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As if you needed a reminder why not to tailgate

March 15, 2016 by Levinson and Stefani Leave a Comment

Tailgate

An accident captured on a dashboard camera and posted on YouTube shows the consequences of tailgating and what is commonly referred to as “break-checking.”

“Break-checking” is the act of tapping your breaks to jolt someone who inches closer to your rear bumper. In the video, you can see the ensuing fallout as the tailgating driver narrowly avoids crossing the median into oncoming traffic.

Accidents like this have become viral fodder for their shocking and extremely dangerous visuals, as well as the controversy swirling around who should bear responsibility. With dashcams more prevalent than ever, authorities are beginning to see firsthand the degree to which tailgating and break-checking are causing unnecessary danger to drivers everywhere. All drivers have a duty of reasonable care, a legal obligation that holds an individual to a certain standard when engaging in act that could foreseeably harm others. Driving is one of those duties.

As more videos like the one above come to light, it’ll be interesting to see how regulators respond, if at all.

Time to pick your judge

March 10, 2016 by Ken Levinson Leave a Comment

Judge

Take advantage of the CBA’s Green Guide

No matter your political affiliation, I think we can all agree that voting is important. Next week, Illinois gets its chance to impact the 2016 presidential election. Lost in the fray of these highly charged presidential campaigns are the local jobs up for grabs. With the exception of a few big-ticket names, it’s safe to assume our local judicial candidates will largely go unnoticed by comparison.

The sudden passing of Supreme Court Justice Antonin Scalia has brought up big questions about when and who will be appointed. The folks in D.C. will take care of that. But unlike D.C., Illinois is in the minority of states that elects judges instead of appointing them. You’d be doing yourself and your fellow citizens a big favor by doing a little homework.

The Chicago Bar Association provides a great public service called the CBA Green Guide, compiled by a semi-autonomous committee of the CBA that conducts evaluations of candidates and sitting judges up for election in Cook County. Inside you’ll find an overview of political affiliations, legal experience, familiarity with the law, and more about the people seeking your vote. The guide even distinguishes candidates with a semi-endorsement by deeming people “Highly Qualified,” “Qualified,” and “Not Recommended,” all of it based on a screening process developed by the CBA.

It’s in your best interests to stay informed. If you plan to vote this Tuesday, take advantage of what the CBA is offering. The more we know, the better off we’ll be.

Download the Green Guide here

The Erin Andrews tragedy

March 3, 2016 by Jay Stefani Leave a Comment

Erin-Andrews

Eight years ago, Erin Andrews was the victim of a video scandal. Now she’s the victim of something different

Erin Andrews was young, talented and spending a lot of time on the road. During a weekend work trip in the fall of 2008, the ESPN sideline reporter checked into a Marriott Hotel in Nashville, not knowing that her life was about to change. Unbeknownst to Andrews, a man named Michael David Barrett had requested a room next to hers. He altered a hole in the wall and began filming. What happened next was a whirlwind.

Barrett posted the video to the Internet. By the time Andrews found out, the damage was irreparable; it amassed nearly 17 million views, according to one expert. National newspapers began printing stories and running blacked out pictures of the footage on its front pages. Later on, after an interview that aired on ESPN, people began accusing Andrews of orchestrating a publicity stunt to get more attention. She was humiliated, embarrassed, and angry. She was violated beyond reproach. Worst of all, the whole fiasco was likely preventable.

Andrews was in court this week as part of a $75 million dollar lawsuit against Marriott hotels and its partners, claiming that the hotel staff was aware that Barrett had requested the room next to hers and didn’t inform her. Hotel executives deny that the staff did anything wrong, offering up different accounts of what happened. Marriott’s corporate defense counsel, in a brazen display of shaming, went as far as to say that Andrews has benefited both professionally and financially from the exposure.

The protracted legal battle and the details have only recently come into full view. The sportscaster and her family have given sad accounts of their lives after the fact. It’s been emotional. Andrews’s father said his daughter is no longer the fun-loving person she used to be while Andrews says she’s often “scared to meet people.” Even now, she suffers harassment on social media and elsewhere.

Despite such disheartening testimony, there’s a small faction, including Marriott’s defense team, still wondering whether Andrews is simply being opportunistic. Lead defense counsel Marc Dedman decided to put the onus on Andrews, going as far as to say that the incident helped improve her career prospects and her bank account. He brought up Andrews’ recent endorsements by Reebok, Degree deodorant, and Diet Mountain Dew, essentially framing the event as though it were fortuitous. It’s a backwards argument, as if the endorsements should excuse the crime.

This type of baseless victim shaming isn’t unique to Andrews. I have spent the better part of ten years overseeing cases in which defense attorneys have implicitly tried to blame plaintiffs for what amounts to a certain degree of harassment. This is especially true of crash victims, who are often portrayed as reckless, unprincipled storytellers looking to cash big checks. What you won’t hear from defense attorneys is the devastating loss of a job, the uncontrollable debt as a result of hospital bills, and the unshakeable truth that life will never be the same.

