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Legal Myths vs. Reality – a Continuing Column

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate in the preface to their report pointed out that the law is not self-executing.  It must be executed by humans.  And therefore, it must not be in the hands of those who are not faithful to it. 

MYTH: The Legislature carefully scrutinizes all laws before they are passed into law by the Legislature.

REALITY: This is generally true, but nothing and no-one is perfect, and sometimes loopholes happen that no-one predicted.  And just because a law is passed permitting a particular kind of lawsuit, this does not mean that everyone can have easy access to the courts to litigate the lawsuit. 

One example is the ‘Child Victims Act’ that was passed three years ago. The goal of the law is to permit a survivor of child sexual abuse to sue the persons or organizations claimed to be responsible for the abuse. The victim can sue up to his/her age of 55 years.  For those who were abused in the recent past, they can sue regardless of their age if the abuse happened within one year ago, extended a bit because of COVID. 

Despite the good will of the Legislature, what actually happened in the real world is that some victims could not find a lawyer to represent them. Lawsuits of this sort are too complex to be handled by a lay person without a lawyer, and sometimes even filing fees can be too expensive for a victim.  There are no “pro bono” lawyers for this type of case, that is, lawyers who will take the cases as a professional obligation, without expecting to be paid.  

Paid lawyers who will handle this type of case typically take the case on a contingency. That means that the lawyer must succeed in getting a money judgment or settlement and may then be paid, usually one third of the amount received. 

This can be a good system if a victim has no money to sue. If no money passes hands in the contingency fee arrangement, then all the lawyers’ work is free, and the lawyer will not be paid, or even reimbursed for expenses. 

This means that if the abuser is a rich person or organization, and there may likely be a judgment or settlement amount, then the victim can quite easily find a lawyer to bring the lawsuit.  If the defendant is not rich, and lawyers cannot work for nothing generally, they will not represent the victim while remaining unpaid.  The victim remains without justice, and the perpetrator gets off.  It’s just a fact of our legal system.  

The New York State Legislature is beginning to recognize this loophole.  Advocates of repairing the loophole are urging the Assembly, Senate and Governor to pass the Adult Survivors Act.  This law would create a victims’ compensation fund so that each victim would have the ability to interest a lawyer in taking the case, with guaranteed payment on success.  The payment would come from the fund, and not from an abuser with no money or assets, so the financial status of the abuser is not an issue.  

The proposed bill also would require those lawyers who take a case of this sort against a wealthy abuser on a contingency fee basis to also take cases free of charge. This will take into account the large fees some lawyers earn when the perpetrator is rich.  It would require that these lawyers give back some of their time and work to the system and victims for free. A similar bill was urged in 2018, but did not make it through the Legislature.  

MYTH: Our freedom of speech right is slowly being taken apart.

REALITY:  Last year a man shouted terrible, ugly words at a New York City police office. The judge handling the case described the words as diatribes, and racist, hateful, and obscene. Even the defendant’s lawyer said that the words the defendant used were extraordinarily offensive language.  

The police officer, who was Asian, sued. His lawyer said that the Asian community has been facing unprecedented attacks, which are hate crimes. He pointed out that hate makes more hate, and that hate speech brings violence.  

Nevertheless, the Manhattan judge handling the case dismissed the police officer’s lawsuit.  His reasoning was that the conduct should be condemned and has no place in a civil society.  

He further said that hate speech alone, without an act, is free speech protected under the First Amendment of the U.S. Constitution, and cannot be eroded. He suggested that the officer could ask another higher court or the legislature to carve out an exception to the First Amendment that would prohibit hate speech.  In order to do so through the court system, the officer is appealing the decision to a higher court.  The man, in the meantime, continues his racist remarks, without following the speech with action. Yet.  

MYTH: Insurance companies can pick and choose whether they will offer homeowner insurance to owners of certain breeds of dog.

REALITY: Insurance companies typically set their rates for insurance on the type and number of risks they will be covering, and for which they may be potentially paying out.  If the risk is less, then the fees will be less. If the risk is more, then the fees will be more. 

 The New York State Legislature recently passed a law that would not permit insurance companies to refuse to insure a homeowner who shelters certain dog breeds. They also may not now raise the insurance premium because of certain breeds living in the household.  The most common such breeds are the German shepherd, Doberman pinscher and the pit bull, which have all gained a reputation for being aggressive.  Some of this reputation may have been spread by outsized media coverage of attacks.  If a chihuahua dog bites, it is rarely, if ever, publicized.

Advocates for the law say that a dog is dangerous because of an irresponsible owner, and the fault is on the humans.  The Mohawk Hudson Humane Society said that there is no proof of the truth of the allegation that no one breed is more dangerous than any other, and that this is the biggest myth going in a culture of many myths.

Humane societies across the State said that such expensive discrimination against certain breeds precludes people from adopting and sheltering these breeds, regardless of the truth.  Wonderful dogs of these breeds languish in shelters, and sometimes never find homes. 

The fear is that one’s homeowner insurance rates may go up out of fear that the dog will bite or maul, even is the dog sheltered is the kindest and best trained animal. They say that if a dog is dangerous, it is because of behavior that is learned and not inherited. Pit bulls, in particular, are actually known to be affectionate and great with children, contrary to the myth about the breed.  In addition, a dog’s actual breed cannot be determined without dna testing.  

Those who argue for the insurance companies said that the companies are a for-profit business and that if they cannot restrict the type of breed they are being asked to insure against, they should not have to pay out in the event the dog causes injury. 

Attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.  

Mark Ziobro
Mark Ziobro
Mark is the current Managing Editor for The Utica Phoenix, and a Central New York Native.

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