Bike law basics: STFU

May 28, 2020 § 17 Comments

Cyclists are pretty good at a collision scene when it comes to refraining from admitting fault. This is in no small part because the vast majority of the time it’s the driver that was negligent, not the person on the bicycle.

However, what do you do post-collision? What do you do in the hospital when the cop calls or comes by to take your statement? What do you do when you get a friendly call from the friendly insurance adjuster just friendlily checking on your “condition” and asking a few friendly questions about what happened? What do you tell friends and family who want to know what happened?

With regard to law enforcement, it’s crucial that you tell them everything as thoroughly as you can for the purposes of the traffic collision report they’re going to write. It’s also important that you not make things up. If you don’t recall, it’s important to say so, because gaps can often be filled in with evidence or with deposition testimony from witnesses, from the defendant, or from crash reconstruction. Inserting what you thought happened rather than what you saw and recall, though, creates a whole bunch of problems later on if the facts contradict your story or if you change your story.

But what about the friendly adjuster who is calling with a few friendly questions? In this case it’s important to remember the following lovely Russian proverb:

The first thing you do, is you shut up. And after you get through shutting up, you shut up some more.

Russian Granny

Why?

First, the driver’s insurance company is not your friend. They are your mortal enemy when its comes to getting paid for the injuries and damages caused by the motorist who hit you. Nothing you say will be used to your benefit, and everything you say that can be used against you, will be.

Second, you have no obligation to talk to them. Adjusters love to make it sound like you should, or you’re supposed to, or sometimes the creepy ones will insinuate that you must give them your version of events. Fact: You don’t have to tell them shit and you shouldn’t. The only thing you should do when the driver’s insurance company calls is get a) The name and number of the adjuster b) The name of the insurance company 3) The claim number. That’s it.

Don’t be faked by them sympathetically calling to find out “how you’re doing.” This is their first attempt of many to show conclusively that you weren’t hurt at all or that you weren’t hurt as bad as you claim later. Never, ever tell an insurance adjuster anything about your injuries when they first reach out to you.

Third, as tempting as it is to tell your side of the story to a sympathetic listener, especially when the common scenario has arisen that some jerk hit you and then didn’t apologize, didn’t call EMS, didn’t ask how you were, and immediately began lying to the cops about what happened, you can be pretty angry and feel badly wronged. It’s natural to want the other side to hear what really happened, and for the adjuster to know you’re pissed about the shoddy behavior of their insured.

But you know what? That’s what they want you to do and it’s why they speak as friendly, sympathetic folks who just want to “get your side of the story.” Even if you handle the claim on your own, you should never, ever recount your side of the story to the adjuster until you’ve had plenty of time to reconstruct it with a copy of the traffic collision report, with witness statements, with review of the damage to your bike/clothing/equipment, and with your own recollections.

Fourth, speed is your enemy and it’s the ally of the bad guys. The more quickly the insurance company can lock in a confused narrative, an ambiguous statement, or anything that even remotely suggests fault on the part of the cyclist, the more easy their battle later on. By the same token, you only benefit by moving slowly. You just got hit by a 5,000-lb. car, remember? You’ve been traumatized, hospitalized, and are simply trying to resume some semblance of normality, and sorry, the “needs” of the enemy insurer are not on your priority list. You’ll have plenty of time at a later date to set forth your side of the story, and it must be on your timetable, not theirs.

Keep in mind that their “rush” is wholly fake, because in California there is a 2-year statute of limitations for bodily injury claims. What possible reason could there be for their “rush” to get information?

So what do you say when they call? Nothing at all. Get the info I mentioned above, then hang up. You don’t have to be polite, nice, apologetic, nothing. If you have to say something, tell them not to call you again as you intend to hire a lawyer.

The last and perhaps most difficult place to STFU has to do with friends and family. Everyone wants to know what happened, and if you hire a lawyer, the nosier among them will want to know the status of your case. The Perry Mason wannabes, or worse, your actual lawyer friends, will want to know the guts and details of the case.

This is another great place to practice shutting up some more. The only person with whom your communications are confidential is your lawyer. Friends and family, with the exception of your spouse (not your girlfriend/boyfriend), share no confidentiality for purposes of your case. This means that in deposition you will be asked whom you’ve spoken with the case about, and you’re required to name those people.

Woe to you if they are anyone other than your spouse or lawyer, because those people can then in turn be deposed and there’s zero guarantee they will help your case. In fact, they will often greatly harm it because they’ve misremembered what you said, or they didn’t understand it in the first place. Don’t expose your claim to the potentially damaging testimony of friends and family who suddenly find themselves in the crosshairs of experienced defense counsel.

So what’s the best way to handle these inquiries? Simple. “My lawyer instructed me to discuss this with no one. I can’t talk about it.”

I’ve yet to hear of a client using this line and have anyone take a second stab at prying. It really works.

Silence is well-known to be golden. Now you know why.

END


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How to get yourself sued

May 12, 2020 § 32 Comments

Last year there was a great controversy about bike infrastructure planned by the city of Encinitas, CA. A cycling advocate had been catastrophically injured, bike-car collisions up and down the coast highway were occurring, near-misses were a fact of life, and cyclist use of this roadway was massive and growing.

Instead of doing what made sense, i.e. lowering and aggressively enforcing speed limits to 30 or less, and aggressively educating/signing cyclists that they should occupy the full lane, the city chose to do what non-cyclists love best: Build a better bike lane.

Unlike many such bad plans, this one was vociferously opposed by a wide range of riders. One of the lead opponents was Serge Issakov, an engineer and a bicycle rider and somebody I completely disagree with about a lot of things, most especially his annoying tendency to put two spaces after a period. It’s 2020, Serge. You’re not using a typewriter anymore. Oh, wait …

So I may disagree with him about a lot of things, BUT NOT THIS. Serge addressed the city’s plan last year in an email to his club and publicly opposed the council’s plan.

