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Random Quote: Better to beg forgiveness, than ask permission
quote: Any lawyer with half a brain knows that he cannot make a living by bringing frivolous lawsuits. This is so because juries will repeatedly find against him and, since he is working on a contingency basis, he will make no money. If he practices in the same place all the time, he will also quickly lose his credibility with both judges and defense attorneys, and will hurt any deserving clients he has.
Hey Reel, you need to spend more time out of the classroom, some things have changed in this world of ours over the years. [img]/infopop/emoticons/icon_biggrin.gif[/img] Read on if you want to see what I'm talking about.
Hey dlaw, easy with the redneck cop remarks. With comments like that I can see which side of the bench you usually sit on. [img]/infopop/emoticons/icon_wink.gif[/img]
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Big winners in disabled crusade? Lawyers
St. Petersburg Times; St. Petersburg, Fla.; Mar 24, 2002; KATHRYN WEXLER;
Abstract:
[Ernst Rosenkrantz], 74, said he is a retired architect. He lives in Miami and is often listed as the plaintiff on [John Mallah]'s lawsuits. Critics charge that Mallah lacks plaintiffs who have legitimately been harmed.
Mallah's previous partner, John Fuller, is the registered agent for Access 4 All and helped register Advocates for the Disabled and Access for the Disabled. Mallah helped incorporate Advocates for the Disabled.
Miami lawyer John Mallah sits at a desk.; The Economy Inn Hotel in Clearwater, exterior.; A handicapped parking space is clearly marked at Dunedin's Best Western Yacht Harbor Inn.; Prabhu Dontamsetti, general manager of the Best Western Yacht Harbor; Inn in Dunedin, shows the features in the bathroom of a handicapped accessible room.; Photo: PHOTO, DAILY BUSINESS REVIEW; PHOTO, SCOTT KEELER, (3)
Full Text:
Copyright Times Publishing Co. Mar 24, 2002
A clutch of lawyers from Miami have carved out a tidy niche for themselves, suing hotels, restaurants and businesses for not complying with the rules on access for the handicapped.
It sounds like a virtuous crusade on behalf of people who need protecting. But critics say it's a racket, that the improvements for the handicapped are often negligible - while the lawyers rake in the bucks.
Sometimes there aren't enough handicapped parking spaces. More often, the lawsuits turn on things like handicapped parking signs that are too low or a wheelchair ramp that is degrees too steep.
Usually, a lawsuit is filed without ever offering the business a chance to correct a violation. The business almost always settles, the attorney pockets thousands in fees. Some consider it legal extortion.
It has worked in South Florida for about five years, and now it has spread to the Tampa Bay area.
Ashokkumar Patel couldn't afford to hire a desk attendant, so he was minding the tiny lobby of his Economy Inn Hotel in Clearwater the day a server dumped a lawsuit on the counter.
A man from Miami whom Patel had never heard of was accusing him of violating the Americans with Disabilities Act. A 45-year-old Indian immigrant, Patel didn't know what the ADA was or what it had to do with him.
"It was in attorney language, and I couldn't understand," Patel said.
He turned to lawyer Robert Walker, who advised Patel to settle quickly. The alternative was a protracted legal fight against Miami lawyer John Mallah, whose bills would surely rocket, fees Patel would be responsible for if he lost the case.
And clearly, Patel would lose. He had not put handicapped signs in the parking lot or created a wheelchair-friendly room at his $40- a-night hotel.
Patel followed his lawyer's advice and settled. A confidentiality clause forbids Patel from disclosing how much he owes Mallah. But Walker said attorney fees for such cases normally run more than $5,000.
Patel and his wife work seven days a week. "This is my first business and something comes up like that " he said quietly, trailing off. He bought the hotel three years ago when he was working in a Chicago car factory. "Right now, with business going slow, I don't know, you know?"
He needs to come up with $1,500 to cover fixes the settlement calls for, including painting handicapped parking spaces and installing grab bars in one bathroom. He is paying Mallah's fees in monthly installments.
