Crimes in Jersey City and Estates in Red Bank 🏙️ with Michael Warshaw

Michael T. Warshaw:
Yeah, I saw when I was a law clerk, I saw a trial, actually a motion to suppress, there was a state trooper who patrol, I clerked in Jersey City, Hudson County, where they have the Turnpike extension that goes to the Holland Tunnel through downtown Jersey City. And this trooper patrolled that section of the Turnpike and all of his arrests ended up in the Hudson County criminal courts. and my judge was one of the criminal judges. And I watched a suppression motion on a weapon that he had found in a vehicle that he pulled over. Couple of interesting facts, the trooper was white, there were, and he, I never saw him in a case with a white defendant. So, you know, this is no proof but a suspicion of what his ulterior motives were. But I saw him in a case testify about where the gun was located and how he found it. And his story had the gun under the front seat passenger side, under the front seat driver's side, in the glove box, in the console in the middle of the car, in the back. I mean, the gun moved around the car. more than a fly who's trying to get out. It was unbelievable. Ultimately, the search was sustained because the defendant didn't take the stand and an emotion is suppressed. There's all kinds of other issues going on. And part of it is that the kid actually did have the weapon in the vehicle with him. So in a perverse kind of way, justice really was served. But this particular trooper, ultimately got caught and was terminated from the state police and ultimately charged criminally for falsifying evidence and stuff. But in the one case, talk about cops who thought the end justified the means, this was one of those cops. It was horrible.

Tommy Podcast:
Yeah, and by the way you describe it, he doesn't seem to have that super villain, um, genius level of planning. If on its face, there's a bunch of questions about, uh, why is the gun moving around in the car? That doesn't, it seems like the guy's going to get caught if that's the, the M.O.

Michael T. Warshaw:
Well, I mean, bear in mind, I went to college during the Vietnam War. And the Vietnam War ended while I was in law school. So I was not a real fan of authority anyway. So I may have been suspicious of this trooper just because he was a trooper at that point, because I was, I don't know, 25, 26.

Tommy Podcast:
Oh yeah, this is Young Michael.

Michael T. Warshaw:
Yeah, and I had a view of the world that was, you know, a 26-year-old view, which was not as well informed as I like to think it is now, and not as well reasoned, and a whole lot more. reactionary probably. You know, so my memory of that particular case may not be as bad as I paint it, but it was, I didn't think it was good then and in retrospect I still don't think it's good.

Tommy Podcast:
Interesting. So what part of Jersey City were you were you officed in?

Michael T. Warshaw:
I was in the courthouse in Jersey

Tommy Podcast:
Oh,

Michael T. Warshaw:
City,

Tommy Podcast:
okay, okay.

Michael T. Warshaw:
right up the street from the Five Corners on Newark Avenue,

Tommy Podcast:
Okay.

Michael T. Warshaw:
also right up the street from Dickinson High School, which at that time was designated as the most dangerous high school in America.

Tommy Podcast:
I spent about 20 years in Hoboken, so Jersey City is near and dear to my heart.

Michael T. Warshaw:
Oh, very good. Okay.

Tommy Podcast:
Yeah, yeah, there's some establishments in Jersey City. My favorite Turkish coffee in the world is Ibiza. Where's that? Grove Street, I think Ibiza is. Turkish place. Oh my gosh, just the greatest spot. But that's one of the things that's real cool about Jersey City is you can walk from this corner to this corner, to this corner, and go from, you know, Jamaican to Peruvian to Halal, to, oh, that's something I do miss about that area. about all the places to get fresh bread and

Michael T. Warshaw:
Yeah.

Tommy Podcast:
the delis. Well, I

Michael T. Warshaw:
And

Tommy Podcast:
digress.

Michael T. Warshaw:
then,

Tommy Podcast:
Ha.

Michael T. Warshaw:
and to an Irish pub. I mean, you know, but,

Tommy Podcast:
hunt.

Michael T. Warshaw:
um, and, and we used to, um, he's passed away since, long since, but, but all of his former law clerks used to get together and take him out for dinner every year on his birthday. So we just have an annual reunion kind of thing with our judge, which was a lot of fun at his, at his favorite restaurant, which I don't think exists anymore, Casa Dante, which was I want to say on the west side, over underneath the extension, under the overpass, the

Tommy Podcast:
One to

Michael T. Warshaw:
route.