In the latest newsletter from Encinitas Mayor Blakespear she devotes the most space to  describing, and seeking support for, the proposed Cardiff bikeway project, which is attached below. I’m leaving out  information about who forwarded it to me. You know who you are: thank you. What follows before the forwarded newsletter excerpt are my personal comments which do not necessarily reflect the position of any other persons or organizations with which I’m affiliated. If you have not yet already, please let me know where you stand on the proposed project, especially after reading what follows. If you write to the council, in support or opposition, please Cc or Bcc me. Feel free to forward this to anyone you think might care. As the debate over the proposed $400k project to reconfigure Highway 101 south of Chesterfield Drive continues, the mayor keeps learning and refining her words accordingly and very carefully. I think her summary description of the proposal below, and why she believes it should go forward and be supported, is fairly presented, genuine, and not misleading. If only all politicians I disagreed with on some issues with were this good. The hardest part about opposing this project for me is having to publicly disagree with the mayor and council members who I admire and respect. But here we are. As I’ve said before I believe this is a well-intentioned but misguided project. The mayor  acknowledges the opposition she is concerned with, but seems to dismiss us as being 0.5% of the population that commutes by bike rather than 99% of those who ride through Cardiff, ride a lot, and therefore have the experience to know this is not a good idea in this particular location. Not just for “us”, but not a good idea for anyone. 
To be fair, there is opposition to this project among some cyclists. For 0.5% of the population, the current road striping – paint with no physical separation – works for them to feel comfortable biking to work. There is also a sizable active sport cycling community and a number of dedicated bicycle road commuters who thoroughly enjoy this section of road. Some of those in opposition live elsewhere and travel through Encinitas on weekends. Many consider this open section of roadway through Cardiff to be one of the nicest in the county. I also think this statement reveals the real motive:

And the typical road infrastructure of painted bike lanes next to speeding traffic doesn’t make us feel safe enough to choose to ride a bike, especially with a child on board. 

Okay. I get that. But I disagree the only way to get more people biking for utility is to reconfigure all major roadways to have “protected” bikeways, especially if that means discouraging road cycling like this project does. Such bikeways might be a measurable factor in increasing bike usage in some urban contexts, but they’re not a necessary nor sufficient condition in most. Certainly not feeling safe is a factor, but why people choose personal motoring over biking, despite what they may say in surveys, has much more to do with economics, geography, terrain, average trip distances, available inexpensive or free parking, etc. After all, most of us who do ride on the roads got over the innate and natural fears by gaining certain skills and knowledge which are attainable to anyone who has basic bicycling and driving skills. It’s also quite possible that over-emphasizing the supposed necessity of physical separation for safety, which such projects arguably do, exacerbates the very fears that inhibit cycling, and makes them even harder to overcome. Imagine what we could accomplish by emphasizing the joys, safety and benefits of cycling rather than fomenting the fears!

But the main point is that all up and down the coast, wherever people have the choice to ride on the roads or on an adjacent physically separated bikeway, including those riding for utility/transportation  rather than for sport or recreation, the road is chosen by the vast majority of people on bikes. This is true in Solana Beach, where a rail trail is available next to the 101 the entire length on the east side, portions of Encinitas including the new rail trail north of Chesterfield, further north in Carlsbad, etc. We can all speculate on the exact reasons people have these preferences for road riding, and I certainly have my theories, not the least of which is that on roads there is plenty of space to avoid obstacles, pass slower cyclists, etc., but there is no denying that they do, and great folly to ignore it. And by removing an extremely popular traditional class 2 bikeway to make room for a separated class 4 bikeway, thus leaving most people two far less appealing alternatives — sharing a  traffic lane with 50 mph cars or sharing a narrow bikeway with pedestrians, obstacles, and slower cyclists, from which there is no escape — is doing exactly that. Studies of the effects of  Class 4 bikeways in an urban setting with an adjacent sidewalk, and often with an adjacent roadway with typical urban street speeds, much slower than the 50 mph speeds on 101 in Cardiff, are not applicable to this popular beach location with no sidewalks.

The self-interested response to this project from me is fine, since I’m personally fine with using the full lane.  Thinking about my club I’m good with the sharrows, because that’s how our board voted, and it’s probably acceptable to most of our members.

But it’s thinking of the vast majority not comfortable with riding in a traffic lane with 50 mph traffic that causes me to remain opposed.  Relegating them to this narrow space from which there is no escape to avoid obstacles, surf boards, coolers, strollers, joggers, pedestrians, slower cyclists, etc, is just not right.

Those are my thoughts.  What are yours?  Will you let the council know?
To borrow (modified in caps) from the mayor:

If you DON’T like the proposed idea, please consider writing AN EMAIL IN OPPOSITION  to the City Council at council@encinitasca.gov AND/or speaking IN OPPOSITION at the City Council meeting where it will be discussed on September 25 at 6 p.m. Every voice matters!

Again, please forward as you see fit. 
Thanks,Serge 

Public email, Sep. 15, 2019

I ride in North County San Diego several times a year, and the coast highway can be awesome very early or harrowing very late. So I took Serge up on his invitation and sent out the following email to the city council.

Dear City Council,

I ride in Encinitas/Cardiff several times a year and represent injured clients in North County as well as other San Diego jurisdictions. I have over 40 years’ experience as a cyclist, and close to that as a bike racer. My legal practice represents injured cyclists almost exclusively.

I concur with Serge’s email wholeheartedly and urge you to forego the separated bikeway project for Cardiff. The project will result in more injured cyclists, pedestrians, and more collisions. We have a similar project in Hermosa Beach and it has been a complete failure in terms of enhancing cyclist safety.