Florida leads the nation in ADA lawsuits. In the past year alone, 1,027 such lawsuits were filed in the state, according to the Justice Department. (California was second, with 512.) That doesn't include those in which attorneys were paid their fees and withdrew the cases.
President George Bush signed the ADA into law in 1990. It mandated that new construction and renovations have no architectural barriers for the disabled. For buildings erected before the law, the ADA required only structural changes that were "readily achievable."
The Justice Department enforces the ADA, taking on big targets that have included the state of Delaware. For smaller businesses, the ADA leaves it to the handicapped to file lawsuits.
To encourage lawyers to take their cases, the ADA includes a requirement that the defendant foot the legal bills for both sides. Damage awards are generally barred; handicapped plaintiffs win nothing but access.
But how much access? Sometimes changes agreed to in a settlement don't materialize because enforcement is up to the plaintiff's attorney, said Andrew Imparato, president of the American Association of People with Disabilities, which looks out for the rights of 56-million disabled people nationwide.
Some lawyers are known for bringing in expensive ADA consultants, which burdens the businesses with more fees. The smallest portion of the settlement goes toward renovations, the largest portion by far goes to the attorneys.
"To the extent that they're filing lots of lawsuits over minor violations and forcing them to pay for a consultant and not even making sure the problems are being addressed, that's a problem," Imparato said.
"There's a cottage industry of consultants who are working with the lawyers, basically intimidating small businesses to make a lawsuit go away."
Before he became known as the attorney who has logged more ADA lawsuits than anyone in Florida, John Mallah practiced mainly contract litigation dealing with property and labor disputes.
He credits his uncle Ernst Rosenkrantz, who has used a wheelchair 55 years because of polio, with awakening his sense of injustice over inaccessibility.
"I was close with him and we had traveled and we had suffered the indignities of noncompliance," Mallah said.
Five years ago, Mallah started suing fast food franchises, motels, strip malls, convenience stores and gas stations. "Most on travel corridors, on (Interstates) 95 and 75," he said.
Rosenkrantz, 74, said he is a retired architect. He lives in Miami and is often listed as the plaintiff on Mallah's lawsuits. Critics charge that Mallah lacks plaintiffs who have legitimately been harmed.
"This is just as low as you can go," said Clearwater lawyer Robert Walker, who represents the Patels and two other Tampa Bay area businesses Mallah has sued. "In the old days, they called it 'churning.' It means generating lawsuits just for the business."
The lawsuits have the same "boilerplate language," Walker said. "It's a fishing expedition the same plaintiff, same attorneys, same complaint."
Rosenkrantz's memory is hazy about some of the local lawsuits that bear his name. What was wrong with the Best Western in Dunedin, which Rosenkrantz sued on Aug. 21? "It's hard for me to remember, really," he said.
And Patel's Economy Lodge in Clearwater? Rosenkrantz said he came upon the hotel during a visit to family in St. Petersburg. "I think I was traveling in the area. We made inquiries in there."
The ADA was supposed to be the golden fix for decades of discrimination, he said. "When they passed a law in 1990, I figured, 'Hell, I'll be able to go to a movie and go to the toilet.' After six years I looked around and nothing was happening."
So Rosenkrantz enlisted the help of his nephew, and the lawsuits went flying because Mallah wouldn't notify a business that it was in noncompliance and give it a chance to correct a violation.
"Most businesses started yelling and screaming, 'Why didn't you give us a warning? You just surprised us,' " Rosenkrantz said. "The ADA law has been in effect for 12 years. What kind of warning do these people want?"
Mallah, whose office is in Miami Lakes, said a case can bring him anywhere from no money to $50,000 or more.
He broke with his old law firm, Fuller, Mallah & Associates. Last year, the firm sued the Airport Industrial Park on Hillsborough Avenue in Tampa. The lawsuit said there weren't enough parking spaces for the handicapped, the signs were too low, the ramp was too steep and there weren't handrails from the ramp to the entrance. Counters were higher than 36 inches.