Tommy Podcast:
nine.

Michael T. Warshaw:
Yeah. So. But the Casiusco? No. I can't remember the name. But so that was my.

Tommy Podcast:
There's too many Latin places in Hudson County for me to keep up with and I've tried.

Michael T. Warshaw:
Well, this is an Italian place. He, my Irish judge loved Italian food.

Tommy Podcast:
Oh Italian, oh I don't know it,

Michael T. Warshaw:
Yeah.

Tommy Podcast:
yeah.

Michael T. Warshaw:
Yeah, yeah. No, I don't think it's, I don't think, I think Casa Dante probably closed 15, 20 years ago already.

Tommy Podcast:
Yeah, you're not hurting for Italian food in Hudson County either. I'll tell you what. Oh.

Michael T. Warshaw:
And it's almost all good.

Tommy Podcast:
Hoboken has a fresh Mutz Fest every year. They've got, people come from miles around and I think they have it at the VFW maybe it is, or the Elks Club, and they have a Mutz Fest annually

Michael T. Warshaw:
Oh wow.

Tommy Podcast:
where they judge the best fresh mozzarella. So yeah, tell me that's not a town you wanna live in. I mean, they're

Michael T. Warshaw:
Oh, absolutely.

Tommy Podcast:
just trucking in fresh mozzarella for a contest, oh, that's the stuff. And there's a bakery on every other corner.

Michael T. Warshaw:
Yeah,

Tommy Podcast:
You don't find

Michael T. Warshaw:
and the bakeries

Tommy Podcast:
that everywhere.

Michael T. Warshaw:
were all good. The bakeries were all good. You know, my daughter and son-in-law lived in Hoboken on the river when they were first married.

Tommy Podcast:
Nice.

Michael T. Warshaw:
You know, they have since bought a house, they have two little girls now, so it's a whole different thing.

Tommy Podcast:
It's, it's, um, Oh boy, I bet that was an interesting time. I, that was, uh, you're saying what, that was the eighties when you were. 70s.

Michael T. Warshaw:
No, I finished law school in 75,

Tommy Podcast:
That's right.

Michael T. Warshaw:
and I clerked the 75, 76 term, finished up in August of 76 and started working.

Tommy Podcast:
A very different Hudson County.

Michael T. Warshaw:
Oh, very different. Old Hudson County Courthouse had been closed, and my court... and all the courts were in the administration building on Newark Avenue. The old courthouse, the historic courthouse, was shut down. I watched them start the rehab of the building. They were redoing, they have a slate roof on top of that building, and I was on the eighth floor looking towards New York City and overlooking the courthouse to see the skyline, and all of the workers up on the roof putting fresh slate. up on top of the court, the old courthouse in Hudson County. That was, you know,

Tommy Podcast:
That's

Michael T. Warshaw:
now

Tommy Podcast:
a

Michael T. Warshaw:
you

Tommy Podcast:
big

Michael T. Warshaw:
go

Tommy Podcast:
old

Michael T. Warshaw:
in there.

Tommy Podcast:
building.

Michael T. Warshaw:
It is great. It's a great old building and it's gorgeous when you go inside. They have old murals and whatnot in the courtrooms and each courtroom is unique and different. Very very cool and they have that great rotunda in the middle which my father was a trial lawyer he used to talk about when he first started practicing law when a case was ready for trial they would go to the rotunda and lean out into the middle and call the name of the case and the lawyers on the case and anywhere in the court as you could be heard and you knew where to go.

Tommy Podcast:
That's awesome.

Michael T. Warshaw:
Yeah. Before there was a loudspeaker system or an intercom. So.

Tommy Podcast:
And so now you're, it's Zagerfuchs, right?

Michael T. Warshaw:
Correct. Yeah.

Tommy Podcast:
And where, what are you hanging your hat on these days? Are you, are you just, you know, delegating to the young guys and hanging out on the golf course? Or if you've sunk your teeth into a new direction, where are you at this stage? And what's keeping you interested?

