Breakstone, White & Gluck was featured in Massachusetts Lawyers Weekly this week. Read the article.
Requiring attorneys to get pre-approval to question potential jurors is the “wrong approach,” Attorney Marc L. Breakstone said in a recent Massachusetts Lawyers Weekly article.
Breakstone was commenting on a change to the rules for voir dire in Massachusetts. Judges were long responsible for questioning prospective jurors to determine if they could sit fair and impartial in Massachusetts courts. But in 2014, the Legislature approved the introduction of attorney-conducted voir dire. For the first time, attorneys were allowed to directly question prospective jurors.
We are reprinting a Letter to the Editor which ran in today’s Massachusetts Lawyers Weekly. The letter was written by Attorney Reza Breakstone of Breakstone, White & Gluck in Boston and J. Paul Hoybjerg of Sacramento, California.
To the editor:
The Oct. 3 page 1 story “PI bar eyes ‘driverless’ technology carefully” raises important questions regarding the future of auto injury claims and the potential impact on tort lawyers.
One of the central questions is: Should all auto injury claims involving a self-driving car be treated as product liability claims? Our contention is no; tort law will be perfectly suited to address claims involving self-driving cars.
Although self-driving cars seem like an imminent reality, they are, in fact, still many years away from hitting the roads en masse. The technology will be phased in like other automatic features on cars. Responsibility for control of vehicles will diminish gradually.
Even after cars become more autonomous, humans will remain involved in many aspects of the operation of the vehicles. For example, there will be times when a person must take over the car or bring it to a stop. One must also keep the car in good condition, not permit operation in adverse weather conditions, and maintain the vehicle according to manufacturer recommendations (i.e., it may be negligent to make after-market changes such as lowering a vehicle or installing a new exhaust or programming chip to increase the speed).
Although product liability claims may be appropriate in certain instances, we are confident that the common law of negligence claims will evolve with the technology. A wholesale transformation of the practice is unnecessary. It is wise to look to trends to predict disruptions in the practice. But the self-driving car need not be that disruptive.
As long as humans are involved in the operation, maintenance, modification or repair of autonomous vehicles, tort jurisprudence will apply.
J. Paul Hoybjerg
Attorney Marc Breakstone was featured today in a front page article in Massachusetts Lawyers Weekly concerning factors which may influence plaintiffs’ attorneys to take medical malpractice cases to arbitration and waive the right to a jury trial.
Attorney Breakstone, a medical malpractice lawyer who has practiced in Boston for 28 years, has obtained record-setting awards for clients in medical malpractice cases involving surgical malpractice, failure to diagnose cancer and ambulance negligence.
Breakstone was among a group of Boston medical malpractice lawyers who were interviewed by Massachusetts Lawyers Weekly. The lawyers cited a number of reasons for taking cases to arbitration, including the ability to remove some of the risk when insurance companies agree to pay plaintiffs within a range of compensation limits at the end of the process.
Breakstone said the personal needs of a plaintiff may also be a valid reason for choosing arbitration. He recalled the case of a terminally ill patient whose trial was delayed.
“I was uncertain my client was going to live that long,” Breakstone said. “I elected to waive a jury and arbitrate the case so that my client could have her day in court, so to speak, and see her case to the end.”
A plaintiff’s personal circumstances may also come into play, Breakstone said. For instance, if a plaintiff is an undocumented immigrant, jurors may consider that over the facts of the case.
“You’re more likely to get a fair hearing in front of an arbitrator who’s more likely to disregard those factors,” Breakstone said.
Arbitration may also be the best choice in cases when aggravating factors work against a defendant, such as substance abuse, Breakstone said. In those cases, the plaintiff may obtain a higher award from an arbitrator.
“A jury is more likely to be upset and want to punish the defendant in a compensatory award than an arbitrator would,” he said.
Massachusetts Lawyers Weekly writes this week about the divide among lawyers on monitoring social media use and Internet activities by jurors. It is a common practice, especially in Massachusetts, which does not allow attorney-conducted voir dire. There have been no ethical opinions on the subject issued in Massachusetts. Not all attorneys are comfortable with it, but some consider it fair.
“I see no ethical issue. It’s in the public domain,” says Marc L. Breakstone, a Boston personal injury and medical malpractice lawyer with over 25 years of experience. “The public domain is the public domain. There’s certainly nothing wrong with checking the Internet. There would be a lot wrong with interacting with jurors or doing anything on the Internet to influence jurors with respect to the case.”
Breakstone later adds, “Trial lawyers are starving for information about jurors. The Internet is a potential treasure trove of information. Why wouldn’t a diligent trial lawyer inquire of that source? I would rather have voir dire, but without voir dire, this is all I can do.”