Sincerely,

Seth Davidson

Email to City Council of Encinitas, Sep. 18, 2019

When Encinitas got around to implementing its project, it did so by first installing the barriers and not bothering to mark them. The result? At least seven cyclists in an incredibly short period of time were taken off by ambulance. Many more were injured or had bikes/equipment damaged, but managed to limp home.

How crazy was it? Check these photos out. The photo on the right is what the project looked like for days before the final striping was completed. The carnage was incredible, with several riders suffering catastrophic injuries.

So now the city of Encinitas is going to be sued, and a lot of people have asked me how that process works. Like any bad relationship, it’s complicated.

When you sue someone you have a statute of limitations that varies depending on the claim. The California Code of Civil Procedure, Section 335.1 sets forth that time limit at 2 years for bodily injury claims. So you’d think you have two years to gather evidence, depose witnesses and experts, and get treatment.

You’d be wrong.

Wrong because any time you sue a city, county, state, or any other governmental entity, before filing suit you have to file a “claim.” Each governmental entity often has its own claim form, which is a pain, but here’s the kicker: You only have six months to file that claim pursuant to the CA Government Code, Section 911.2. If you miss that filing deadline and the city, if it’s a city you want to sue, rejects your claim, then you cannot file suit.

This is a huge trap for the unwary and it’s not accidental. The last thing that cities want is to be held responsible for their bad acts according to the same rules as people. What is so absurd about the government claims filing process is that it does NOT exist to give cities a chance to fairly resolve claims. In the numerous governmental entity cases I’ve successfully brought to conclusion, in only one case did the city respond to the claim with an offer, and that was for property damage only because the client sustained no injuries.

The rest of the time the city/county/state simply denies the claim, so don’t think that once you file your claim you’re going to get an offer for settlement. All you’ll get if you don’t know the rules is a permanent bar to filing suit, however meritorious your claim.

But it’s far from over, because the way that the city denies the claim is crucial to your case. According to Gov. Code 912.4, the entity has 45 days to deny your claim. Yet in many cases they never deny it. The 45 days come and go, and you’re none the wiser. In this case, which is by far the most common, your statute of limitations for filing suit reverts to two years from the date of injury according to Section 946(a)(2) of the Government Code. The entity simply ignored your claim and denied it “by operation of law.”

If the city does however send you a denial letter, you only have six months from the date of that denial to file suit under sections 912.4 and 912.6 of the Government Code. This is an incredibly short timeline especially since governmental claims often involve construction, multiple defendants, and a host of other issues that are inimical to hurry-up litigation, which is the point. Moreover, whether the city denies your claim in writing within the 45 days or after the 45 days, if they deny it you only have six months from the date of the denial to file suit. The city/entity is playing with a stacked deck; and obviously, if you think you have such a claim, get legal help asap because it’s much more detailed than I’m explaining here.

Even if you get far enough to file the claim and file suit, governmental entities have a host of defenses to protect them from paying the people whose lives they’ve ruined. By far the biggest hurdle is the concept of notice. Simply put, the city had to know of the problem. There are numerous ways to show notice, but by far the best is when similar mishaps have occurred at the same place. Additionally, when cities are sued for injuries at construction sites, they typically have indemnification and defense clauses with their contractors that can require the contractor to assume litigation costs if the city gets sued. What’s incredible about the claims percolating now in Encinitas, and I’m handling one of them, is that the city didn’t immediately shut down the project when it became aware of the injuries. And of course the existence of the extensive public commentary and criticism of the project make it difficult for the city to claim that weren’t on notice that the plans were going to hurt people.

Of course apart from the litigation aspect, the project is ridiculous beyond belief because the lanes themselves are still marked with sharrows, indicating that bikes are rightly in the travel lane. What then was the purpose of the “protected” bike lanes that injured so many people? Might it have been the $400,000 price tag wagging the dog? Maybe.

More likely, though, it was the typical mentality of people who hate Occam’s Razor. Rather than do what’s simplest, i.e. slow traffic and educate, people prefer to do what’s complicated-er.

With horrific results.

END

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Bad fall

April 30, 2020 § 8 Comments

The one thing you can’t do is tell people how to ride their bikes. I see and hear discussions all the time where one person is complaining about how somebody else rides. It’s the most natural thing in the world.

“He’s erratic.”

“He’s careless.”

“She doesn’t know what she’s doing.”

“He’s dangerous.”

“She doesn’t pay attention.”

Rides too close. Rides too far away. Rides too much in the gutter. Rides too far out in the lane. Takes too many risks. Goes waaaaay too fast downhill. Throws back the rear wheel when climbing. Throws back the rear wheel when sitting back down. Wobbles. Weaves. Rides the brakes. Doesn’t shift into an easy gear before stopping. Doesn’t call shit out. Screams too loudly. Runs stop signs. Runs red lights. Too fast on the bike path. Overly cautious. No helmet. No lights. No gloves. Underdressed. Overdressed. Saddle too high. Gear too big. Saddle too low. Gear too small. Poor aimer of snot rockets.

In short? As many things as there are about a bicycle, that’s as many ways as there are to do it wrong according to someone else. Never mind that you’re enjoying the hell out of it, you’re for sure doing it wrong.

What everyone can agree on, though, is that when you fall off your bike someone did something wrong. What the wrong was and who did it, people are going to argue about, but when you’re pedaling along and suddenly you’re in the hospital, it’s unanimous that something was done that shouldn’t have been.

Steve Susman, 79, is one of the top trial lawyers in the nation. I don’t know if you know what the psychological profile is of a top trial lawyer, but let’s just say that they are aggressive, ego driven competitors for whom winning is the only thing … and multiply that times millions … of dollars. As Mike Tigar used to say in his criminal law classes at UT back in the 80’s, “A great trial lawyer is a quivering mountain of supreme self- confidence perpetually trembling on the edge of a bottomless chasm of insecurity and fear.”