Michael T. Warshaw:
I'm still trying civil cases. I still have a personal injury practice that I handle. I have social security disability, as I mentioned earlier with the

Tommy Podcast:
that. Yeah.

Michael T. Warshaw:
one guy. I have some contested estates.

Tommy Podcast:
Uhhhhhh

Michael T. Warshaw:
I have business disputes, shareholders in a corporation or members of an LLC. who all of a sudden don't get along anymore, there's not enough money and somebody's accusing somebody else of stealing. You know, they're kind of, those cases are kind of like business divorces and they can get very nasty. But the estate litigation is the one where you really see, these are the people you've known all your life and you used to love.

Tommy Podcast:
That's what I was thinking.

Michael T. Warshaw:
And the Smothers Brothers joke about mom likes you best. It's not so much of a joke in the contest of the state matter because if one kid's getting more than the others, there can be hell to pay. And if one kid has decided that they want to take advantage of mom or dad, who's on in years and not quite as sharp as they used to be, they'll swoop in and try and do that, and that can be pretty bad.

Tommy Podcast:
Those are terrible stories. But I imagine that's just every type of interpersonal conflict you can imagine under the sun. Now, what about personal injury? I have to imagine there's outliers in personal injury in terms of just, and. Shoot me down quick because I'll be brokenhearted if I'm wrong because I expect a good story. But there have to be just ludicrous attempts at personal injury fraud for insurance claim purposes and so forth. I mean, that can't have gone the way of the dodo because I just don't think people have evolved past that sort of trickery.

Michael T. Warshaw:
I suspect you're right. I think that I have been lucky because I have, first of all, with personal injury, you have to get medical evidence. And if a client comes in and says, what doctor should I go to? To me, that's an indication that maybe this guy isn't as badly hurt as he'd like us to think. And I send them to doctors who are legitimate, honest doctors, who I know, and if I have a family member I want to get treated, I'm going to send them to that doctor. And so I can kind of separate the wheat from the chaff, and if there's one that's really bad, I can just say, no, I don't want to handle the case. I do the same thing with disability cases. There are people who come in and try and get over on a disability claim. because everybody says, but I know a guy's got nothing wrong with him. He's collecting Social Security disability. Well, no, he probably has something wrong with him and you just can't see it. And that's where people think a lot of scamming goes on is when you can't see the disability or you can't see the injury, but it's there. Somebody who is able, for example, to work every day, but they used to be... a scratch golfer and now they have to take a handicap cart to go play golf. But they love golf so much they don't want to give it up. But when you see them walking down the street they look fine. I mean that's somebody who is going to appear to be maybe trying to get over but when you drill down into the medical records you look at the MRIs and the x-rays and you read the medical reports and you see the medical records you say this guy's badly hurt or maybe this guy isn't as badly hurt as he thinks or she thinks. they are. And so maybe part of my job is to talk them down from their lofty expectations to a more realistic figure so that we can perhaps resolve the case. to a degree, there's certain art to it and there's also a certain method to it. And you just kind of, I kind of feel my way along as I go through the cases. And I've handled enough cases in, well, I said I got out in 75, this is 2023. So what's that, 47 years? Damn.

Tommy Podcast:
48.

Michael T. Warshaw:
That went by quick.

Tommy Podcast:
Um, yeah, you're well, wow. How about it? Yeah. I was born in 74. Uh,

Michael T. Warshaw:
My youngest sibling is older than you.

Tommy Podcast:
Oh funny. Well that's yeah that's why I'm the podcast guy. This is at 50ish makes me the young techie. as evidenced by the fact that I forgot to hit record today. Well, you told a really great story. And actually, you told a great story, a terrible story, to be more accurate. But it was about evidence you can't see on the surface in terms of judging someone on a disability. And the example you used, which I'm not going to ask you to, but it was just an illustration of what you talked about, which is there's very valid, very valid, you know. symptoms of suffering that aren't going to be readily apparent to somebody who's not educated in it. And as well, I would imagine that much of your job, if people are working with you on things like, you know, most of the people I would imagine in these estates disputes, in general, are likely not seasoned in the arena of legal dispute. It would seem to me people who are injured most often in workplace situations and are on a compensation conversation or in a dispute. Most likely, most of the time, they are not seasoned in the legal arena. So I would imagine managing expectations, as you put it, would be a significant part of the upfront, as well as also, like you said, separating the wheat from the chaff. I mean, and you've got experience, you kind of, I get it where you would, there's a no, no benefit to you investing time or effort into something that isn't whole cloth and, you know, substantial. And. There's no benefit to somebody going into a proceeding thinking it's a pot of gold. When in actuality, no, it's actually a long, a lengthy and detailed process. That's going to require great investment of your time. And, um, you know, you should look at it as, you know, as that it's not some magic I qualify to check a box and they're gonna you know you pull a lever and a machine starts spitting out money they're gonna make you work for it and you should go into it with real expectations even if you've got a super solid claim