These aren’t grandiose platitudes; these are real situations brought on by real events. It takes a low standard to try to prove otherwise. The irony is that corporate defense teams, like the ones Andrews is facing, are the ones playing with money. They’d rather destroy someone’s character before accepting any responsibility or accountability.

How shameful.

The ABA sends Rocket Lawyer packing for good reason

February 25, 2016 by Ken Levinson Leave a Comment

ABA_Rocket Lawyer

Not so fun while it lasted

If you’re not familiar with Rocket Lawyer, we’ll save you the suspense: Rocket Lawyer is a company backed by Google Venture Projects, which until recently, was tapping into the well of the American Bar Association. Problem is, it was also tapping into the referral networks of small practices and solo firms, putting a long-held system in jeopardy. If you’re the founder of a small firm like I am, that should worry you. And not for financial reasons.

The ABA partnered with Rocket Lawyer in October, establishing a now-defunct pilot project called ABA Law Connect, part of a system that allows small business owners an opportunity to associate with ABA lawyers by asking questions through an online-powered network. The idea: business owners pay a $4.95 service fee in order to ask a question and a follow-up question, then negotiate terms of further service. Whether that means meeting in-person, offline via text message, I’m not sure. I am sure, though, that the ABA faced a lot of criticism for Law Connect, forcing the association to reconsider. The Illinois and Pennsylvania state bar associations came out in strong opposition, calling it a “blue plate special” approach and threatening to diminish a network that many of us rely on to build relationships and establish trust with our clients.

Rocket Lawyer would have you believe that anyone opposed to ABA Law Connect is simply concerned with one thing: money. Ironically, it’s Rocket Lawyer that was primed to make a pretty penny. I recently read about the demise of the pilot program, which the ABA dutifully nixed earlier in January after the subsequent pushback. I read this quote from Rocket Lawyer founder and CEO Charley Moore: “We are disappointed that a few individuals chose protecting their lawyer referral revenue and high fees, over innovation, fair competition and the public’s need for wider access to attorney advice.”

All things considered, it seems like a rather shallow comment. The business of referrals, at least in our case, has never been about the fees. If it were, I’d have run my firm into the ground by now. Practices like ours don’t charge for consultation, and like most firms, our fees are contingent on the recovery. Referrals are just minor pieces of a much bigger puzzle.

Moore mentions “fair competition.” But is his model fair? Rocket Lawyer promotes ABA Law Connect as a tool for “easy access,” though I would argue that two questions could hardly be considered accessible. One of the benefits of meeting an attorney face-to-face is having a chance to ask questions and build a foundation. Consider all the legal complexities of any given case; asking two questions is almost as good as saying Hello and Goodbye. Most people would have better luck picking up the phone, dialing an attorney and scheduling a meeting to get the full scope of their situation.

The failure of ABA Law Connect isn’t about an aversion to innovation, it’s about a product that was flawed from the start. Worse, Rocket Lawyer has decided to blame attorneys for its shortcomings. Maybe it’s time Rocket Lawyer looked into a mirror.

Autonomous vehicles: We predict the future

February 24, 2016 by Levinson and Stefani Leave a Comment

Autonomous Vehicles

What will we be doing 50 years from now? Along with the new iPhone L (how long before Apple switches to Roman numerals?), will we also be waiting for the release of the latest DriveOS software? Lamenting the fact that Grandpa won’t come to terms with swapping his old Ford 5 for a Ford 10? Perhaps insurance companies will finally be willing to negotiate premiums because, hey, we’re not the ones driving anymore.

Get ready: autonomous vehicles (AVs) – self driving cars – are on the verge of breaking through in a big way, and it’s with a cheery note of optimism that we peer into our crystal ball for a glimpse into the future—the not so distant future, depending on who you’re asking. The Obama Administration recently offered up close to $4 billion over the next decade to fast-track projects related to the safety of AVs, and the National Highway Traffic Safety Administration has decided that artificial intelligence (AI) constitutes “a driving entity,” meaning drivers will no longer need to be living and breathing in order to operate a vehicle.

To reference an old cliché: It’s not a matter of “if” AVs become part of mainstream consumerism, but “when.” So when it does happen, what will our roads and our world look like? There are a lot of technological, infrastructural, and legal decisions to be made, and we’re taking educated guesses at what could happen.

Insurance makes a move

AV advocates have long preached the benefits of eliminating human error altogether, reducing the number of auto crashes by significant margins. For insurers and drivers, that may mean a national, comprehensive no-fault regime is on the horizon. An AV study by the RAND Corporation suggests that the concept behind no-fault auto insurance laws might become an appealing alternative to tort-based laws for drivers and AV manufacturers. In other words: your own insurance company, would cover your damages in the event of an crash, regardless of who caused the accident. Tort-based law, by contrast, is based on principles seeking monetary compensation from the at-fault party’s insurance company.