I’ve not run into a really top-notch trial lawyer who doesn’t fit that description, so though I’ve never met Susman, I can tell through his cycling career that yep, that’s pretty much him. He is, by the way, in a coma.

Susman got into cycling in Houston, where he’s lived all his life, at the age of 70. He was overweight and in terrible shape. He had the typical gunslinger’s lifestyle: Big cases, big money, a palatial second home in New York, and a palatial spread around his waist.

Some of the attorneys in his office were doing the MS-150 about ten years ago and began needling Susman about how there was no way he could do it. A Feb. 2019 press release summed up Susman’s cycling career like this:

“When Susman, then 70 years old, said he intended to join Susman Godfrey’s team, Swift Justice, his colleagues said he was too old and too fat to complete the ride, particularly since he had never ridden a road bike, didn’t own one and was spending the winter in New York where it was too cold to train,” according to the release. “That encouraged Susman to buy a road bike in New York City, hire a trainer to teach him how to ride (in ski clothes around Central Park), go on a diet, and show up in April to attempt the 150-mile ride. He finished, with a lot of encouragement from his teammates, who waited for him at the top of every big hill.”

Law360.com

Another web site describes Susman as an “avid cyclist” who has “run” in numerous charity rides. In addition to leading spin classes at his firm, he’s raised hundreds of thousands for MS by participating in the “grueling” ride, and he recently quit skiing so that he could, of all things, avoid injuries that might interfere with his ability to pedal.

Susman’s story is ancient. Old guy at the end of his rope discovers cycling, goes all in, discovers he’s athletic at an age when most people are fine-tuning their wills, learns that he can explore the world in new ways, physically and metaphysically, watches his body and mind become youthful and healthy in a way he never imagined, and is transformed forever.

The story is so common and it fits so many people who become cyclists that it’s wholly unremarkable to anyone who’s been around for any length of time. This is the magic of the bicycle, the transformation.

Yet each personal story of change can often also be sub-categorized, and the trial lawyer fits one very distinct grouping. This is the person who engages in cycling as an outlet for achievement and competition against others. I’ll call it the Strava cyclist, and it’s most pronounced in older white men who have made a lot of money. For these cyclists, riding is transformational but it is also a validation of the life they’ve lived up until that point.

“See? I got that $500M verdict and I also beat everyone up that hill.”

You get a sense for Steve’s overweening trial lawyer personality when you learn that several times he was the number one fundraiser for the MS-150, allowing him to pin on the Number 1. How about that? Getting to do a bike ride where everyone knows you’re the money guy? Where you’re distinct not because you are fast and good, but because you are rich?

It’s kind of perfect for trial lawyers who have made millions.

You also get a sense for Steve’s personality when you learn that he ran spin classes at his firm and was the core around which the firm’s riding group was organized. I can well imagine it because I know the type. They’re not worth a fuck on the bike but they have a ton of money and power and they use it to make people ride with them, and more importantly, to make people ride the way they want them to.

The most revealing thing about Steve as a cyclist is in the last line of the paragraph I quoted above, written to show the non-cyclist what a competitor and tough guy Steve was, and written to show how cohesive his team was because they “waited for him at the top of the hill.”

What the fuck is that? No self-respecting cyclist ever waited for anyone ever, least of all some slowpoke Fred on a $15k rig who was doing his first century. The whole point of taking Fred out on his first century is to drop his ass and let him suffer for 90 miles alone in the frying Texas heat, starving at the empty feed stations, out of water, broken in spirit, humbled into a spreading pile of punctured ego, straggling in just before dark. Maybe after he got shelled he hooked up with a fellow Fred in the lifeboat and they became lifelong friends as they dragged, cajoled, and breastfed each other into the finish.

By the time they got there, their “friends” were all drunk, full, showered, bikes stowed, and waiting with every manner of joke at Fred’s expense while the supposed badass choked down the few remaining cold mouthfuls of humble pie. Best of all Fred got to ride home in the club van caked in sweat and humiliation, and hear about how awesome everyone else was … except him.

If you’re a tough guy, go-getter, ass kicker in the real world and you want to bring that into cycling, you don’t do it by making your junior employees wait for you at the top of the hill to cheer you on. You do it by accepting your place at the back of the bus, taking your weekly beatings on the group ride, and gradually realizing the only real life lesson that cycling has ever taught or ever will teach: You suck.

But back to Steve. Whatever his qualities as a cyclist, and trust me I’ve run across more cycling Steves in this world than you have, he is also a philanthropist, a supporter of worthy causes, and a guy who has dedicated his life to using some of his fortune to make life better for others. He’s larger than life, a giant.

Which adds to the terrible news that he’s not only in the hospital, he’s not only in a coma, but he got there by falling off his bike.

What went wrong? One of the riders in the group, another plaintiff lawyer and partner of Steve’s, witnessed the fall.

“In a freak accident, his front tire went into one of those seams [in the road] and locked. His momentum threw him over the bike. He had a good helmet on, but the way he landed, he hit his head very hard,” Manne said Wednesday.

Law.com

This raises so many questions, for example, why is a trial lawyer calling a bike fall an “accident”? Either there was a dangerous condition in the roadway that the city was on notice of and for which the city is potentially liable, or Susman wasn’t paying attention, or Susman was paying attention and didn’t know how to hop a crack, or Susman was going so slow and his ebike was so heavy that he couldn’t lift it and it got stuck in the crack, or Susman was going too fast and was startled by the seam, or Susman’s setup was wrong, with tires that were too narrow for his skill level.

It’s hard to parse “his momentum threw him over the bike.” Was he going too fast for his skill or for the conditions? Or is this just a statement of physics, because every time your bike comes to a sudden stop you’re going over the handlebars?