Michael T. Warshaw:
Sure.

Tommy Podcast:
or not yeah.

Michael T. Warshaw:
Oh, absolutely. And that's an excellent way to put it. You know, I've had a case with a young man who was on a motor scooter on his way to his office early morning up in Hudson County, of all places.

Tommy Podcast:
A, he's a maniac. If he's on a motor scooter in Hudson County, he's a, my goodness.

Michael T. Warshaw:
Well, he was, I said he's a young man, so young man maniac, they're kind of synonymous.

Tommy Podcast:
synonymous.

Michael T. Warshaw:
But he's in the left-hand lane, and in front of him is a van he can't see around. They put the left turn signal on, there's a right-hand lane, he checks behind him to make sure it's safe to pull over, pulls over, and there's an 18-wheeler stopped and parked in a travel lane with no warning signals. And he's so close he can't stop. and he puts his hands up to protect himself from hitting the trailer, and breaks two bones in one arm, and one bone in the other wrist, ends up having surgery to repair all of the fractures. And, you know, I was representing him on a couple of other things. He had some businesses going on that I was representing him on. And he asked me about it. I said, well, I said, let's get the police report and see what's there, and let's take a look at the medical records and see what's there. We ended up filing a lawsuit against the truck company and the driver. We hired an expert on the requirements for trucking regulation, and it turns out that this truck driver broke about six different regulations and created a dangerous condition which basically caught my guy and caused his injuries. We settled the case for a lot of money. I had to hire an expert and I had to go to Texas to depose him on video to use in court because he wasn't coming up to New Jersey from Texas. And as I say, you know, we had some comparative because maybe my guy could have looked around the venues behind and seen the truck and not made the sudden move. But all of the things considered. We discounted the value of the case by about, I want to say 20 or 25 percent, I don't remember exactly. And we settled it for, you know, as I say, a lot of money. The good news is my guy is back fully functional, but he walks around with hardware in his left arm and a screw in his right wrist. And he's going to carry them for the rest of his life. So you know, those kinds of injuries are worth a lot of money.

Tommy Podcast:
Yeah, yeah, I mean anybody who's got to deal with hardware into their, you know, into their late years, there's issues to arise there. There's infections,

Michael T. Warshaw:
Sure.

Tommy Podcast:
there's failure, there's revision surgeries. Oh, that's a, that's an absolute, you know, toll

Michael T. Warshaw:
Yeah,

Tommy Podcast:
to pay. Interesting.

Michael T. Warshaw:
you know, but, you know, he drove into the truck. So they, you know, that's, that was always, that was always an issue that we had to deal with.

Tommy Podcast:
Now,

Michael T. Warshaw:
That's

Tommy Podcast:
in that,

Michael T. Warshaw:
why.

Tommy Podcast:
and was that specifically the tie-in to the 25% discount? Was it, was that, okay, so that's,

Michael T. Warshaw:
Yes.

Tommy Podcast:
that, and that's an interesting way for a layman to understand what goes on in terms of, you know, of, um, the final outcome in a case like that is to put it in terms that aren't in no way legal. It's essentially a weighing of his own actions and coming to the conclusion on your own or in, you know, in negotiations with the other party to say, you know, we'll say the total value is this, we'll say yes, his action contributed, we'll say it contributed 25 percent and do the math.

