Latest / Coopers' Code / Uber & Lyft Legal Battles, TikTok Lawyers & Pivotal Amicus Brief ft. Shaana Rahman

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Uber & Lyft Legal Battles, TikTok Lawyers & Pivotal Amicus Brief ft. Shaana Rahman · Coopers' Code

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  Howdy and welcome to the show. Cooper's Code focuses on legal
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  issues and notable practitioners, distilling wisdom
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  so we all achieve the best results for our clients.
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  I'm Miles Cooper and I'm very excited to have Shawna Rahman, a
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  bicycle lawyer, trial lawyer, advocate, friend and all around
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  good person back on the show. Our conversation today explores
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  amicus briefs, rideshare and the general issues that we have in
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  facing day-to-day litigation. I hope you enjoy this show as we
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  go through today. Shahana, thanks for coming back
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  to the show. 1 of the things that I really wanted to talk
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  with you about was amicus briefs.
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  Really. That's such an interesting topic
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  of conversation. When people think to themselves,
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  I I really just want to dial into a podcast and listen to
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  people talk about amicus briefs. But in all seriousness, you had
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  a recent experience with amicus work.
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  I would say you kind of jumped on a grenade willingly, but it,
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  it seemed to have impact and, and so I, I'd love to unpack a
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  little bit about how you decided to get involved in that.
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  So this was my first amicus brief.
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  I didn't decide I don't. I hate to say that.
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  I decided I'm more like said yes without thinking it through.
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  I think that's a better phrase. But yeah.
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  So the bike as have to go bike ocean approached me and said
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  they wanted to engage a lawyer to write an amicus brief on
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  behalf of themselves and a couple of their by coalitions in
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  support of a members lawsuit injury lawsuit against the city
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  of Oakland and I engage is also the wrong word.
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  You know, obviously a nonprofit, no one has money for that kind
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  of stuff, but they wanted to have their voice heard and they
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  wanted someone to tell their story and the and show their
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  support for that. So I said, of course I can do
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  that. I did give the disclosure that
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  I'd never done that before, but I could do it.
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  I had, you know, I could figure it out.
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  And that's how it started. For those who have not done
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  amicus work before, which I would say is 99.9% of the people
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  likely tuning in, how did you approach unpacking this aside
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  from calling me and and having me then back out because it
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  seemed like too much work? You know, you and I did a good
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  job of talking through the issues, which is always the
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  first step. I called a couple of friends of
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  mine who do appellate work and they said it's just like writing
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  a thing. And so because of some examples
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  and it it's, it's, you know, it's motion practice.
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  I mean, you're, you're putting out it's a position page paper,
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  a legal position position paper, I guess, if you will.
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  And you know, there was a lot of motion work done in the
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  underlying case. And I started there reviewing
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  all those materials to drill down on the issue because the
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  case, this was a pretty significant amicus brief because
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  the California Supreme Court was hearing, you know, it's they
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  were hearing an issue that involved a public entity that
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  could affect cycling cases in a kind of a, a large area.
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  So I thought it was important. To unpack that a little bit so
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  people have a frame of reference, do you mind just
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  doing AI Don't know AA minute or two overview of of what the case
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  was about and why this was of significance to riders
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  everywhere, not just the poor rider who was involved in this
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  crash. The case was it's a bicycle
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  crash. Single bike skull hits a pothole
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  and was catastrophically injured.
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  The cyclist was on a training ride for the AIDS life cycle.
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  Not the actual event, but a free event.
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  And that organization requires, like many organizations do their
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  riders to sign a release and waiver of liability before
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  participating even a training ride.
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  And that's what happened to the cyclist signed this release in
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  that release. And no one ever reads these
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  things, obviously in that release.
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  The release was very broad and it released not just a life
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  cycle, but pretty much everybody, including the city of
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  Oakland. Even though the city of Oakland
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  was not participating or sponsoring or doing anything for
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  the training ride because it was on this Pollock Rd.
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  The nonprofit just included the city of Oakland in this release.
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  OK. And so in the trial court level,
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  the City of Oakland filed the MSJ motion for summary
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  judgement. They prevailed on that issue of
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  waiver and used the release to say, look, we can't be
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  responsible for this. He released his liability.
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  That decision went up then to the Court of Appeals who upheld
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  the travel decision. Then they did a petition for
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  review to the Supreme Court. Then the California Supreme
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  Court picked it up on the issue of, of initially the issue was
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  just the outcome from the Court of Appeals, right?
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  And then the issue got much nearer.
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  The court issued some ask for supplemental briefings on
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  several other sort of even smaller, more nuanced areas of
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  the law. And that's where it it ended up.
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  So, you know, this case was significant not just for
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  cyclists, but also for anybody who's doing pretty much any
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  activity where there's a release in a waiver requirement.
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  OK. And this applies to you're
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  picking up a city bike or a, a lift bike and touring around
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  town. You have signed an electronic
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  waiver. You're taking a, a Lime scooter.
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  You signed an electronic waiver that weighs all kinds of people,
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  including not just the company that owns the scooter and also
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  lots of people engaged in, you know, walks or rides or
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  marathons where there's not any releases to gain entry entry to
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  those events. I'm thinking back on just cases
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  off the top of my head where the just within San Francisco there
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  was a a trench jug by the water department where many cyclists
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  got taken down. One of them happened to be on
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  one of the people may not know that Lyft owns the what I call
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  go bikes, the one way bicycles and and there was a rider who
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  suffered a a catastrophic skull fracture and brain injury while
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  on one of those lift bikes. So what you're saying is that
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  electronic waiver could have been used by the city up until
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  this case got decided? Correct, because a lot of these
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  waivers are now including the public entity of the city or
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  county where the the item is being rented.
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  And because everyone loves to be questioned about their legal
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  knowledge live on a podcast. I think it's fair to tell the
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  audience that you have like a list of things you want to talk
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  about today, which you did not share with me.
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  So I feel a little bit like I'm on Jeopardy.
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  So I'm not going to show the witness the exhibit.
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  It's my exhibit. If the witness wants to have
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  exhibits, the witness should have brought exhibits to the
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  deposition. Continue with your question
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  please, Sir. To call it an outline is is a.