During a dispute about legal fees, U.S. District Judge James Moody Jr. noted that the number of cases Mallah and Fuller had filed was "eye catching."
Moody was so suspicious, he did research and found that from February through October, Mallah and those working with him filed 142 cases in the Middle District, which encompasses the Tampa Bay area. In the Southern District, the same lawyers had filed at least 740 ADA cases since 1998, Moody said, citing the National Law Journal.
Mallah said Moody is not the only west coast judge who has given him a hard time. "The Middle District seems to have been pretty hostile toward the disabled community," he said, "probably because of the volume of cases."
Mallah, 47, is being investigated by the Florida Bar, which won't say what prompted its scrutiny. Mallah said he wasn't aware the Bar was investigating but suspects it is politically motivated.
Meanwhile, lawsuits bearing Mallah's name keep arriving. "We're not suing everybody," Rosenkrantz said. "We don't have that capacity."
Others have stepped up to help. In the past few years, a dozen nonprofit organizations have sprung up, some solely for the purpose of becoming plaintiffs. The attorneys who file the lawsuits have helped the groups incorporate.
Mallah's previous partner, John Fuller, is the registered agent for Access 4 All and helped register Advocates for the Disabled and Access for the Disabled. Mallah helped incorporate Advocates for the Disabled.
Mallah said plaintiffs feel more comfortable filing lawsuits as a group.
U.S. Rep. Mark Foley, a Republican from Palm Beach, considers the rash of lawsuits a bane for Florida.
"It's a tragic situation," he said. "They've been moving their way up the coast, spreading like kudzu vines."
The Best Western Yacht Harbor Inn in Dunedin has been promoting Room 126 to disabled visitors for seven years.
Against a wall is a table, sturdier and squatter than in other rooms. The full-length mirror is a few inches lower so people in wheelchairs can see their feet. The entrance to the bathroom was widened and a curtain replaced a door. Hand rails are bolted above the tub.
The hotel proprietors also own the upscale restaurant next door, Bon Appetit, where years ago they installed a top-end lift to carry patrons up several steps to a landing.
"It's our No. 1 choice," said James Gaffney, a visitor from Stevens, Pa., who uses a wheelchair and has stayed at the hotel twice, including a week this month.
Last month, Mallah sued the owners.
Gaffney was incredulous. The hotel was just fine for someone with his condition, he said. "What else can they do?"
Co-owner Karl Riedl said that if someone had a complaint, he should have spoken up.
"The person never, as far as we know, never stayed at our property, never identified himself and told us that there was a shortcoming. And, in fact, we absolutely had no shortcomings," he said.
"The only thing we can think of is when this person apparently was touring the property, we were in the process of repaving our parking lot so the handicapped spot and the blue stripes were still there but the sign was taken down."
Riedl hired lawyer Robert Walker.
"If there is a violation, we're contesting that the plaintiff was adversely affected," Walker said. "We are certainly not just simply going to fork over some money for fees."
The lawsuit is nearly identical to two others Mallah filed against Walker's clients. It says the parking lot is missing handicapped signs and there aren't enough rooms accessible to the disabled. It says the plaintiff needs to inspect the hotel "in order to determine the extent of existing barriers to access."
Said Walker, "It's a fishing expedition to try to find some little justification to maintain that lawsuit which has already been filed."
In Naples last year, Mallah sued another Best Western. His settlement offer demanded the hotel add signs for the disabled and install phones with loud volume for the hearing impaired. But Russ Rosen, the hotel's managing partner, said most of the items had been in place for years. He refused to sign the settlement.
"We restriped the handicapped parking spaces that in some cases were 6 inches too short and we put longer chains on outdoor showers," Rosen said. "I put a different ramp in the back door."
The cost: $1,000.
Mallah's bill: $35,000.
"Blackmail," Rosen calls it.