Michael T. Warshaw:
That's exactly what you do. And New Jersey has what's called comparative negligence. And comparative negligence is a way of looking at a personal injury case, a case where an injury results from the actions of the various parties. And you assume that the total negligence involved is 100 percent. And you apportion the negligence among the players. So if you're stopped at a traffic light and I drive up and I hit you from behind, you did nothing wrong. I'm going to be 100% at fault. But if, um, in, in the case of, of my, my young man on his motor scooter, he might have been able to do something to reduce the chances of the accident happening. And he didn't. And so a percentage of fault will be apportioned to him and the 100% negligence will be broken down so much against the trucking company and so much against my kid. And that's how we sort of came to that conclusion. You especially see a lot of that when you have, for example, an accident that happens because of a defect in property. The person who's in the store, in the grocery store, and there's water on the floor, and they slip on the water because the water has made the floor slippery, and they fall. Well, maybe they should have seen the water on the floor. And so that's gonna be some comparative negligence that they're gonna have to have apportioned against them. And in New Jersey, as long as, if you're the person making the claim for the injury, the plaintiff, as long as your proportionate share of negligence, your comparative share of the negligence is 50% or less, you will recover. But whatever the value of the case is, will be reduced by the percentage of negligence that's assessed against you. So if the case is worth a million dollars and you have your 50% at fault, you'll receive 500,000. If you're 10% at fault, you receive 900,000. If you're 51% at fault, you receive nothing because it's more your fault than anybody else's and you can't recover for your own negligence.

Tommy Podcast:
And

Michael T. Warshaw:
Under the New Jersey law.

Tommy Podcast:
okay, and so the way it's described under New Jersey law by you leads me to believe that it's also a multi-step process where you're not weighing all of this in a single conversation, where first you identify the value of the case and then you move on to a debate about nuance or is that, am I oversimplifying it at that point?

Michael T. Warshaw:
No, I think that that's a fair view of it. I think, I have a case right now that I'm working on. I have a young man who was on a bicycle on his way to work and somebody blew a red light and hit him and knocked him down. The good news is his injuries are not horrific. He's got some bumps and bruises. He's gonna have a hip problem for the rest of his life. but it's not a major hip problem. It's, he can walk without a limp. He just has, he has, so far he's without a limp, but he's, but when you look at the x-ray, you can see something in there. And so, you know, what is that gonna be worth? Well, he's a teenager, so he's still developing. His bones are still maturing. You don't really know, but you know, we send him to an orthopedic. expert who will review everything and tell us what you know what the future is going to hold but he's also a teenager so he's got a life expectancy into his eighties so he's got sixty or seventy years of living with this condition it's only get worse as he ages and so how much is that worth the kid on the bike maybe should have seen the car not slowing down at the red light maybe he could have been a little bit more alert so maybe he's going to get hit with some comparative negligence but the other the driver blew a red light so it's You know, it's pretty simple to assess the liability there. You might tweak it 5% or 10%, but you're really not gonna do much more than that. And then it becomes a question of how bad is the injury and what's the case gonna be worth? So at least that's the way I look at things.

Tommy Podcast:
Yeah, that's tough, especially with a young kid, because first thing out, you say hip injury. What I hear is back pain in 20 years.

Michael T. Warshaw:
Well, or hip replacement. You

Tommy Podcast:
Yeah.

Michael T. Warshaw:
know.

Tommy Podcast:
Boy. And then I imagine you can go down a rabbit hole of, of the medical perspective. At some point, like the back and forth. of an insurance company perhaps and a claimant's medical perspective. I mean, do they, does there become gamesmanship or one-upsmanship in terms of budget and what we can bring to the table in burying you in paperwork from a medical side?

Michael T. Warshaw:
Um.

Tommy Podcast:
In terms of having you to, having to answer their medical side.

Michael T. Warshaw:
In most personal injury cases, not so much. What the insurance companies do is they have a stable of medical experts who, and the good news is I belong to an organization. We have a bank of prior testimony from all of these medical experts. And so we, You know, you get Dr. Smith who's going to be the defense expert. Well, Dr. Smith has testified in 25 cases. I have 25 transcripts of his prior testimony, and I have 250 of his prior reports. And so I take this report and it's an arduous process. But you go through and you say, okay, in this report, the facts of the accident are similar to my case, and in this report he says X. Now he says Y. In this report, you know, There's one defense doctor who's notorious. He's a board certified orthopedic surgeon. So I mean, he's a legit doc. But he went to medical school in Mexico, in Guadalajara, where all of the courses are given in Spanish, and all of the textbooks are in Spanish. And he neither speaks nor reads Spanish.