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  Is it an outrage to outlines everywhere?
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  It is. It is indeed.
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  I have a couple of Jots on a Google doc based on our
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  conversation last week on things that I thought we should touch
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  on SO. I'm kidding.
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  You know I'm kidding. I know you're kidding.
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  In all seriousness, on the, the legal side of things, I've done
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  some waiver cases and we, we, we had the the spicy burger case
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  years ago where this greasy piece of shit waiver was
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  actually found to be valid by the, the jury.
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  But they also found that the restaurant was grossly negligent
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  because what they did was so gross.
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  That's the lead up to my question, which is I know you
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  can waive negligence, but not gross negligence.
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  All the cities out there that could be grossly negligent
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  related to potholes, the city of Oakland seems like one that
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  could be grossly negligent. Should gross negligence be
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  something that one can find related to Rd. design?
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  And and this is my lead into the question, do you have any sense
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  as to whether that's an Ave. that one can go down to get
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  around a waiver like this? It is.
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  And it was an issue that the planet from this case had raised
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  in the underlying papers. But it was sort of tangentially
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  related to the courts, the Supreme Court's ruling and
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  mentioned because there's a fairly recent case that touched
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  on that issue. But there was not real evidence
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  of the gross negligence that had been developed into the in the
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  underlying case. So in this particular case, I'm
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  not sure how successful that would have been.
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  Understood. To create an argument for gross
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  negligence against a public entity for lack of roadway
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  maintenance. I mean, there are a lot of steps
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  to that. And that's a, that's a pretty
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  tough thing to do. You know, in the city of
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  Oakland, there's a lot of information out there obviously
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  because they had gotten hit a couple of times in the preceding
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  years for very similar banks, right, all from potholes.
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  So I think there was some, there was evidence out there, but I
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  don't know that was the, the really the focus in the end line
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  case. I appreciate you talking about
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  how when you talk to appellate friends that they told you that
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  it's just right in the thing. And the reason I appreciate that
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  is because a lot of our work as lawyers, people get concerned
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  and think it's very technical and and some of it is, but the
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  way you do it is just by doing it.
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  So you did it. I did it.
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  And also, you know, so some of my appellate friends listen to
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  your podcast, so they would be horrified if they heard me say
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  that. That's the advice.
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  But obviously appellate lawyers are much smarter and more
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  eloquent than we are because they are, you know, they like
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  their words. So my friends told me something
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  like that, but but much fancier and better.
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  Understood. But that would be the 1%
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  actually are interested in in the amicus side of things.
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  So thanks for tuning in by the way.
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  One thing that can be done in an amicus brief is to really
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  highlight public policy issues. And the public policy issue in
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  this case was very uniquely tied in with the law.
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  And that doesn't always happen. And so one of the arguments
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  ended up being a public policy argument of not narrowing the
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  scope of a public entity's liabilities and decreasing the
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  ability for folks like cyclists to recover.
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  Right, to not do that because of the public policy interest.
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  Because, you know, as you know, especially here in California,
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  for the last 10 years, the state of California has been spending
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  tons of money trying to promote cycling and walking and green,
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  you know, green forms of transportation, public
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  transport, whatever, trying to get people out of cars.
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  And a lot of that money has trickled down to the the city
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  and county level where cities and counties are all all now
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  have a bike and pedestrian plans.
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  And they are also heavily invested in marketing campaigns
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  to get their citizens out out of the car and on a bike or taking
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  a walk, you know, last mile transit, that kind of thing.
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  And so, you know, the state of California has told people go
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  out in the world, use a bike, walk on the public city streets,
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  do use take a take a lift, a lift scooter, a lime scooter or
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  whatever. And then for the, you know, the
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  flip side of that to occur, which would have been the
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  opposite of if if they had not prevailed in this case, what
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  would have happened was all those people who relied on their
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  city, their county, their state and got encouraged to do these
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  activities then would have no recourse when they got injured
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  by the very city or county or state that told them to do the
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  activity in the 1st place. So I felt that I found that part
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  of the policy would be compelling.
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  And I recognize this next little bit, maybe granular for the
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  people who do not do as many cycling cases.
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  At the risk of going granular though, one of the other issues
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  that is coming up like ones where they determine that, well,
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  if you're riding a bicycle and you are doing it in spandex,
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  there's assumption of the risk, whereas if you are commuting,
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  you are not assuming the risk, and if you're in jorts, people
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  aren't really sure what to do with you at all.
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  I mean, they do, but they just don't say.
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  But yes, well, that was part of this argument here because the
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  city of Oakland spent a lot of time talking about the fact that
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  this was a ride and it was, you know, people who they particular
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  played every question was a very experienced, serious rider.
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  And it was a training ride, which is different than someone
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  riding a bike. And when you look at all the
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  authorities they cite and look at how that plays against, you
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  know, California's marketing campaign about cycling, it
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  doesn't match right. There's no nuance anywhere
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  between someone in a fancy kid all kitted up and someone taking
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  out their their huffy with the fringe coming out of their
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  handlebars. There's no riders should be
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  treated the same. I mean, there are distinctions
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  in the law for close track races, things of that nature.
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  And that law has been evolving, as you know, to make it more and
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  more difficult for a certain segment of the cycling
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  population to recover if they're injured, I'm sure.
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  I think we got to the outcome, but at the risk of of retreading
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  ground it the the work that you did ultimately paid off in some
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  fashion. This is a lead up to a question.
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  How much impact do you think amicus work has in setting the
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  stage properly for a chamber like the Supreme Court of
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  California to be able to make the right decision?
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  I think it's an interesting question and obviously people
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  who do this kind of work all the time could answer this better.
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  But I do think for some issues, like even the people who are
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  listening to this podcast might not really understand the world
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  of cycling, right? And all the levels from the
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  competitive riders to the I'm riding to the grocery store to
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  get a loaf of bread riders. And for this particular case, I
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  think it was really important and helpful for the court to
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  have an understanding of what this community is like and what
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  is happening on the ground in terms of bike and and pedestrian
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  plans and encouragement for people to get out and ride.