A federal judge, citing a U.S. Supreme Court case, ruled this month that because Rosen already has fixed the violations, Mallah is not entitled to attorney fees.
Rosen says his dealings with Mallah's firm have been unnecessarily protracted.
"You can't get them on the phone," Rosen said. "They can't run up the bill if it doesn't drag on."
The Code of Federal Regulations is the bible of ADA compliance. The 200-page handbook details acceptable angles of ramps (maximum 1:12), shapes of grab-bars (round, 1 1/4 to 1 1/2 inches wide) and minimum width of aisles for structures built or renovated after the law was enacted (36 inches).
The disabled say it's a godsend; their needs are finally being addressed. To the business world, it's a major headache.
The requirement that toilets for the handicapped be 18 inches from the sidewall has put many businesses on the wrong side of the law, said Larry Schneider, an architect who does ADA consulting for defense attorneys and business owners who want a property vetted. Up to 70 percent of the older toilets Schneider inspects are not the required distance.
Most buildings can be had, Schneider said. "We can go to downtown Tampa and go down Kennedy Boulevard and hit every little store and strip shop and find violations everywhere."
To help businesses spend more money on compliance and less on attorney fees, Rep. Foley sponsored a bill last year that would require plaintiffs to give businesses 90 days to comply with the law before they filed a lawsuit.
"What we should all be working toward is accessibility, not finding ways for lawyers to line their pockets," Foley said. "At the end of 90 days, sue all you want."
The business lobby loved it; attorneys and disabled advocates fought it. It went nowhere.
"It's not going to accomplish anything but give the businesses wiggle room," said Ben Ritter of the Florida Gulf Coast chapter of Paralyzed Veterans of America.
The state of Florida has taken a step on its own. Since last year, every new business that registers with the Division of Corporations gets a letter warning that failure to comply with the ADA could result in "significant civil money penalties."
The issue of notification has become a wedge between lawyers who specialize in ADA litigation. Kip Roth, a disabled Tampa lawyer, says he tells plaintiffs who want to sue without warning to find another lawyer.
"If you file a thousand of these, you can make money," Roth said. "But I also like to sleep at night."
But Fuller said that until the federal government does a better job enforcing the law, attorneys need to step in. "Notification, it doesn't work," said Fuller, 48, who has an office in South Beach. "Personally, I think that the only effective method is litigation.
"If you look at Dade County and Broward County, there is substantial compliance because of advocacy groups."
Mallah, too, continues to sue businesses. And for all the right reasons, he said.
"Any person in the state of Florida with a disability that meets with a denial of access of public accommodation because of noncompliance with ADA, call my office," he said.
I have read every reply in this thread and it is all ridiculous. What if the seas were normal, 4-5 footers, and some 14 foot boat went out and sank. Whos fault is it then? The Captain of course. As far as the attorney argument goes, my wife is an attorney and she gets approached with some stupid stuff from time to time. She will be straight forward with them and tell them it is frivolous and stands a very small chance of being won. They will turn down frivolous cases because they are rarely won. You only hear of the ones that actually win and assume they all do. Well, if an attorney does take the case, it is then their job to do the best they can for their client. It is the client, people like you and I, who insist on suing. There are idiots in every profession, doctors, priests, mechanics(especially marine mechanics), etc. that all take advantage of people and the system. You rarely hear of the good ones, just the bad ones. Same thing here. The guys probably wouldn't have gone out if the tournament was cancelled, but it was their fault for having a small boat. Should the tourney be cancelled every time if the guy with the smallest boat can't fish? The 30 footers were fine. If you can't hang with them, don't enter or get a bigger boat.
Kudos to D-hlaw for graciously taking the abuse heaped upon him. You have my sincerest condolences.
That being said though, you are in a no win situation. Here we go again. Yesterday, the Federal 9th circuit court made a nutcase ruling about a reference to god in the Pledge of Allegiance. By now, the results and the accompanying outrage throughout the land should be common knowledge. What most people don’t know was that the moron atheist who first brought the suit was a lawyer! I’m further ashamed and embarrassed to admit that he is from my neck of the woods (northern California) and so is the court.