Moreover, what in the world is “freak” about this fall? It’s about as garden variety a fall as they come when you are on 23 or 25mm tires in an urban environment. For example railroad crossings, of which there are a billion in Texas, are one of the most common and most hazardous road conditions that exist. If you ride a bunch in Texas, you are going to fall on a railroad crossing, period, no exceptions. Same for chugholes, uneven pavement, seams … and Susman was riding in the Braeswood area, whose streets are horrific even for a car.

Why did the other lawyer think it was a “freak” fall? Because of the head injury? Head injuries have been part of cycling since bikes were invented. The first sport helmets of any kind on earth were invented for cyclists, riders of the high-wheel penny farthing, for whom head injuries were such a part of the sport that they were called “headers” and were considered part of what made the sport, and you, tough.

Death and severe injury from head injuries are what drove the development of the safety cycle, i.e. the bike with two equally sized wheels that we ride today. The helmet industry, mandatory helmet laws in Australia, and war over bike lanes v. lane control are all functions of the non-freak nature of head injuries.

I suppose that the freakiness of the fall was the fact that it happened to Steve, the boss, the guy whose life had been transformed by cycling, the guy who was a poster child for all of the good that can happen when you pedal. Of all the people who might have seemed to have an invisible coat of armor surrounding them when they rode, it was likely Steve, pedaling his e-bike safely ensconced in a protective cocoon of his cycling subordinates, duty bound to wait for him and cheer him as he lagged up the hills.

The problem of course is that cycling doesn’t work like that. In cycling, although there are a world of variables that can knock you on your ass, many of which are worthy targets for being sued, in another sense you’re always on your own. Sure, drivers can be negligent and paving contractors can wrongfully put your life in danger, but none of that is going to help you get out of a jam, however much the lawsuit will help pay for the medical bills.

When you ride your bike, your assumption of the risk is total, and I don’t mean that in its legal sense, I mean it practically. No third person can keep you upright, although they can certainly knock you down, and it’s this total responsibility that makes cycling so empowering and so terrifying. Every second of every ride it’s all on you, and you either develop the skills to handle the road’s treachery, or the road handles you.

In fact, no matter how good you are, you’re going to fall, and over time I’ve seen lots of things that correlate with falling off your bike. One of them is speed. The faster you go, the more you’re going to fall. Another is late-entry, especially when combined with speed. The older you are and the less experience you have riding fast, entering cycling late is correlated with falling hard.

Returning to the aggro trial lawyer psyche, the competitor who likes to win, it’s natural to push yourself on the bike, which simply means going faster and working harder. Local trial lawyer Gerry Agnew found himself in a similar predicament several years ago. A complete beginner but aggro competitor, he started racing road time trials in his 60’s and in one of his first competitions he lost control at the finish on his twitchy, high-end TT bike, fell, broke his neck, and spent the next several months in a halo.

I have no reason to think that Susman was going too fast or that he was riding aggressively. What I do have reason to think is that Susman may not have had the skills to navigate bad pavement. Perhaps he thought that being surrounded by friends would keep him safe. Perhaps the fall was 100% caused by the city’s failure to maintain its roads. It’s easy to speculate about what Susman was doing wrong, because as I pointed out at the beginning, chances are good that everyone who doesn’t ride exactly the way you do is doing it wrong.

You = Right Way.

Them = Wrong Way.

Something like that.

It’s horrible beyond words that Susman is in what appears to be a life threatening or life altering medical situation, but cycling in general doesn’t prematurely end your life, it extends it. Everyone falls, but not many fall badly, and of those who do, a surprising number heal up and continue to ride.

I hope Steve Susman is one of those. And I hope the City of Houston fixes its lousy streets.

END


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Fear of not flying

November 24, 2019 § 7 Comments

The closer you get to living without a car the scarier it gets.

It’s true that I haven’t driven since August 17, 2019. But the car, well, it is still there, a giant 5,000-lb. security blanket all plugged in and ready to go.

I’ve used the Kelly Blue Book online quote service and have found that a 2017 Chevy Volt with leather seats, 48,000 miles, and nary a scratch will fetch real money. And worry not, the dealer will come to you.

I don’t miss driving, and I’m daily astonished at the mass stupidity of it all.

Car washes? Are you kidding me?

Gas stations? Are you kidding me?

Car shopping? Are you kidding me?

Stopping in a line of 30 cars to go through a light? Are you kidding me?

Status based on your brand of steel cage? Are you kidding me?

Pulling over for a fire truck? Are you kidding me?

Sitting on the freeway? Are you kidding me?

Drive-thrus? Are you kidding me?

Oil changes and maintenance? Are you kidding me?

Road rage? Are you kidding me?

Flipping through radio stations hoping to find Tom Petty? Are you kidding me?

Paying tolls? Are you kidding me?

Going 3 mph through parking garages? Are you kidding me?

Rental car packages with airfare? Are you kidding me?

Parking? Are you kidding me?

Valet? Are you kidding me?

Speeding tickets and traffic cops? Are you kidding me?

Finding a charging station? Are you kidding me?

Exhaustion from doing nothing? Are you kidding me?

The 110/405/10/101? Are you kidding me?

18-wheelers? Are you kidding me?

Depreciation depression? Are you kidding me?

Insurance? YOU ARE NOT KIDDING ME.

Because as a bike lawyer, cyclist, and 4:00 AM blogger I know that having underinsured/uninsured motorist coverage is the third leg of the stool for savvy cyclists: Use a light, Take the lane, Insure thyself.

And once you get rid of your car you lose your UM/UIM coverage. Or at least that’s what I thought. But then I recalled Francis X.’s famous quote: “Wouldn’t it be great if all the computers in the world were connected with some kind of electronic network that would allow them to instantaneously share information on demand so that you could get answers to questions right away?”

A google later I discovered “Non-owner Liability Insurance.” This is liability insurance for anyone with a driving license who doesn’t own a car, and it comes with UM/UIM coverage. There are a couple of catches.