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  So I think it was really helpful to set the stage for why
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  bicycling and is is an important piece of the fabric of the new
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  communities that the state is actually quite trying to create.
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  Can you give any sort of estimate as to the amount of
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  time that you put into this? Well, I probably spent about, I
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  don't know, wait 160 hours, maybe 200 hours on it.
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  As a unintended beneficiary in terms of of the work that we do
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  and and the the clients that we work with, I thank you.
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  Well, you are very welcome. The plaintiffs room that handled
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  this case, they had been working on this case for many years and
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  so it was a big fight for them. So it ultimately it was it was a
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  great result for them too. For me, one of the most
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  interesting things was to work with the three different bike
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  entities that I read the brief on behalf of and hear their
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  concerns and their questions and be able to take the things that
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  they told me and distill that in into something that the Supreme
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  Court could really hold on to. So that was pretty powerful, I
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  thought. And I appreciate you, you
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  referencing the work obviously that's being done on behalf of
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  the plaintiff. They're going to do very
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  detailed work. They are the folks who have the
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  most to lose if the outcome has not changed.
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  And it seems like the vantage of the the nonprofit organizations
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  who are advocating for everyday cyclists and how I was thinking
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  a little bit about how just odd some of the these issues are.
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  If if I ride over to the Golden Gate Bridge using the exact same
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  set of roads from my house in kit on a nice bike.
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  Under these arguments, I I would be assuming a risk.
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  So your ability to provide a different vantage, I think in a
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  world that that is nuanced. I was was likely very useful for
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  the Supreme Court. Right.
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  And you know, in this particular case, assumption of the risk was
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  not on the table for the Supreme Court, right.
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  That was part of the underlying motion summary judgment, but
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  they didn't get there yet and have been remanded on that
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  issue. So that is not something that
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  court addressed. And so, you know, that's the
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  second piece of this hurdle because that is where all the
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  law is heading. All these assumption of the risk
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  cases where bicyclists are now, right?
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  You're doing the exact same thing, but your clothing is
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  different, your skill level is different.
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  I think we're going to see some changes in that regard, and I'm
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  not sure how they're going to play out better or worse for
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  cyclists. Are you seeing any sort, any
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  sort of ripple in the fabric or any trend making you feel it
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  might head one way versus another?
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  The trend has not been moving in a very favorable direction.
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  You know, I think we're seeing this scope being just narrowed
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  more, more and more and assumption the risk being
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  applied not just at cycling, but all kinds of things you might
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  not ordinarily see at end. I know I said that I have a few
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  notes open that I I would call barely an outline rather than
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  pick something off of here is is there's a direction that you
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  would like to go? Is something that that has been
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  either bothering you or center stage in terms of of your
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  thoughts on the practice and and cases.
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  This is such an interesting question.
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  Something bothering me like that seems like you've just opened a
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  door. As a funny aside, I'm taking a
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  mediation training class both to get better, better in mediation
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  myself and to train to be a mediator.
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  And you go through all these exercises and there's a lot of,
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  you know, reading about the psychology of negotiation and
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  interacting with people, all that kind of stuff.
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  And one of the exercises was to identify things that caused you
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  to feel hostile and to write them down the list.
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  Is this mediation training or is it therapy?
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  It seemed like a little about, but we were handed, we were
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  given one sheet of paper and I was like, is like, is there
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  more? So that is an open door
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  question. I don't know.
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  There's lots of stuff on my mind, you know, I'm, you know,
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  as always working on a couple of rideshare cases and oh wait,
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  it's always a source of frustration at at what giant
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  corporations can get away with. So one of the things that I, I
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  like about rideshare is I know that when I take rideshare, I am
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  safe. I that they're adequately
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  insured for whatever should happen and, and that their
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  drivers have been fully vetted and that the risk of something
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  bad happening to me or a loved one is, is, is really minimized.
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  Am am I my understanding this correctly?
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  He was trying to poke me in here.
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  Are you just trying? Are you working for Uber right
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  now? Is that?
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  I had a neighbor who who who worked for Uber.
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  Yes. I was trying to explain to a
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  girlfriend of mine who lives in New York, in New York City.
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  Yeah. She tells me she loves, loves
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  lifts. She loves she loves writer.
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  She asked, don't you take it? And I was like, no.
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  And she asked me why, and I told her all the reasons.
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  And she's like, well, OK, but taxis were kind of, they hit
• 21:57
  people, too. And whenever I was like, OK, so
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  my friend who hasn't had a driver's license hasn't driven a
• 22:04
  car in 15 years, maybe 20. She lives in the city.
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  I said, OK, if you wanted to be an Uber driver, you could get
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  out of your computer right now and by tomorrow you could be
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  driving for Uber. She goes, what do you mean?
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  She said, yeah, that's what we do.
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  Go. We take a little test on the
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  Internet. They do a thing.
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  And in a very short period of time, you would just be driving.
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  She's like, that's can't be right.
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  She's like, no one would want me to be their Uber driver.
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  I'm like interesting, interesting.
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  So there's that. I think rideshare conceptually,
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  I think it's a great idea and also one that we used to call a
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  taxi service, but as. You pointed out in our pre call
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  last week, you know, taxis were a very different experience and
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  I think most people who have taken taxis these days don't
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  have kind of the full flavor of what taxis were like pre
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  rideshare. You think we've forgotten?
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  Yeah, I do think so because most taxis now when you get into a
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  taxi, short of of of very specific jurisdictions, they'll
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  be running multiple. It'll be a taxi service, of
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  course. It'll be ride.
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  They'll be run running the Lyft platform, the Uber platform, and
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  flywheel. I was gonna say veterans, but
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  that's that's not a thing anymore.
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  Veterans. Yeah, You're, you're you're
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  dating yourself. Are are you going to hop into a
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  Luxor cab? Luxor Yeah.
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  Well, OK, I don't have nostalgia for taxis.
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  I when I moved to San Francisco in the 90's, the early 90s, it
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  was, it was like taking going to an amusement park, right?
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  You got into it less, less. So you got into a veteran's cab
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  and there are a couple things you knew, OK, you knew going in
• 24:05
  that cab might have remnants of vomiting possible depending on
• 24:13
  the day and time. The thing you knew that the
• 24:15
  driver knew where they would go, right?