Tommy Podcast:
I knew you were going to say that.

Michael T. Warshaw:
And he never graduated from that school. He came back to this country to proceed on what's called, what was at the time, and it's no longer available, but it used to be called the Fifth Pathway. And he'd served, I forget, residency, internship, some combination in an American program. Never got a diploma from that program. So he does not have a diploma that says MD. but he is allowed to call himself an MD because he's passed all of the tests that are required to get that designation. And when you question him about this stuff, it's hysterical. It was first discovered probably maybe 10 or 12 years ago already. And he's been hit with the question so many times, his answers have changed over time. And... Well, Doc, how did you manage to get through medical school when you didn't speak or read the language? And his answers have changed. So you question him and it becomes comic. Like a comedy, you said you used to do stand-up. This

Tommy Podcast:
That's

Michael T. Warshaw:
is better

Tommy Podcast:
what

Michael T. Warshaw:
than

Tommy Podcast:
this

Michael T. Warshaw:
stand-up.

Tommy Podcast:
sounds like. I'm no, what I, this all sounds like the, the great material for a podcast. Like there's, there's not, there's always an audience for pointing out. Gibberish or, or conflicting, you know, oh, that's yeah, that's, I mean, the producer in me is like, Oh, that's good stuff. That's gold.

Michael T. Warshaw:
Hahaha.

Tommy Podcast:
This guy's, this guy's gold. Put them on a mic.

Michael T. Warshaw:
We have, and there's other doctors. I had one doctor in a case who saw my client for 15 minutes. I mean, of which five minutes was conducting a medical examination and 10 minutes was talking to the client. And he gave a report in which he said my client had pre-existing conditions and none of the conditions he had were permanent and he was, and anything he had was not related to the accident or pre-existent. Now, my client was in his 30s. So, there's not a lot of degenerative changes in your body when you're in your 30s. That doesn't happen until you get your 40s and 50s. But, and in the meantime, his treating doctor saw him on a every other week basis for about a year, and then saw him monthly for another year, and then sees him every six months for continued maintenance of the condition he's got. He's been through therapy, he's had, I mean, all kinds of, he's had injections, everything. And so I asked this doctor, do you think that the doctor who's been seeing him and watched the development of the sequelae from the accident might have a better view of this and might be more informed on the guy's condition than you are? He said, no. I said, do you think that the doctor who's been, I said, do you think the doctor who has been treating him and saw him from the outset is better able to say what pre-existed and what is as a result of this accident? He said, no. I said, so, do you think you're in a better position? He said, yes. He said, my 15-minute examination gives me all the information I need, and I'm as well-informed as anybody can be, and your client's doctor is wrong. Okay, thanks, doc.

Tommy Podcast:
Those are the best answers he can give you. If he's trying

Michael T. Warshaw:
Yeah,

Tommy Podcast:
to

Michael T. Warshaw:
exactly.

Tommy Podcast:
impeach his credibility, he just did it. I mean, that's,

Michael T. Warshaw:
I don't have to do anything.

Tommy Podcast:
yeah. Now, does that take place? Is that a deposition? Is that a jury trial? Is that in front of a judge?

Michael T. Warshaw:
It was, it was a, it's what's called a debena assay deposition. You go into the doctor's office and as we're on a, on a, on a, a recorded video here, we record the video of the doctor and, and I'm off camera actually, and I ask the question, so you've got this disembodied voice asking questions and the doctor answers. And you see the doctor and, and he talks into the camera and you go into the courtroom and you play that video to the jury.

Tommy Podcast:
And he looks like an idiot. He

Michael T. Warshaw:
well,

Tommy Podcast:
looks

Michael T. Warshaw:
you'll

Tommy Podcast:
like

Michael T. Warshaw:
hope.

Tommy Podcast:
someone who's patently unconcerned with your judgment of whether he's connected to reality or not. Because those two answers are absurd.