  1. The insurance is not offered by all carriers.
  2. You can’t have any motor vehicle registered in your name.
  3. The UM/UIM coverage generally maxes out at $250,000, rather than the $500k or even $1M policies offered by some carriers.

Since we haven’t sold our Volt yet I’m not eligible for a policy, but once it’s gone I’ll be reaching out to State Farm agent, cyclist, and friend Stephan Buckley and buying coverage. It’s almost $900 cheaper than my current $500k/$500k policy, which only means one thing: More carbon.

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Work together!

December 2, 2018 § 1 Comment

Cyclists often have a conflicted relationship with law enforcement. This is because law enforcement often does not give so much as one-tenth of a broken fuck about cyclists. They often don’t know the law, don’t care about the law, and have even been known to willfully ignore it to the detriment of the cyclist.

My best worst memory was having a Hayes County sheriff’s deputy outside of Buda pull his service revolver and point it at my head as I tried to escape by riding off in a bar ditch. I fell over so he didn’t have to kill me for failing to pull over.

But it’s not always that way. There are cops out there who know the law, and even more unicorn-ish, cops who actually cycle.

One of those cops is officer Fran Sur. And he’s the classic example of why it matters to have law enforcement on your side.

Last week on the NPR an apparently crazed and/or insane and/or drug-addled and/or drunken driver came close to mowing down the group. He then flipped a u-turn and had a second go, which thankfully came to naught.

Officer Sur, who works for the LAX PD, was immediately on the scene and helped apprehend the suspect. It’s not the first time he has gone above and beyond to make sure that cyclists are respected on Westchester Parkway. An avid and dedicated triathlete (forgiven, dude), and member of Big Orange, he’s an example of what happens when cops and cyclists are one and the same.

Nor is he the only one. Many cops ride, a few of them race, and they are dedicated to making sure that the laws are fairly enforced, not just against cyclists, but against drivers, too.

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Look, Mom, I am famous

November 25, 2018 § 16 Comments

It’s not often that other people not involved in bike-car collisions ask me what I think. But the other day, Phil Gaimon did. Then he podcasted it.

You can listen to the whole thing here. I think I only said “fuck” like, zero or one times.

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Buy a lottery ticket, PLEASE!

December 7, 2017 Comments Off on Buy a lottery ticket, PLEASE!

I am an expert conversation killer, having the ability to bring the liveliest discussions to a screeching halt with a few ill-chosen words, or well-chosen ones, such that you could even consider me a mass murderer of happy dialogue, a Ted Bundy in the world of social gatherings. One of the main reasons that conversations in my presence wilt like delicate orchids in a blast furnace has to do with the topics I introduce.

The topics themselves are harmless, just like guns, because after all, topics don’t kill conversations, people kill conversations. For example, it’s conceivable that there are many social groupings that would relish a conversation about learning Chinese, or about medieval European cities, or about the relationship between Croatian and Bosnian and the degree of mutual intelligibility between Czech and Slovakian, but that’s like saying there are many foods that go well with Bearnaise sauce … and not knowing that chocolate ice cream isn’t one of them.

Even good friends who like to read and who enjoy a robust chat never take the bait, so what I usually do is end up listening, adding a comment every now and then, and keeping most of my thoughts to myself. This, in fact, is the only reason I’m able to hang onto the admittedly few friends I have; I have the hard-earned wisdom to know when to be silent, and its corollary, the knowledge of when to shut up.

Still, even my mustard gas convo weaponry can’t account for the fact that the moment I mention the word “insurance” a pall goes over the crowd. And I talk about insurance a lot.

It’s not because I sell insurance, but because my job puts me into contact with insurance policies all the time, every day, and what’s worse, it puts me into contact with no insurance policies where there by all rights should have been one. I’ve written about the importance of uninsured/underinsured motorist coverage and how it can protect you when you are on a bike and you get hit by a car. If you’re unfamiliar with this crucial topic, please read this.

But recently in L.A. I’ve noticed a very disturbing trend: Cyclists who get hit by cars and who themselves have no UM/UIM coverage under their own auto policy because they don’t own a car. More and more people are simply going bipedal or bicycle-only and stepping off the one-man-one-car, an-auto-in-every-pot mentality that made America mildly great and obese and prematurely dead.

For these cyclists and pedestrians, who have no auto insurance and therefore no UM/UIM coverage to protect them when they are victimized by a hit-and-run or uninsured driver, there is actually a very practical solution. But before I get to it, I have to conquer the conversation-slaughtering effect of the word “insurance.”

Why do people hate the word so much that the moment you say it they stop listening, reading, thinking? Why so much odium surrounding a word that’s ostensibly there to protect you? I’ll tell you why: Because insurance is one of those things in life that signifies a negative obligation with no payoff. Sure, if you need it it pays off, it’s insurance, but the connotation is “pay something and get nothing.” So, like trying to sell people a “living will” or “probate services,” you’re pretty much fucked the minute you mention it.

So I figured out a way around it. All along we’ve been calling it the wrong thing. Instead of saying “insurance,” we should be calling it by its real name, which is “lottery ticket.” Now that will get anyone’s attention! Hey, can I sell you a lottery ticket?

Even if you don’t want one, at least you’re listening. And everyone has an opinion on lotteries, and deep down everyone wants a winning ticket. NO ONE WANTS A WINNING INSURANCE POLICY BECAUSE YOU GENERALLY HAVE TO GET MAIMED OR DIE. But everyone wants a lottery ticket because you might get money!!!!!

Therefore, today’s blog post is about getting a Non-Operator Lottery Ticket. These lottery tickets can be purchased even if you don’t own or drive a car or even have a driving license. The way they work is this: You go to a Lottery Ticket Sales Company (formerly known as an insurance company), and tell them you want one of these non-operator lottery tickets. They will sell you tickets which, if you win, will pay up to $500,000 if the driver who hits you is uninsured or underinsured. These lottery tickets are affordable and a must-have if you ride a bicycle and don’t own a car.