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  You didn't have to give the driver unless you were one of
• 24:21
  those people. You didn't have to give the
• 24:23
  driver directions because they're going to take you there,
• 24:26
  right? Or you might have a suggested
• 24:28
  route. I might be one of those people.
• 24:30
  Yeah, OK. You might have a suggestion and
• 24:31
  then you have a fight with it was part of the, you know, the
• 24:34
  experience. And you also knew there was a
• 24:40
  possibility that this was your last act on earth getting into
• 24:45
  this cab, right? And not because the drivers
• 24:49
  didn't know how to drive. It was because they were
• 24:54
  motivated, right? I remember being in a cab and
• 24:59
  going across town and going over Twin, you know, through Twin
• 25:02
  Peaks and the cab getting air over the hills, right?
• 25:07
  That was a good ride because I was in a hurry.
• 25:10
  And the cab, you know, this is back in the day.
• 25:13
  But, you know, so there are certain nuts, but in that
• 25:17
  experience, like taxi drivers, although there wasn't a, you
• 25:21
  know, an elaborate training program back then for taxi
• 25:24
  drivers, they did have to go to a class and get a license and,
• 25:28
  you know, do these things. But there was the the taxi
• 25:33
  drivers who did it professionally or did it full
• 25:36
  time. There's a certain skill set
• 25:39
  there. That was their profession and
• 25:42
  they knew how to do it. And so that's the difference
• 25:46
  now. I mean, it also is the
• 25:49
  difference as taxi gap cats predict grassed and in San
• 25:53
  Francisco, as they put more medallions on the street, said
• 25:55
  there was more cabs. So it's less lucrative because
• 25:58
  back then being a full time cab driver, especially if you had a
• 26:01
  medallion was good work, you know, good paying work.
• 26:05
  And so once that was diluted, it started to open the field to
• 26:10
  drivers who didn't have that same level of skill, right?
• 26:13
  And now I think in a lot of areas, we no longer value skill
• 26:17
  for anything. And so the driver who isn't a
• 26:22
  professional driver is just as good as the driver has been
• 26:25
  driving it professionally or commercially for 30 years.
• 26:27
  We didn't care. So those are the differences to
• 26:30
  me also, you know, all the other things that go along with
• 26:34
  rideshare. Obviously there's the lack of
• 26:37
  sophistication with some of the drivers.
• 26:39
  There's and and, and there are other issues.
• 26:43
  I mean, there's a whole section of filings related to drivers
• 26:50
  whose security backgrounds weren't done in any detailed way
• 26:55
  and they have caused horrific harm to their passengers,
• 27:02
  correct? Here's another difference,
• 27:04
  right? In the days, the heyday of taxi
• 27:06
  cab industries, and I'll speak to what I know, which is, you
• 27:09
  know, San Jose go taxi cabs were a highly regulated industry by
• 27:15
  the city and county, right? They couldn't just put as many
• 27:19
  cabs as they want on the street. There was a set number.
• 27:22
  And when there was a will, you know, people in the city wanted
• 27:26
  more cabs. There was a whole thing, you
• 27:29
  know, it was a big deal. They had to look at it.
• 27:31
  And even that I think at the highest they they released 700
• 27:35
  medallions, right? That's not a lot of cabs.
• 27:38
  And before that it was like 83 or 400.
• 27:41
  And so they regulated in terms of the number of taxis that
• 27:44
  could be on the road in the city.
• 27:48
  They regulated the drivers, right, background checks,
• 27:51
  training, all of those things. And they regulated the industry.
• 27:58
  And that is something that has not happened.
• 28:01
  You know, when rideshare got an Uber came on the scene in, in
• 28:05
  2009, it you know, it was their motto.
• 28:08
  What, what did they say? Like break things or, you know,
• 28:11
  do things and ask permission. Labor, move, break, whatever.
• 28:14
  Move and break. Things.
• 28:16
  Yeah, yeah. I, I, I don't think that was
• 28:18
  Uber, but I think that was the Zuckerberg.
• 28:20
  That was similar, yeah. But it from that moment I was
• 28:25
  looking around, being in the city for all that time and
• 28:27
  thinking, what is like, is no one watching this?
• 28:30
  These are like a bunch of cabs on the street and no one is
• 28:34
  saying anything. How is that OK?
• 28:37
  And then I thought, this is this is never going to last because
• 28:40
  they don't have any insurance. Like, I didn't, I didn't know.
• 28:43
  I didn't know it was going to be a thing.
• 28:46
  Yeah. So it was just interesting how,
• 28:49
  you know, cities dealt with rideshare and the state has
• 28:51
  dealt with rideshare. It is regulated now somewhat.
• 28:56
  But they the number of cars on the road is in no way regulated.
• 29:01
  And that to me is astounding and seems to me to be dramatically
• 29:06
  at odds with what we were talking about earlier, which
• 29:09
  was, you know, the state's interest in moving people out of
• 29:13
  cars, right? Both for, you know, for climate
• 29:19
  reasons and to, to, for green modes of transportation and also
• 29:22
  for people's health. So those things are really, it's
• 29:27
  very interesting to me the support the state have has
• 29:30
  thrown behind rideshare, which seems to be totally in Contra
• 29:35
  mention to all the other messages they're sending out,
• 29:39
  right. These are a little monitoring
• 29:40
  system. You know, there's a few studies
• 29:43
  being done about congestion and injury rates, but it's very hard
• 29:48
  to do it in at work. There's doesn't seem to be,
• 29:51
  there's a lot of will for it. And also you can't get the data
• 29:55
  because it's all secret thing that we forget that we shouldn't
• 29:59
  is that there is a very, very different skill set needed to
• 30:04
  drive a commercial vehicle versus to get in your own car
• 30:08
  and tool around town. Those things are like night and
• 30:11
  day and for a very good reason, right?
• 30:15
  Commercial drivers and Uber, Lyft, rideshare taxi cabs that
• 30:20
  are all commercial drivers, they have an actual higher duty under
• 30:24
  the law to the to their passengers.