Right or wrong, instances like this are why people hate lawyers.
Gotta love the 9th circuit!! Blue Marlin has obviously been subject to a bad experience with an attorney. I only hope that a guy like me can can someday assist him and show him the value of an honest, hard working lawyer. Hell, half the time I am doing things for people for free just because I believe in the cause. Sometimes these same people say bad things too....go figure. Just alot of miserable people in the world...
My views on the courts do not come out of the classroom; they come out of court rooms. After September 11, I left the classroom, and am back doing 70 hours a week in the same kind of frontline job I had for nearly two decades before I became a professor. During the years before I was a professor, I testified in more than 100 criminal prosecutions. While I was a professor, I spent most of my spare time consulting and testifying as an expert on more than 600 civil and criminal cases in 40 states and Canada: you would know many of these cases by name. My posts on this thread are informed by that experience, not by m teaching.
I don't know anybody -- cop, DA, judge, lawyer, expert witness, bailiff, court reporter -- who has spent as much time in court as I have and who would disagree with me.
I do know that you can't base your views of how the courts work every day on a single newspaper story or even a bunch of stories. By definition, the crackpot lawyers and crackpot cases that get into the papers are out of the ordinary. The papers report when man bites dog; they usually don't report dogs that bite men, y'know.
The Reel McCoy
[This message was edited by reel mccoy on 06-28-02 at 01:21 AM.]
I've been following this thread, especially since I was signed up for that tournament, but haven't had a chance to post till now (against the latest web usage policies at work).
I have a 32' Blackfin and have fished the tournament the past 8 years or so. I paid the entry ($325 since I sent it after June 1st, before that date it's $300) plus an additional $40 for dock space for Friday night. After I heard the latest forecast update Friday afternoon I decided to take my truck to the captain's meeting and leave the boat home since I assumed it would be postponed till Sunday, and didn't feel like sitting around at the dock all day Saturday.
Anyway, half my crew showed up at my house that morning and we listened to the radio assuming it would be called off, but wanting to hear the official word. To answer one of the questions, yes, NOAA had issued a small craft advisory. The coastal marine forecast (to 20 miles) was for 5-7' seas from Sandy Hook, NJ to Fire Island inlet (15 miles east of where the tournament starts), 6-8' seas from Fire Island Inlet to Montauk. The offshore forecast from 20 miles to the 1000 fathom line was for 5-9' seas I believe. At 3am the NOAA buoy 20 miles south of Fire Island Inlet was recording 7.5' waves every 7 seconds. With a northeast wind you can assume the further out you go the worse it will get. By 6am wave heights were up to 9' at the buoy. Few offshore fisherman here on the south shore stay within 20 miles of the beach.
At about 5:50am, the announcement was made that the tournament was a go. We were totally surprised by this. I turned on NOAA radio, heard the 9' sea report at the buoy and we all turned to each other and said "let's go striped bass fishing". No one even suggested running offshore, we agreed to eat the entry fee and split it 5 ways and stay in the bay and skip the tournament. I have a 32' Blackfin, which would have handled the conditions a lot better than a 25' Wellcraft, but I still had no desire to be out in 7-9' seas with a short period.
Less than 30 minutes after the 6am start the captain of a 38' Bertram was on the radio saying he was turning around. Many others were turning around within a few miles of the inlet also, calling the conditions 'hellacious', 'trecherous' and cursing the tournament committee. I know of boats as big as a 54' Bertram returning, the captain of that boat saying it was unfishable. Yes, some boats did fish, and sharks were caught, but all said it was pretty bad out.