Before you go out and purchase a new speedsuit or a pair of rad cycling glasses or some more carbon to go with your 100% carbon that is all carbon, please get yourself one of these non-operator lottery tickets. Because unfortunately, if you ride enough on the streets of Los Angeles, there’s a real good chance you’re going to win.

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Resist, occupy, stick it to the man, etc.

July 8, 2017 § 27 Comments

I had one the nicest things happen to me yesterday that’s ever happened in my professional career. A group of friends who had been wrongly pulled over by a L.A. County sheriff’s deputy, then harassed, then wrongly cited for obeying the law, invited me to a thank-you dinner.

The thank-you was because I defended all eleven of the sixteen defendants who decided to fight the bogus charges. I’d like to say that everyone was acquitted due to my amazing legal skills and brilliant courtroom wizardry, but with the exception of one actual trial, all of the cases were dismissed because the citing officer failed to appear.

Of course nothing is as simple as it sounds. Deputy Castro, the outrageous and offensive cop who wrote the tickets, did appear once, for the first trial. With the help of expert testimony from Gary Cziko, and on-deck help from Geoff Loui, and due to the deputy’s confusion, dishonesty, misrepresentation, and ignorance of the law, in that first trial the defendant was acquitted.

Deputy Castro was amazed and even a bit angry when the judge ruled for the cyclist; we were kind of shocked as well. It’s not often that the court puts on a full trial, replete with expert witnesses, to fight a bike citation that carries no DMV points and that the People have already offered to settle for fifty bucks.

That one small win had big consequences for the rest of the defendants and for the cop. Deputy Castro, shortly thereafter, was transferred out of the traffic division. You can imagine that the captain was not pleased. Castro had called in a helicopter and five additional squad cars to write up the sixteen cyclists. Additionally, most of the citations had to be amended because Castro had put down the wrong location of the violation. When you tote up the officer time, helicopter time, squad cars, time spent processing, then amending the tickets, it was a significant action on the part of the department given the minor nature of the “violation” of CVC 21202a.

Deputy Castro looked foolish to the court as she lied and contradicted herself under cross-examination, but you have to think that where she really lost face is with her fellow deputies — going to all that trouble to call out so many officers to write a stupid bike citation that she couldn’t even make stick. Keep in mind that cops have pride about their work. No policeman, with the possible exception of the Thank-Dog-He’s-Gone-Deppity-Knox, takes pride in being known as a bike ticket violation writer. It’s drudgery, has zero cachet, garners zero professional respect, and is only done when there is either (a) absolutely no other law to enforce or (b) when the city council has demanded a cyclist crackdown. (a) and (b) almost always occur in tandem …

In the short term, the willingness of the cyclists to challenge these trumped up charges led to one terrible cop being booted from the traffic beat. In the long term it reinforced to the Lomita Substation that there really are more important law enforcement issues in Rancho Palos Verdes. It communicated that with limited resources, the department would be well advised to go pick on someone else, as these fake citations will be fought tooth and nail.

The cyclists who chose to fight instead of pay had to “waste” time and energy in contesting the charges. Compared to the settlement offer of $50 and no DMV points, it might seem like a waste; each defendant had to go to court twice: Once to plead not guilty, and once to appear for trial. But it wasn’t a waste, far from it. It educated the court, it educated the sheriff’s department, and it empowered cyclists to shift gears from being victims to being advocates.

In addition to fighting all eleven tickets, the defendants re-calendared their trial dates so that in the event one of them lost, we’d still have the opportunity to appear again. Since traffic court judges rotate, that increased the chance of getting a different judge and it would have forced Deputy Castro to appear eleven separate times. The one trial we did took well over an hour; that’s a bunch of overtime the department would have had to pay.

If you compare the time and money that was spent fruitlessly trying to convince the Palos Verdes Estates and Rancho Palos Verdes city councils that cyclists are traffic with legal rights, with the the time and money that was spent fighting the tickets, which successfully changed personnel and policy, it was the best advocacy imaginable. We spent hundreds of person-hours at city council meetings only to be beaten down and targeted by crazypants trolls. The public records request (publication forthcoming) I did on Robert Chapman, local PVE sillypants and bike hater, only confirmed that traditional political advocacy doesn’t work very well on the hill. Sometimes you have to suit up and go to fuggin’ court, even when it’s “only” traffic court.

Contrast our political advocacy with the effectiveness of fighting bogus tickets. The cops don’t show up, the tickets get dismissed, and everyone realizes it’s a shit-show, including the police, who are now more reticent to waste time writing the stupid citations in the first place. It dawns on everyone that the PV Peninsula has problems that are more significant than 21202a violations and bicycle stop sign tickets.

Unfortunately, there are still far too many cyclists in the South Bay who are willing to pay the reduced fee and get on with their lives. It’s too much pain and effort to re-calendar, go down to court twice, and deal with the whole headache. So last night, at the thank-you dinner that was ostensibly for me, I took the opportunity to thank all of the people who were willing to stand up for themselves and for others as well. And if you don’t mind, I’ll take this small space to thank them again.

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Hired Guns: Part 9

April 17, 2017 § 18 Comments

Part 9: Who is Robert Lewis Chapman, Jr.?

Last year when the bicycle protests in PV Estates got underway, a guy told me to “look out for Robert Chapman.”

“Who’s that?” I asked.

“He’s this anonymous Internet troll guy who lives in PV and is a complete ass.”

I didn’t pay much attention, since “anonymous Internet troll” always equates with “coward” and since I had other concerns than playing Billy Goat Gruff. Before long, though, this link on the Internet came up, and it won’t take you more than a few sentences to suspect what I did: The anonymous troll author of this web site is seriously deranged. I’m no fan of the PV Estates cops, the council, or the city manager, but these vile attacks on wives, ex-wives, and children are sick, and they’re the product of a sick mind.