• 30:28
  So they actually have to do better at driving than you do in
• 30:32
  your car. That's what the law says
• 30:33
  basically. And so when we move to this
• 30:37
  model where anyone without any skill or expertise in this, in
• 30:42
  this area of commercial driving gets to be a commercial driver,
• 30:46
  I think it's very dangerous element we're introducing to our
• 30:50
  roads and I think we've have seen that in our practices.
• 30:54
  I think that's a a fair observation.
• 30:56
  One of the things I do like to do and, and, and and this
• 31:01
  overlaps a little bit with community and relationships.
• 31:05
  I don't take rideshare all that often.
• 31:09
  When I do take rideshare, rather than pull my phone out and
• 31:15
  scroll e-mail, what have you, I try to engage with ride your
• 31:21
  drivers who who want to be engaged.
• 31:22
  There are some who who very clearly are like I'm here to
• 31:25
  drive and I don't want to talk. One of my favorite questions,
• 31:29
  though, is, you know, is what other work do you do?
• 31:34
  And you'll find wide varieties from I do this on my commute in
• 31:40
  to I do this full time and and I have noticed that there is a
• 31:47
  difference between the drivers who are full time drivers who've
• 31:50
  been doing it a long time, much like a cab driver.
• 31:53
  Absolutely, 100%. And a lot of folks driving
• 31:57
  rideshare are, are former cab drivers or current cab drivers
• 32:00
  for that matter, right. It's very interesting to me how
• 32:05
  tech companies, if you will, you know, giant startup companies
• 32:10
  have changed the narrative over basic things like vehicle
• 32:15
  safety. So the narrative is that if you
• 32:17
  get into a ride share, that's a safe thing to do when there's no
• 32:23
  actual data to support that, right?
• 32:27
  And the data there is, is not parsed out and mostly hidden
• 32:30
  from view and fought over and, and all those things.
• 32:34
  And also this narrative that we saw this a lot with Prop 22
• 32:39
  sponsored by Uber, the Protect Drivers Act, which I think is
• 32:46
  such a misnomer, right? This idea that right, share
• 32:50
  drivers cannot be care classified as employees,
• 32:53
  employees, right? They're independent contractors.
• 32:56
  And this was the whole push, as you know, from rideshare.
• 33:00
  And they created this narrative that was an either or situation,
• 33:05
  right? Either drivers could be
• 33:08
  employees and have the have the rights afforded to employees of
• 33:14
  which there are many right workers comp being a big one.
• 33:19
  If they get injured, the ability to apply for state disability
• 33:23
  for an off work injury, sick time, family medical leave that
• 33:28
  all those benefits right. Either they could be that, or
• 33:33
  they can be independent contractors.
• 33:35
  And rideshare argued independent contractor status is better
• 33:39
  because people can have the freedom to be entrepreneurs and
• 33:43
  run their own businesses. Driving these cars.
• 33:46
  OK, on his face may be fair points, but there's actually a
• 33:51
  third alternative which is never presented to the public right?
• 33:56
  That the rideshare companies could make these drivers actual
• 34:02
  W2 employees, afford their drivers who are doing all the
• 34:07
  work to make these companies exist, afford them those basic
• 34:12
  benefits and elements of being AW2 employee and also give them
• 34:17
  flexible schedules. My perception of what people
• 34:22
  want is at this current fluctuation of of our society,
• 34:31
  people are willing to, they want to pay less and they're willing
• 34:37
  to accept risk for less. Certainly, there is an
• 34:43
  inflection point here, and that's right.
• 34:45
  But the information they're getting to make those kinds of
• 34:49
  decisions doesn't add up. OK.
• 34:54
  So it's only recently these companies are actually
• 34:56
  generating profit, right? After they went public, right?
• 34:59
  For many years, they generated no profit.
• 35:01
  They were, you know, funded by VC money and all that kind of
• 35:05
  stuff and to create a model so that they can get customers and
• 35:09
  eventually put their competition cap errors out of business.
• 35:11
  We all know that, right? And so now they're in the
• 35:14
  business of making money, fine. And so the things they do like
• 35:18
  Prop 22, they suggest to the public that doing this thing by
• 35:23
  keeping drivers independent contractors is actually going to
• 35:25
  be great for the drivers and great for the public because
• 35:27
  it's less expensive for that. OK.
• 35:31
  They are doing the exact same thing in a more recent
• 35:34
  proposition that they are putting out and it's what they
• 35:38
  just did when essentially killed the underinsured motorist
• 35:44
  coverage for passengers and rideshare of their vehicles,
• 35:47
  right? With the same narrative that
• 35:50
  this having Uber and Lyft having to pay these expensive things
• 35:54
  for their business like insurance is really affecting
• 35:57
  the consumer. But there's no evidence that
• 36:01
  providing rideshare companies, these giant behemoth billion
• 36:06
  dollar companies with these breaks is going to translate to
• 36:11
  better or cheaper consumer prices.
• 36:14
  None. And in fact, there's no
• 36:16
  incentive for them to make their prices lower because now they're
• 36:22
  less alternatives. And people are very used to it.
• 36:25
  When you sign up for your promo for Netflix and it was $4.00 a
• 36:28
  month, they're like grace $4.00. Now it's $15.00 a month.
• 36:33
  You still have Netflix. So that's the inflection point.
• 36:37
  We are, we all want cheaper things.
• 36:38
  We want faster things. That's why Amazon has has
• 36:42
  flourished too. But I don't know if that, I
• 36:49
  think the jury's, the proverbial jury's still out on whether or
• 36:51
  not that much makes us better as a society.
• 36:54
  I think there's a lot of evidence that suggests that it
• 36:56
  does not actually. Do you have anything else you
• 36:59
  want to touch on? I would implore all my
• 37:02
  colleagues to stop signing protective orders with corporate
• 37:06
  entities in, in vehicle cases. Like if you have a product
• 37:10
  liability case, there are real issues there and, and that could
• 37:14
  be true, but you should also really carefully construct a
• 37:17
  protective order in those cases. But in these, these are garden
• 37:20
  variety car accidents, right? Not to, you know, discount what
• 37:24
  they are, but like they are not complicated in the in discovery
• 37:28
  we're all looking for is not that complicated.
