The Law's Delay

New York State's tort system is said to be one of the most disorganized and non-objective in the United States. It's been called a "lawsuit lottery," in which people can win huge awards on the basis of juries' whims. [Link to Tort Law in New York Today" deleted; the page is no longer available on the New York State Bar Association's site.]

Recently I had some limited experience with the New York tort system, which shows a failing not often cited: in being focused on massive amounts of money, it turns the processing of smaller issues into a marathon.

In April of 2001, after learning of indications that's "Dan and Scott Show" may have resumed its earlier practice of making threatening phone calls and giving my name as the caller, I contacted a New York attorney to take action against eyada. I would have considered a restraining order sufficient. However, I was told, you can get a restraining order in New York only in case of "irreparable damage." That is, you can't sue to stop someone when collecting money from him will do. And if you're going to sue for money, it has to be a lot of money.

In brief, the complaint which the attorney prepared would have sued for $1.1 million for illegal public use of my name. Preparing an affidavit for that big a case takes a long time, and things dragged into July before it was complete and I could sign and notarize it.

In fact, the preparation of the suit outlived the defendant. Before the affidavit could actually be filed, did me (and the world) a huge favor by going out of business.

The obvious costs of the "lawsuit lottery" are the fear and uncertainty which it creates, and the litigation costs and awards which turn into higher consumer prices. But the losers also include those whose legitimate cases are delayed, inflated, or priced out of feasibility by the sheer overload on the system. The winners are the fly-by-nights who have moved on or vanished before they can be brought to court -- and, of course as always, the lawyers on both sides.

Additional comment, April 8, 2003: While I have not had another lawyer professionally review the work which attorney Jonathan Geballe did for me in this case, the information I have gathered since Eyada's collapse does not support Geballe's claims about the degree of difficulty in taking legal action against a harasser in New York. In retrospect, I am inclined to view his repeated failures to meet promised deadlines as lack of professional competence more than a reflection of the difficulty of the case. In addition to the "lawsuit lottery," one is playing a lawyer lottery when trying to get adequate legal representation in an out-of-state case.

Additional comment, March 4, 2006: It's been years since Schulz and Wirkus's harrassment campaign fell apart, but I still find myself thinking about it from time to time. In the affidavit which Geballe filed, he charged them with engaging in "imaginary conversations," telling me that was the proper legal term. I've never found any indication that "imaginary conversation" is a legal term for threats or malicious impersonation. When I asked him to mention explicitly that Schulz and Wirkus were threatening people, he added only that the targets "felt threatened." It was as if he thought that explicitly mentioning threats, impersonation, and harassment would damage my case.

Initially he claimed that it was necessary to demonstrate that Eyada had used my full name in order to proceed against them. When I provided recorded evidence of this, he said that the recording was insufficient. When I provided ten such recordings, he said that I hadn't shown enough of a pattern. Finally, on the eve of Eyada's sudden collapse, he told me that if he filed the petition he prepared, he was afraid of being sanctioned by the court. On this point I believe him. He wanted me to understand that as meaning that the court would sanction him for trying to interfere with Eyada's "free speech rights," but I can think of a different scenario. Either way, he was admitting that the case he had prepared at my expense was unfit to bring to court. And he billed me for the time he spent telling me that.

At the time it was too much for me to believe, on top of the long stalking campaign by Schulz and Wirkus, that my lawyer was not representing me honestly; but in the years since then I've been unable to reach any other conclusion. It's implausible that Eyada bribed him, when they could have gotten rid of me with a simple written apology and promise not to permit Schulz and Wirkus to conduct further "imaginary conversations." A more likely scenario is that Schulz and Wirkus, or members of their "Phreak Army," threatened Geballe with the kind of harassment they had subjected me to. Another lawyer with whom I had spoken earlier quoted a very high price, and admitted that one reason was the risk that Internet harassment by the Phreaks could disrupt his firm's business.

Last updated March 4, 2006
Copyright 2001, 2003, 2006 by Gary McGath

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