Michael T. Warshaw:
That's what you hope. But yeah, that's the kind of stuff that happens. It's quite humorous. It's not so humorous if the jury doesn't like your client or doesn't like your doctor or doesn't like you because then they're gonna take it out in the verdict and hurt your client. But those are the kinds of things that happen.

Tommy Podcast:
Are you, is there any current case law that piques your interest or is there anything that changes your perspective on? what you do in personal injury or in any of your areas. Like some of my criminal lawyers, the conversation, it's brewing, it's all the New Jersey gun laws stuff. What's going on elsewhere? Because that's stuff we've dug into. In

Michael T. Warshaw:
Well...

Tommy Podcast:
your neck of the woods is, I guess, what I should say.

Michael T. Warshaw:
Yeah, there's, I mean, most of the big changes, I think, are coming in areas that I'm not real active in, professional negligence, malpractice.

Tommy Podcast:
That's luck. That's good luck for you.

Michael T. Warshaw:
That's an area that has had some changes. There is a recent New Jersey Supreme Court case that dealt with really a technical thing, but an important thing. When you're involved in a personal injury case, The plaintiff has treating doctors and if all things work properly, you use treating doctors as your expert witnesses at trial because they're in the best position to know what's going on. The defense doesn't have a treating doctor that they can call, so they're entitled to have your client examined by a doctor of their choice to prepare that doctor to be able to give a report and then testify at trial if necessary about what's... is really going on with your client's medical condition and whether it's really related to the accident and so forth. That for a very long time was viewed as strictly a medical examination and nothing more. Sometime back in the 90s, I think the 90s, it might have been the 80s, an appellate division decision came out. uh... that said it's really not a uh... a neutral proceeding it's an adversarial proceeding the defense doctor is working for the defense to support the defense and diminish the plaintiff's claim and therefore the plaintiff should be entitled to have an advocate present at that examination so long as it's uh... that they're unobtrusive and they don't interfere with the exam that has been the subject of much litigation, because there was another case that said, no, it's a non adversarial situation. It's strictly neutral. There shouldn't be anybody present. So they were competing cases. And most people, I think, and judges are people, so we include them, most, people will look at this and say, well, the defense doctor is working for the defense. It really is an adversarial proceeding. And the plaintiff is a layperson who doesn't really know what's going on in that context. And so, and they're going to be nervous and the advice you always give to your clients when they go to these exams is don't talk to the doctor. Don't let them ask you a lot of questions. Just let them examine you. Tell them what hurts. And don't explain to him how the accident happened or anything else because you don't need, we don't need to have that be a problem at trial. But when there's a doctor and a doctor's nurse present in a room and a doctor's asking you questions, and it's hard not to want to answer and it's hard, most people want to cooperate and they want to be helpful. And so the natural instinct is to engage in conversation. And that can come back to hurt you. So. I have a lady who's a nurse practitioner, and she has a group of nurses that work with her, and they will accompany my clients to the medical examination. That's for several reasons. Number one, they're the advocate for the client. And number two, they understand the medicine, and they understand the examinations, and they know if the doctor's doing what he says he's doing, or she's doing what she says she's doing. And if not, they can come into court and testify. I know what the doctor says he did, but I was there and it didn't happen. And now it's not my client against the doctor, it's another professional against the doctor who says, I know these things. I've been to 150 of these things in the last year and this is how they're supposed to be conducted and this doctor didn't do it that way. And so,

Tommy Podcast:
Yeah.

Michael T. Warshaw:
you know,

Tommy Podcast:
Well,

Michael T. Warshaw:
it's just...

Tommy Podcast:
and

Michael T. Warshaw:
It's just...

Tommy Podcast:
you're putting that person, don't you think on its face it's adversarial? And I fell into that layman group who you just described. I would be like, I don't know. I think it's far better for that person to have an advocate in the room. Because where else in the process, you're not telling them in a situation where their words can be used against them in a court of law. They either need an advocate or you need a Miranda type disclaimer in these exams where the doctor's reading off a card and says, oh, by the way, you don't have to talk to me. You don't have to tell me about your. So that would be the other thing is literally have these folks doing a medical Miranda.