What ultimately happens depends largely on which side makes the first move, and likely, who can get the most public support: the insurance industry, the technology and manufacturing industry, or legislators. All have varying interests in the future of AVs. Both the traditional tort model and no-fault have pros and cons in a world dominated by AVs.

The insurance industry depends on receiving premiums and thrives on holding onto as much money as possible, while paying out as little as possible in claims. National no-fault means an insurer of a driver is responsible whereas tort-based systems allow wiggle room for insurers and injured parties to go after the at-fault party. The RAND Corporation paper depicts a world with comprehensive no-fault and limited liability – up to and including immunity – for manufacturers who’s AVs are involved in a crash..

Technology and manufacturing companies want to be efficient and at the forefront of new, exciting technology like AVs. They should also want to manufacture safe AVs, but for a device as complex and dynamic as a self driving car, companies need to be invested in their products, set on frequent updates and advancements.

Of course, if AVs are as safe as anticipated, auto crashes, and thus injuries caused by crashes, will decrease. The result: less no-fault insurance claims, which insurers may be willing to support.  But manufacturers and software developers are still liable in some cases – if the software or hardware of an AV is defective – so they’ll want something to protect them, too. They’ll turn to legislators, demanding immunity or other legal protections, so, they often claim, they can continue to innovate without fear of a massive lawsuit bankrupting them. But with a blanket immunity,  the incentive to create, update, and take responsibility for AVs is arguably diminished.  

As the sides play out, expect an expensive marketing campaign from insurers, who still rely on high premium-paying customers to make money. “Are you in good hands?” may become a much more literal slogan, for example.

Digital corruption sparks new driving policies

Several months ago, WIRED magazine decided to conduct an experiment with two hackers who were able to infiltrate the computer console of a Chrysler-manufactured Jeep. The trial ultimately forced one driver into a ditch on the side of the road. Though the stunt was planned, it caught the attention of lawmakers who were none-too-pleased with the prospect of real-life remote-control cars. Two Senators in particular set out to look closely at the way hacking presented challenges in a fully autonomous driving world.   

That brings into question matters of digital corruption policies and the establishment of security practices to protect drivers from themselves (accidentally installing malware, for example), as well as laws to deter and punish outside forces like hackers. Tailoring these laws to a world in which AVs are prominent would be beneficial in the long run. Expect Congress to take a much more detailed look in the coming years as AVs become more prominent

The legal field starts retrofitting old laws to fit new ones

The days of Napster and P2P file sharing sent some copyright lawyers into frenzy. Attorneys were grappling with a new technological capability—mass downloads—and relying on outdated precedents to argue infringement. So much was happening in such a short time that it became easy to misunderstand what was really going on. As file sharing and copyright laws progressed, a new set of case law began to afford the technology its own body of law, giving lawyers a means by which to prosecute effectively. We may soon see the same thing happen when it comes to the rules of the road for AV.

Today’s question

We have to decide, as a community, how all the moving parts of the AV puzzle will fit together. Who will make the rules, and how will those rules be enforced? At this point, there may be things we don’t know that need changing in order to have AV operating seamlessly. Ford, for example, is working to create an on-demand ride service—like Uber—with AVs. Who would’ve conceived of such an idea just five short years ago and what would the consequences be, both legally and economically? The future is coming into full view. The bigger question is: can we keep pace?

Traffic deaths rise in the U.S.

February 9, 2016 by Ken Levinson Leave a Comment

The number of traffic deaths in the U.S. jumped by 9.3% during the first nine months of 2015, a surprising rise after years of steady decline, according to recent numbers collected by the National Highway Traffic Safety Administration.

Motor vehicle fatalities rose to an estimated 26,000, up from 23,796 the previous year and equaling a fatality rate of 1.1 deaths per 100 million vehicle miles traveled. That’s the highest rate since 2012; between 2000-2014, traffic deaths declined by 22%.

The NHTSA announced yesterday that the first nine months of last year was one of the deadliest in recent memory, prompting the U.S. Transportation Department to look at new ways to prevent traffic-related crashes—94% of which are due to human factors.

NHTSA President Mark Rosekind, who took over the federal division in 2014, has made it a priority during his tenure to reduce the number of the traffic-related crashes nationwide., going as far as to say that crashes have the potential to be eliminated altogether with the advent of self-driving cars.

One theory as to why the numbers have risen so dramatically over the last year is the impact of an improving economy and low gas prices. Given the alarming number in 2015, the NHTSA plans to organize safety summits in the coming months. Ride-sharing businesses like Uber and Lyft have also stepped up their efforts to improve road safety as more people decide to get behind the wheel. (Both companies have encountered safety issues in recent months and we’ll be tracking and analyzing their progress.)

Among the talking points at these summits, Rosekind has said, is discussing and analyzing ways to improve behavioral traits in drivers and addressing all-too common issues like drunk driving and those who refrain from wearing seat belts. The NHTSA kicked off a summit recently in Sacramento, California and plans to host additional summits around the country, including Washington, D.C.

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