction. And that’s because we keep people honest. We make them responsible when they don’t want to be. And we’re the only people that do. Even the government doesn’t do it.

Mason Pelt: No, it doesn’t.

Actually, the insurance company thing, one of my arguments for police reform has actually been requiring officers to carry an individual insurance policy. Because now the insurance company says, hey, you’ve… You’ve had a lot of investigations that have led to us paying out some money. We don’t want to continue to allow you to be insured anymore. And it takes a lot of… of the accountability issue… My assessment…

Joshua Stein: I think. Just anybody, anybody. Anybody that would go to any gun owner? I mean…

Mason Pelt: I think yes, anything. :ike, “hey, you’ve been responsible for 90% of the wrongful death settlements. We don’t think you should continue to be allowed to own this piece of hardware that you are using to kill people.” I think that’s a very extreme example…

Joshua Stein: It’s funny, though, I got a phone call yesterday, two days ago from a reporter for NPR who was investigating a named defendant in one of my past cases. A corrections officer at Rikers, who was the subject of eight lawsuits accusing him of beating inmates. And mine was five years ago…

Mason Pelt: At some point, eight lawsuits is a lot.

Joshua Stein: My case was so… It was long enough ago that I didn’t… They were after mine I think. So he didn’t have that kind of rap sheet when I… So I told them what I knew. But you know, I didn’t know that much about him because mine was before, I think all of them. But there’s nobody holding them personally responsible; that’s part of the problem.

Music Transition:

Joshua Stein: Somebody has to have done something wrong. Tell me, what did the person do to you? What was wrong with what they did? And if they can’t verbalize it nine times out of ten, I won’t take the case. 

Sometimes they’re just, you know, naive or uneducated enough not to really understand what happened. And then I have to ask more probing questions. 

But when I’m on the phone with them and they say, “well, I fell on water on the steps”;

Where was the water coming from? Well “I don’t know.” 

How long had it been there? “I don’t know.”

What did it look like? “I don’t know.”

Well, how are you going… I mean, I can’t just say you fell on water on the steps. Tell me what the owner of the building did wrong. “Oh, well, they always drive the garbage down the steps.” 

And you’re saying the water from garbage. “Yes.” 

Okay, now we’re getting… You know, like now we got some… Of I get a video that shows that’s not the case three months into that lawsuit or three months into that investigation. Then I call them up and say, “Listen, why’d you lie?” and I drop the case because what am I going to do with that?  

Mason Pelt: Yeah, you don’t… you’re not in it to lose, you’re in it too, I guess, cut your losses as quickly as you can in the instance.

Joshua Stein: I’m not in it to have that kind of reputation. You know, my job becomes easier; the better prepared I am, the better my clients are, the better my case is. I always say, and my clients choose me, I don’t choose them. 

So if I got somebody who, you know, was walking across the street, gets hit by a car and he happens to have done 10 years upstate for a murder 20 years ago… What am I going to do? 

You know what I mean? He’s not the best guy in the world. But like, he got hit by a car. That doesn’t mean that he doesn’t deserve something.

Mason Pelt: Facts of the case are totally unchanged. Regardless of whether it’s Mr. Rogers or the murderer who has served his time. You know, you’re representing a case, not a person.

Joshua Stein: Well, I’m representing them. But it’s not their fault that they got hit by the car. You know, and, if it is, it has nothing to do with the murder 10 years ago. Do you know what I mean? Like, it’s just two different things.

Mason Pelt: Are there any mechanisms you can think of that might help to mitigate or minimize some of the sorts of aggressive, “My corporate entity could not have done wrong” defenses of things. Stuff that, frankly, should just be resolved in a $75,000 settlement quickly where everyone is happy, and no one had the emotional distress of going to… the sometimes years of litigation that are required and some of the cases that you’ve worked on.

Joshua Stein: There are already things in place. The problem is they’re not… In, diff… I can only speak in New York, in different places; they are different.

So for the last year, my only weapon against a defendant is trial. The fear that a jury will give my client more money than they’re willing to pay. Everything has been frozen for a year. So you have not so good insurance carriers. The ones that don’t like to part with money that fight everything to tooth and nail. 

I don’t know how much you’ve looked into it if you look into property damage claims from like Hurricane Katrina, Hurricane Sandy. You have cases of insurance companies doing things like hiring people that weren’t really engineers or even assessors to go out and look at the damage to a house and put a value on it. And there would be cases where the foundation was broken, where State Farm’s “experts” said that there was nothing wrong and the same thing with Sandy cases. 

And so in New York, we don’t have a particularly strong, bad faith, meaning if I saw an insurance company for bad faith, that they didn’t negotiate in good faith, they didn’t deal the way they’re supposed to under the law with their insured. There’s not a lot of teeth to that law in New York, and we’re trying to change that. There is better in some places. 

In federal court, you can make an offer of judgment. As a defendant, you could say,” all right, I think this case is worth $75,000. If you get less than $75,000, you have to pay my attorney’s fees from the time that I made that offer to whenever the case is over.” If you take it, then you take it. It’s underutilized… Well, it’s not utilized; correctly. 

A lot of times, you’ll [plaintiff] get a very low offer of judgment. That just means like if they get lucky and win, then you have to pay their attorney. It gives you something else to be a little bit afraid of. But they know it’s not fair value for the case and when the case ends up settling at trial for three times, the offer of judgment.

If those things were used in good faith, then the entities behind the defense would have a bigger risk. Well, in one case, they would have a gain. If they were forced to make a good faith offer and then there would be on you to turn it down, then that would, that would help the defense side. And then, you know, strong legislation that holds insurance companies responsible if they don’t take their insurance interests into account would also help that.

Mason Pelt: Okay, no, that actually makes a lot of sense. It’s weird that it wouldn’t get utilized correctly, but. Such is…

Joshua Stein: You know, that’s the thing about legislation. And you see it not that you have to think about the worst-case scenario. You know, you have to think about what is it? What is the court going to say about it when it analyzes it? And I didn’t really learn that until I started advocating on behalf of my clients in the Statehouse because people have good ideas for laws. And then… But the way they’re enacted doesn’t reflect the, you know, the letter of the law or it’s or it’s ideal.

Mason Pelt: And that’s the show. I want to say a special thank you to Josh Stein for coming on. Again, You can check out their firm, Greenberg and Stein. I also want to say thank you to everyone who’s listened. This is the first time I’ve put together a podcast like this where I’m handling everything. And it’s been an interesting journey getting here. If you would like to read the show notes, you can check those out at our website onethatlaw.com. And hopefully, this podcast will be available in all of the normal places where people who like audio podcasts listen to them. Until next time. Thank you.

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