• 37:31
  It's about the policies and procedures of the corporation,
• 37:34
  how that trickles down to the driver, what the driver did,
• 37:36
  what the company did right standard discovery.
• 37:39
  And they need to be even in these standard discovery
• 37:42
  disputes, there is this drive to keep even the most basic
• 37:45
  information secret. It's like they've been making
• 37:48
  the same arguments for a decade. And one of the arguments was we
• 37:52
  need a protective order because we are in a new and competitive
• 37:56
  cutting edge business, right? And it's like, I know they're
• 38:02
  not new. I was like, when exactly did
• 38:04
  they get on the scene? I was like, I got Uber launched
• 38:07
  in 2009, Lyft in two, 2012. It's like, let's put this in
• 38:11
  perspective. If the first iPhone came out in
• 38:14
  2007, Airbnb came out in 2010, Instagram 2010.
• 38:19
  Like none of this shit is new. It's not new, right?
• 38:25
  There is no more competitive advantage to hiding the ball.
• 38:29
  The take away on this piece is if you have a Lyft or Uber case
• 38:32
  and you're dealing with these types of things, to don't take
• 38:36
  what's put in front of you and be willing to fight on on these
• 38:41
  issues. There are less and less lawyers
• 38:43
  obviously willing to take on these fights, and that's where
• 38:47
  the fight is, right? That's where we are in our
• 38:51
  profession as trial lawyers. That's the inflection point.
• 38:55
  Do we or don't we? Agreed, if you're enjoying what
• 38:58
  we're doing here with Cooper's code, please help us extend our
• 39:00
  reach by giving us a five star review on Apple Podcasts and
• 39:03
  consider sharing an episode with a friend.
• 39:05
  Additionally, we want to know who you want to hear on the
• 39:07
  show. Have an interview suggestion,
• 39:10
  e-mail us at podcast at Cooper's dot law.
• 39:13
  I do want to ask, in the space between the time that you
• 39:16
  mentioned you're taking mediation class and now, which
• 39:20
  was I think about 20 minutes ago, have you gotten any phone
• 39:23
  calls from any mediation services seeking to recruit you?
• 39:29
  No, because you told me. I put my phone on airplane mode,
• 39:31
  so I'm sure. Sure.
• 39:33
  Yeah, phone's blowing up. Blowing up.
• 39:37
  After this episode runs, you're going to be getting calls.
• 39:40
  Yeah, I'm, I think I do. You know who watched the video?
• 39:44
  The the YouTube that I was on with you last time.
• 39:47
  This is who watched it. As as as I tell my kids when
• 39:51
  they ask questions like this, I'm good at this game and I will
• 39:54
  guess like 20 to 30 names that are nowhere.
• 39:57
  No, don't guess when I was hiring a new paralegal and the
• 40:03
  the people I interviewed were all like, oh, I I'm really
• 40:05
  interested in a YouTube video. I was like, I don't know any
• 40:08
  YouTube. What are you talking about this?
• 40:12
  So. So they did their homework.
• 40:14
  They did. They used the Google.
• 40:16
  They found it. Well, that's that's better than
• 40:19
  the interviewee who shows up and doesn't know what line of work
• 40:24
  your firm is in. It is true, but I think I've
• 40:27
  shared a lot about my personal like upbringing in that podcast.
• 40:31
  I don't somehow you got me to talk about myself in a way that
• 40:34
  is not just law, which, you know, I don't usually do.
• 40:37
  And so now all these strangers who I'm interviewing are
• 40:41
  commenting on my personal background and I'm, I don't even
• 40:44
  know how to respond. And also very interested in me
• 40:52
  and at work. And they're so excited.
• 40:55
  I was like, you know, I can't take a compliment at all.
• 40:57
  And they're congratulating me and, and I'm just like, I, it's,
• 41:01
  I'm not, it's not that much like.
• 41:05
  Have you heard of the phrase A? A parasocial relationship.
• 41:08
  No. There's a, a bike influencer up
• 41:12
  in Portland who has a very popular channel and I was
• 41:15
  chatting with him and he, he, he says that because he is seen by
• 41:22
  a lot of people who have people just come up to him always
• 41:24
  riding and start talking to him like they know him intimately.
• 41:29
  And there's a phrase in the world of podcasters and
• 41:33
  influencers and other things that is, is a parasocial
• 41:36
  relationship. And those are the people who
• 41:37
  have seen you, and you don't know them, but they think they
• 41:41
  know you. Yeah, I, I have a little bit of
• 41:43
  that because I, I have a social media presence from my other
• 41:46
  business, you know, and it's funny, I was just going to write
• 41:50
  a thank you letter. I got a letter from a woman who
• 41:52
  watches me on social media and she sent me a bunch of gifts,
• 41:56
  which people do from time to time, even though I tell them
• 41:58
  please don't send me gifts, you know?
• 42:01
  And it's so interesting, you know, someone crocheted me a
• 42:04
  blanket because she wanted to thank me for her showing her how
• 42:10
  to make a cake on, on the Internet.
• 42:12
  You know, it's very, it's very interesting.
• 42:14
  I, I think that, you know, people are lonely and they're
• 42:17
  not, not in that way. We use that phrase like the
• 42:20
  pejorative, but I think there's a real pervasive societal
• 42:24
  loneliness for people. And people are trying to forge
• 42:27
  connections. So they see an influencer, they
• 42:29
  see someone on social media who is nice to them in, in that
• 42:35
  forum, I guess. And there are people are clawing
• 42:40
  for connection. And I think that's the next
• 42:42
  place that we should go in terms of our conversation, in terms
• 42:45
  of, of relationships in the, in the legal community and
• 42:49
  mentoring and real connection as opposed to podcasty connection.
• 42:55
  Before we get there though, because some people didn't
• 42:58
  listen last time. You are famous on Tiktok.
• 43:02
  You're famous on Tiktok for your olive oil.
• 43:04
  I know I'm not famous on Tiktok. I have a Tiktok page where I do
• 43:11
  tik Toky things that are not law because it's my other part of
• 43:15
  me. The whole point of getting this
• 43:18
  farm and making olive oil was so I could have a hobby.