Michael T. Warshaw:
Sure, and then in the interim there was another case that said, you can have somebody there, but you, the plaintiff, need to show why it's necessary. And if you can't show why it's necessary, then you can't have one. And the Supreme Court came back and said, no, the presumption is it's adversarial. If you don't want to have somebody there, it's the defendant's obligation to show why it shouldn't happen. So that the presumption is you have somebody, but the presumption can be overcome. And that's sort of reasonable because some exams, if somebody's, like psychiatric and psychological exams, sometimes somebody being present can be a distraction and will skew the results unfairly or unreasonably. But maybe what you do is you have the exam given in a room where there's a one-way mirror and a speaker so you can see and hear what's going on. And if there's something going on that the medical expert can... witness it and then talk about it. So

Tommy Podcast:
Sure.

Michael T. Warshaw:
it, you know, but so that it's still, still an area where we're, there's an effort to find a reasonable middle ground, but at least now this, the New Jersey Supreme Court has said the presumption is you have somebody as your advocate at these medical exams.

Tommy Podcast:
And that's a new, how new is that development?

Michael T. Warshaw:
In the last several months, I just came out.

Tommy Podcast:
Oh, really?

Michael T. Warshaw:
Yeah.

Tommy Podcast:
Yeah, that does, boy, that leads to a lot of very interesting potential conversations though, as you lay it out. I can picture just myriad examples where it could be a little hairy, a little dicey, and a little, say, malleable. You know, that's a very not cut and dry situation to be put into. You know.

Michael T. Warshaw:
Well, you know, when you read a def... And for many, many years, everybody used to talk about independent medical exams because the doctor was quote unquote independent. Well... one of the groups I belong to, we have been working for years to change the terminology. If I send you to a doctor to be examined for purposes of that doctor being prepared to come into court to testify, that's a plaintiff's medical exam, because the doctor is working for us. When you go see a doctor that the insurance company or the defense lawyer has hired, that's a defense medical exam. And calling it an independent medical examination gives it a veneer of credibility that it doesn't deserve.

Tommy Podcast:
Well, and anytime... Well... Anytime you just throw... overt bullshit into the conversation. It sort of poisons everything downstream too. So you can't use language about important topics, like your medical exams for, you know, a lawsuit so casually, because anybody who thinks about the words independent medical exam as they're on their way to get examined for a court case, none of it, none of that is logical. Like none of that applies correctly. So I think that's the kind of the. Yeah, credibility for the whole conversation is lost if you're opening it with the title of the data collection sheet is pure gibberish, yeah.

Michael T. Warshaw:
And it's, we don't speak of it using words, we use the initials. So it used to be called an IME. Well, when I was a young lawyer, I used to say IME Insurance Medical Exam. But in a trial, you can't use the word insurance. So then you have to find another word.

Tommy Podcast:
Oh, that's right. I'll tell you what, personal injury. There are some, I forgot, but I used to work at Whites and Luxembourg. And,

Michael T. Warshaw:
Okay.

Tommy Podcast:
uh,

Michael T. Warshaw:
Good

Tommy Podcast:
and

Michael T. Warshaw:
law

Tommy Podcast:
so

Michael T. Warshaw:
firm.

Tommy Podcast:
it's a big, big operation, uh,

Michael T. Warshaw:
Yeah.

Tommy Podcast:
and neat offices, but it was, uh, Yeah, it was the nuance on that side and the science to it and the ability to have a matrix for whatever your case type is, you know, in terms of how you approach them. very, very different conversation than the majority of the conversations I'm exposed to, which are more true crime. Somebody got murdered and somebody can't be found and that type of terrible, terrible stuff. But the personal injury stuff, you guys get into, I mean there's lots of potential science there and there's lots of potential squishy areas to argue about back and forth. Oh, that's, yeah.

Michael T. Warshaw:
When I was a young lawyer, I used to every year I would take an anatomy course for a course on medicine for lawyers so that I had a working knowledge of it. And it's funny now, again, 40, however many years of doing it, you know, I'm pretty conversant from a layman, I'm a layman, I don't make any pretense, but from a layman's perspective, I'm reasonably conversant about a lot of different areas of medicine. not drugs so much. And again, the guys who do medical negligence, the professional negligence or medical malpractice, those guys really know medicine. You know, in my experience, they're the people who can really talk medicine and all different kinds.