Is the author of this junk Robert Chapman? I don’t know for sure, but the bizarre language of the web site is eerily reminiscent of the bizarre behavior in the following police reports, all of which were returned as part of a public records request for “Emails or any other documents in paper or electronic format pertaining to the following matters: Activities or complaints regarding or connected with Robert Chapman.”

Remember all those police reports where an anxious bedwetter in PV Estates consumed countless hours of police time to investigate dogs? Tip of the iceberg …

Hundreds and hundreds of pages were returned as a result of my public records request; some of the documentation is truly bizarre, and I’ll be publishing all of it shortly. I hope you like stories about bald, droopy, middle-aged men prancing around in hot tubs.

But my interest in Chapman is actually specific to cycling. Why is the author of the PVE PD hate web site, whether or not it is in fact Robert Chapman, so torqued about the police department?

I’m torqued about the police because they unfairly target cyclists and harass outsiders. But the hate web site’s author lists a slew of reasons that even a cursory inspection reveals as subterfuge. After a bit of reading, a bit of googling, and a whole bunch of time spent reviewing crazy-talk public and court records, I may have unearthed the reason for the author’s venom, and perhaps his hidden-in-plain-sight identity as well.

This matters to cyclists because the same web site that is going after the organization and the individuals who make up the PV Estates police department is the same person who’s going after cyclists. Perhaps a little sunlight will go a long way to disinfecting his rotten attitude and chickenboy attacks. If not, at least people will be able to pin a face and a name on the donkey who is too cowardly to sign his own name.

But first, a continuation of the police reports and the truly dyspeptic personalities involved. If you’re a cyclist, you should ask yourself again: Can a police department that responds to people and complaints like this ever be expected to treat cyclists fairly, when it’s these very bedwetters demanding that the police “enforce” the laws against cyclists?

black_fedex_deliveryman_mystery

boat_horn_illegal_mystery_pickup_mystery

border_patrol_mystery

car_alarm_mystery

chainsaw_gardener_violation

chainsaw_mystery

chainsaw_mystery_again

chainsaw_mystery_again_again

chainsaw_violations

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complaining_complainant_mystery

construction_noise_mystery

construction_violation_but_stopped_while_rp_on_phone_mystery

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disturbance_mystery

doors_closing_and_talking_mystery

drinking_partier_mystery

drone_operation_at_soccer_field

electric_chainsaw_violation

equipment_noise_crime_v_humanity

equipment_noise_outrage

equipment_noise_saga

fireworks_parking_nothing_found

fucking_asshole_ordinance_violation

hispanic_food_eater_mystery

holiday_construction_unfounded_mystery

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home_counseling_session_noise_session

hose_harassment_mystery

hvac_mystery

hvac_mystery_continued

illegal_tree_trimming_solicitation

journey_music_outrage

landscaping_violation

legally_parked_vehicles_mystery

loud_music_mystery

loud_music_mystery_again

loud_music_mystery_again_again

loud_music_mystery_again_again_again

loud_music_mystery_again_again_again_again

loud_song_mystery

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loud_vehicle_mystery

measurement_of_noise_mystery

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measurement_of_noise_mystery_continued_more

measurement_of_noise_mystery_continued_more_again

measurement_of_noise_mystery_continued_more_again_more

mystery_lobster_conversation

mystery_of_the_loud_bird

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Hired Guns: Part 8

April 12, 2017 § 12 Comments

Part 8: The Interchickens

Anonymity is a powerful thing, and sometimes it’s a force for good. The Federalist Papers were written anonymously, and the numerous hacks that have exposed public and private corruption in our own century couldn’t have been done except under cloak of secrecy.

But anonymity’s power can be used for evil just as easily for good. Threats and harassment from nameless adversaries can punish the innocent and allow the person hiding behind the mask to behave in ways deserving the most extraordinary opprobrium. The most famous of these was probably the troll Michael Brutsch, who, despite his online bravado, became a whimpering sop when he learned he would be outed as a troll and purveyor of hate speech: “When Chen informed [Michael Brutsch] about the impending exposé, he pleaded with Chen not to publish it because he was concerned about the potential impact on his employment and finances, noting that his wife was disabled and he had a mortgage to pay. He also expressed concern that he would be falsely labeled a child pornographer or anti-Semite because of some of the subreddits he created.”

Using anonymity to push political agendas is time-honored, and it is under cover of anonymity that at least one of the major players is leading the charge against the PV Estates Police Department. This culture of secrecy and clandestine hate follow the trajectory of racism in PV Estates as well, where blacks have epithets painted on their homes under cover of darkness and racial insults are scrawled on cars at PV High by nameless vandals.

Who are these people so opposed to the PV Estates Police Department? Why are they so fearful of signing their name at the bottom of the screeds they write? How do they look at themselves in the mirror knowing that for all their keyboard bravado, they still lack the courage of a simple signature?

Answering this question takes us yet one more step along the journey of understanding law enforcement in Palos Verdes Estates. The police report linked below is disturbing in the nth degree. Read it for yourself, and imagine what would have happened if the antagonist had been black, rather than a well-known and infamous resident of PVE itself.

[Link here: Resident’s blatant obstruction_of_law_enforcement during a traffic stop.]

If you read the link, you will doubtless be wondering who this person is. Is it the same bedwetter who wastes countless hours of police time with barking dog complaints? Is it the same person who has launched attack after anonymous attack on cyclists who both live in and ride through the community?

More disturbingly, is this one whackjob all it takes to throw PV law enforcement off its game? A bizarre resident wielding a camera phone? What happened to those staples of law enforcement known as mace, handcuffs, radio, and baton?

The answer is simple: There are two penal codes in PV Estates. One for white, rich, spoiled, angry residents, and one for everyone else.

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