• 43:21
  Well hold on here, you're a retired lawyer who has a
• 43:27
  hobbyist farm and doesn't work anymore.
• 43:29
  Is that that? Did I get that wrong?
• 43:31
  Oh my God, my God. How many times do you have to
• 43:37
  correct people on that? A lot of my friends were the
• 43:40
  worst offenders when I first got this thing.
• 43:43
  They, you know, and because of a woman, there was this rumor that
• 43:47
  I had met like a rich man. And I was like, totally.
• 43:52
  I was like, I don't know how that started.
• 43:55
  Anyway, yes, that's how members get started.
• 43:57
  Everyone assumes that I should be retired and just farming.
• 44:04
  And I guess these lawyers don't understand hobbies.
• 44:08
  You can have a hobby, that's not law.
• 44:12
  I didn't know this to be true until it started.
• 44:15
  So that's my hobby. So in my hobby I do not talk
• 44:17
  about being a lawyer. Don't cross the streams.
• 44:20
  It's just, you know, also no one is very interested.
• 44:24
  That's not true. Actually.
• 44:25
  TikTok has a lot of lawyers on it who have huge followings,
• 44:30
  which I find fascinating because in real life no one wants to
• 44:34
  talk to us. I should not speak of that which
• 44:38
  I do not know. So my little exposure to TikTok
• 44:44
  lawyering seems to be people who have large personalities and are
• 44:51
  talking quite a bit about criminal defense for marijuana.
• 44:56
  Are there other lawyers out there?
• 44:57
  There are. Other lawyers out there, a lot
• 44:59
  of politics, even though they may not be in the political
• 45:03
  realm, a lot of talking about politics, a lot of armchair
• 45:10
  lawyering, you know, lawyers who don't, you know, don't do
• 45:14
  criminal defense or don't do, don't do any of these things,
• 45:16
  You know, reading indictments or any of the things handed, you
• 45:23
  know, things that are happening right now in the in the
• 45:25
  government, you know, and explaining to people what these
• 45:31
  legal documents mean. It's kind of fascinating.
• 45:35
  There's a shift coming for our profession, I think.
• 45:39
  What do you mean by that? I don't know, but I, I feel like
• 45:42
  there's a change a lot of things, but I think our
• 45:46
  profession is going to change over the next few years.
• 45:49
  And you know, law doesn't, doesn't make those big shifts,
• 45:53
  right. It takes a long time for our
• 45:55
  industry to, you know, stop using file cabinets, for
• 46:00
  instance, you know, adopt technology.
• 46:05
  But I, I think there's, we're going to see a lot, a lot more
• 46:08
  changes with technology and with how people interact that's going
• 46:14
  to affect, you know, I think it's going to affect
• 46:16
  interactions with juries. And this I think is a good
• 46:20
  opportunity to pivot into the community side of things.
• 46:23
  And there's a reason why I'm bringing this up.
• 46:25
  They through line with a lot of what I think we're seeing is the
• 46:31
  dehumanization, the automation and the solitary nature of life
• 46:36
  and cheers Miles, the old man ranting about phones.
• 46:40
  When I walked down the street, everyone's eyes are glued to
• 46:45
  their phones and everyone is is over expansive.
• 46:49
  On the bus the other day, I actually did a head count and of
• 46:54
  the 15 people on the bus, 13 people were like this looking
• 46:59
  down at their phones. On the community side, the
• 47:01
  humanization side. And this is an area where I
• 47:03
  think we can be be proactive and and and positive as opposed to
• 47:08
  ranty old man. You have to shake your fist when
• 47:10
  you do this. Get off my lawn.
• 47:13
  Get off my lawn. This goes to the not retired,
• 47:18
  not hobbyist lawyer who, who actually shows up.
• 47:22
  I'm, I'm referring to you in terms of, of still being active
• 47:25
  in the San Francisco community and being at events and getting
• 47:29
  to know lawyers and, and doing the in person thing.
• 47:33
  And so this is the rant. One of the challenges I think
• 47:36
  that we're we're facing right now in the law is we're getting
• 47:39
  more and more automation. More and more people are
• 47:42
  preferring to work from home and there's less drive to engage
• 47:49
  with the human side. Back in my day, would pre zoom
• 47:54
  court appearance back when court call was an option not required.
• 47:59
  And there were a lot of judges who were like, no, you are
• 48:01
  putting your face in my courtroom.
• 48:03
  If you're going to, if you're going to have a thing, you're
• 48:04
  going to be here. And and lawyers had the
• 48:07
  opportunity to learn by seeing each other and interact in
• 48:12
  person in the halls. And there was a lot more.
• 48:15
  The grease of human connection not always pleasurable and at
• 48:20
  the same time a lot more effective in on on the learning
• 48:24
  side and and So what is my rant? My rant is that we need to get
• 48:30
  back to this. Young people today, Yeah, No, I
• 48:34
  was having this conversation with someone, a lawyer the other
• 48:37
  day, I can't remember who about young lawyers, right.
• 48:40
  Because when we came on the scene, you know, we kind of
• 48:43
  faked it initially. We used, we learned on LA law,
• 48:47
  right? I think basically that's our
• 48:48
  genre. And then we would go to court
• 48:52
  with either our bosses or just to, you know, sit there and
• 48:56
  check it out or we'd sit through a two hours case management
• 49:00
  conference hearing, just sit around in the back of the
• 49:03
  courtroom And you heard other lawyers and how they argued.
• 49:07
  And a lot of what we learned was picked up in this way right from
• 49:12
  watching other people. I mean, a lot of what we do is,
• 49:15
  is, I don't want to say performance because that's
• 49:18
  sounds terrible, but public speaking and how we present
• 49:23
  ourselves, I'm sure it's the same for, you know, actors or
• 49:27
  people who work in the theater. It is a lot of adopting or
• 49:31
  looking at other people's styles and taking from and rejecting
• 49:35
  certain things. I think it's very hard to
• 49:38
  develop your speaking style or your style as a lawyer in a
• 49:43
  vacuum without having any models for that, for what appropriate
• 49:47
  behaviour is and in a lot of cases, totally inappropriate
• 49:52
  behavior. So I think it, I think it is
• 49:55
  hard for younger lawyers to learn to model because they're
• 49:59
  not seeing it. And it's very hard, I think to
• 50:02
  model behavior or legal strategy or or legal approaches through
• 50:06
  Zoom because I think those are changing very much too.