My feeling is that the tournament should have been postponed, but still the ultimate responsibility lies with the captain. I don't think anyone entered would have normally fished on such a day without the tournament. So just because it's on, does that justify risking your boat and perhaps your life because you essentially placed a $300 bet that you'd catch the biggest fish that day? It's cheaper to stay home and eat the entrance fee rather than spending the money on fuel anyway. While conditions weren't good, the forecast for Sunday was hardly ideal either, perhaps that had something to do with the decision. Some also thought that because many of the guys couldn't fish Sunday because it was father's day (I personally would have lost half my crew to family obligations) they decided to go on Saturday.
Another issue to me is that while 40' boats were turning back shortly after leaving the inlet, here were 4 guys in a 25' boat with a cut down transom pushing out at least 12 miles according to the report. Even if they never turned on the weather that morning and were relying solely on the tournament decision makers, they didn't need to go out 12 miles to realize conditions were dangerous, and with a northeast wind would just get worse. They didn't go down leaving the inlet (which to me would have put more liability on the committee), they went down after pushing out much further than required to make a first hand judgement on the sea conditions.
Here's one for the lawyers to discuss - this is the liability disclaimer every captain in the tournament signed. There was also space for angler signatures, although the application was accepted without their signatures, the captain taking responsibility for handling that -
----------------------------------------------
DISCLAIMER AND ASSUMPTION OF THE RISK
FREEPORT HUDSON ANGLERS, INC, a not-for-profit Corporation, its officers, agents or employees accept no liability to the contestants. The liability of the Freeport Hudson Anglers, INC, its officers, agents, or employees for negligence, breach of contract (implied oral or otherwise), errors, omissions, or delay resulting in personal, financial, or medical injury or damage to any person or persons who are affected by this contet or any consequential damages is limited to the amount of the fee paid for entrance.
The entrance fee for this contest is based on this limitation of liability which is the essence of this agreement.
The contestants herein acknowledge that they are exposed to certain risks in undertaking this contest and they assume those risks and are responsible to act accordingly.
The Captains herein agree to have all participating anglers execute this disclaimer and assumption of the risk and it is further agreed to indemnify and hold harmless the Freeport Hudson Anglers, Inc, its officers, agents or employees from any claim of their participating anglers.
Actually D-H... All of my direct instances with lawyers have been fine... Personally Have never even need to hire one other than to have a will drawn up or to incorporate my business...
I am sure that there are plenty of fine lawyers out there... all though I tend to think many are not... personal injury lawyers as a group... That said there are certainly good reasons for people to sue other people.. or sue corporations etc... but come on D-H... even you have to admit the system is out of hand with bullshit cases!!
So tell us D-H.. I suspect your thought is that the dislaimer on the entry form shown above doesnt mean anything ...right?
Whether the disclaimer will mean anything is a question for the jury. Here's an example: Whenever you get on a roller coaster, you assume whatever risk it may present. But this holds only IF the roller cooster operator is holding up his end of the deal by maintaining it properly to eliminate unnecessary or unreasonable risk. If you get on the coaster and it flies off the track because the operator has failed, for example, to maintain wheel bearings as the manufacturer specified, the disclaimer will probably not mean a thing. This is so because you assume that the man would not sell you a ticket unless he has maintained it properly. That assumption was wrong because the operator did not do his job.
The same kinds of arguments will be made here: hey, our clients signed the disclaimer, but expected that the tournament operator would tell us not to go out if the weather was too dangerous. This will not be as clearcut as a roller coaster case because there are good grounds for arguing that any boat captain who signs up for a tournament should know, independent of what the tournament operator tells him, whether it is too dangerous to go out. That will be the defense argument. The plaintiffs' argument will be that these guys would not have gone out of the tournament operator had called it all off, and that the bad weather imposed a duty on the operator to call it off.
I'd bet on the plaintiffs. But the tragedy is a lesson to all of us -- remember that the family and friends you take on a boat are precious cargo, and use your own head.
Hey, disclaimers are a double edged sword. Do you want to create a system where a simple disclaimer bars responsibility for any act?? Of course not. The promotors were negligent and I hope they get their asses sued off. Maybe they will think twice before holding an event under these circunstances.