• 50:09
  I mean, I know I sit through a lot of depositions now where
• 50:14
  defense lawyers, they're in their homes, they are incredibly
• 50:18
  relaxed and they are not taking the kinds of depositions that I
• 50:24
  remember happening. You know, they're very
• 50:26
  superficial. They're very kind of, I mean, we
• 50:30
  can't say phoning in because that's not a thing anymore, but
• 50:33
  that kind of thing. So I I think modelling is hard
• 50:36
  in these not live interactions for sure and and not not office
• 50:42
  situations. They're not having that office
• 50:43
  environment too, because then you would go hang around your
• 50:46
  friend's office and kind of noodle on cases or whatever.
• 50:51
  I will say that part of the reason I, I wanted to do the
• 50:54
  podcast and, and have conversations like this is to
• 50:59
  make up for the lack of physical connection that that used to
• 51:04
  exist, that lawyers still need to learn.
• 51:08
  And that might be while they're doing dishes, listening to this,
• 51:11
  or it's probably just doing dishes because no one leaves the
• 51:15
  house anymore, right? Fright.
• 51:17
  I'm actually in my my actual office.
• 51:19
  I left the house today, went to the office.
• 51:22
  So which I do every day, every day.
• 51:26
  There is a a silver lining. I think there's a lot more in
• 51:29
  terms of teaching materials now of practical skills that bar
• 51:35
  associations and so on. And so far they're putting on
• 51:38
  that are showing live how to do certain things, how to take
• 51:42
  snippets of a deposition, how to cross examine a witness.
• 51:47
  And I I think that has gotten a lot better and is something that
• 51:50
  could be taught via Zoom. So I think that's hopeful.
• 51:54
  That's a good learning tool for younger lawyers.
• 51:58
  I think the, the other thing that some courts have made
• 52:01
  available that that is really nice is the ability to just zoom
• 52:05
  into a trial. And, and, and what I mean by
• 52:08
  that is there are a lot more cases where I can, I might not
• 52:12
  have time to go all the way up to Marin or across the Bay, but
• 52:19
  I can still catch a cross examination that a friend is
• 52:23
  doing or closing. Because judges are being more
• 52:26
  open to the idea that if we've got the zoom capacity, we might
• 52:30
  as well make it available for people to watch the case.
• 52:33
  Right. Our relationship is as a friend
• 52:37
  of the firm I get I think I get to invite you back when it
• 52:40
  whenever I can. I am disappointed that that
• 52:43
  this, I know we're supposed to do this in person and you do
• 52:49
  actually doing your civil duty of paying attention to jury
• 52:53
  services as opposed to shirking prevented that so.
• 52:57
  Yes, but I got Cutlass. I did not even have to go down
• 53:01
  and appear or anything. So someone else is on a jury?
• 53:06
  Not me. I've always wanted to get on a
• 53:08
  jury, but I I've never served. Have you ever served?
• 53:12
  I have, yeah. Criminal.
• 53:14
  Yes, yeah. How was it?
• 53:19
  Fascinating. Yeah.
• 53:22
  It it was interesting to hear what resonated and what didn't
• 53:28
  resonate in the jury room. Never.
• 53:30
  The things we think is lawyers. Oh, I, I will share one of the,
• 53:35
  the the greatest Playhouse 90 that I saw the, the, the case
• 53:41
  that I was involved in was a felony murder case.
• 53:44
  And the suspects had stolen a car and then robbed what they
• 53:53
  thought was a purse, but turned out to be a bag of lunch.
• 53:57
  And then got lit up by the police and fled streets of San
• 54:00
  Francisco style and then collided with the back of a
• 54:04
  truck. Unfortunately, between them and
• 54:07
  the back of the truck was a human and that person was
• 54:11
  scattered all across the Excelsior.
• 54:14
  So the the prosecutor never showed a photo of what happened
• 54:21
  to the victim during the trial. And in closing, he said, now, if
• 54:27
  you want any idea of the seriousness of this incident
• 54:31
  and, and, and I caution you, these are very difficult
• 54:34
  photographs, but Exhibit 39 are exhibits of what happened to Mr.
• 54:39
  Smith. And if you have a question about
• 54:43
  whether this is serious, whether this deserves the kind of
• 54:46
  justice that I'm asking for, just take a quick look at one of
• 54:51
  the photos of the remains of Mr. Smith.
• 54:54
  But they are very difficult, and I do not recommend it.
• 54:56
  And then he tucked it into the evidence.
• 54:58
  You know, the first thing that all 12 people did in the jury
• 55:02
  room was pull that out. Of course, if they want to know
• 55:06
  then what happened. Yeah.
• 55:09
  It's like a story missing a part.
• 55:11
  Yeah, it was so perfectly done. More of those trial moments
• 55:15
  where I was like, I hope that I have a case where I can do
• 55:18
  something like this. Yeah, because had they seen them
• 55:24
  for 10 days, every single day, right.
• 55:27
  It's yeah. You get immune to that.
• 55:31
  It's interesting. Well Shahana, as always, thank
• 55:34
  you for being here. I I always enjoy our
• 55:35
  conversations and and the banter that goes along with them.
• 55:38
  Sorry that we couldn't do this in person and I'm looking
• 55:40
  forward to the next time when we do.
• 55:42
  Thanks so much for having me Miles, I look forward to
• 55:44
  actually being able to banter more in the future.
• 55:47
  Awesome and thank you for listening today.
• 55:50
  Please e-mail us at podcast at Coopers dot law with questions,
• 55:53
  comments, feedback and suggestions for who we should
• 55:56
  have on the show. Like what you heard?
• 55:59
  Share us with a colleague and leave us a five star review on
• 56:02
  your podcast platform of choice. To all of you doing justice out
• 56:05
  there. Happy hunting.