The holidays are a time for celebration— but they also spawn litigation.
The new year consistently brings batches of new lawsuits fueled by holiday revelry that goes wrong or snaps long-strained marriages, according to attorneys and experts.
“Three things are guaranteed: Death, taxes and me bringing a lawsuit based on drinking on New Year’s Eve,” Christopher McGrath, a New York-based personal injury attorney told MarketWatch.
Elizabeth Trendowski, an expert witness retained by plaintiffs and defendants in alcohol-fueled personal injury cases, agrees. She calls the period from the Wednesday before Thanksgiving to New Year’s Eve to Super Bowl Sunday the “triangle” that makes for more than half of her 450 cases across the country.
People are often off to Christmas parties and New Year’s Eve plans when drunk driving makes for disaster. “It couldn’t be more sad,” she told MarketWatch.
The first month of the new year is also traditionally the time that splitting spouses act on the Auld Lang Syne lyrics asking, “Should auld acquaintance be forgot, and never brought to mind?”
“January always seems to be the time people want to start anew and start their lives over again,” said Peter Walzer, a California matrimonial lawyer practicing for 36 years. About 35% to 40% of his cases are filed in January and February, he said.
A twist this year already has divorce lawyers working overtime ahead of their busy season. Federal tax overhauls from the Tax Cuts and Jobs Act are ending the deductibility of alimony payments. As a result some lawyers across the country are scrambling to lock in divorce judgments before the new rules take effect January 1.
Walzer, the current president of the American Academy of Matrimonial Lawyers, says he can’t convince any of his bar association colleagues to help out with organization matters right now. “It’s like ‘call me next year.’”
Of course, it’s not like the holidays are the most gloomiest time of the year for everyone. Many people love the holiday season. For example, 69% of participants in a 2013 Pew Research study said their favorite thing about the holidays was spending time with friends and family.
Meanwhile, research says divorce rates are falling while the National Highway Traffic Safety Administration statistics show alcohol-impaired driving is involved in fewer holiday driving fatalities.
Still, the seasonal spike in lawsuits — or cases filed later, spurred by holiday incidents — reveals how this time of year has a dark side for some. Research shows people hospitalized in late December face increased risks for readmission or death, while another study said Christmas Eve poses a particular heart attack risk for older and sick people. Wallets are also in the line of fire around now; many renters will emerge from the holiday season in debt, according to data.
Drinking and the ‘Dram Shop’
Drunk driving is less of a problem than it was 30 years ago, but there’s still an uptick in alcohol-related traffic crashes around the holidays, according to the NHTSA. Though there’s no comprehensive data on how often those crashes lead to lawsuits, anecdotal evidence suggests the holidays fuel cases.
“You see the increase,” said McGrath, of Sullivan Papain Block McGrath & Cannavo. If there’s some sort of drunk driving arrest with someone hurt, McGrath said it’s a good bet a lawsuit is bound to come out of it for the driver, and possibly even the establishment that supplied the booze.
Bars, restaurants and other alcohol purveyors can be on the hook under so-called Dram Shop Laws. Though the burdens of proof and scopes can vary, 42 states and the U.S. Virgin Island have laws exposing watering holes to legal liability if they serve an intoxicated person who then causes mayhem on the roads or elsewhere, according to the National Conference of State Legislatures.
Juan Carlos Diaz, president of the American Nightlife Association, a trade association, says bars and clubs are well aware of the laws and are increasingly focused on training staff to spot drunken revelers, calm tense situations — and limit their own liability in the process.
“What’s important, they’re trying to do something, instead of not doing anything….Gone are the days of the roadhouse,” Diaz said, citing the 1989 Patrick Swayze cult classic movie that’s spilling over with barroom brawls.
But if alcohol-fueled cases are slowing in this day of ride-sharing, Trendowski, the founder of Dram Shop Forensics, says she’s not seeing it. However, she only sees the cases where things go wrong, she acknowledged.
Her job involves reviewing all sorts of evidence, including reports and depositions, for clues on whether bars served a visibly drunk customer. It’s not always an easy call. “There are times where the bar is very busy and they do communicate with somebody, but they don’t exhibit the behavior until after they leave the bar,” she said.
Trendowski said many cases settle. “I really believe a jury doesn’t want to hear about drunk driving. They just don’t want to hear about the drunk driver and they don’t want to hear about the bar,” she said.
Splitting Marriages
Like personal injury cases, it’s tricky to track the sheer number of divorce cases, which are filed in state courts. But many come around the start of the new year, lawyers told MarketWatch.
The timing is sometimes because parents are playing nice during the holidays for their kids, or sometimes because the proverbial last straws come during a stressful time of year. Other times it’s a calculation to get a clear financial picture for the task of carving up the couple’s money.
“Most people are reacting on emotion and not tactically,” said Walzer, of Walzer Melcher.
For pending divorces, the holidays are especially trying if there are kids and family traditions in the mix, according to Lee Rosenberg of Saltzman Chetkof & Rosenberg in New York. Fights over who gets the kids for what days get heated quick, leaving lawyers to hash out drop-off times to the exact time and location.
“Something’s going to go wrong and it’s going to be fodder for more litigation,” Rosenberg said, later adding, “It becomes a quid pro quo of how bad you can be to the other person, regardless of how it affects the children.”
There’s some extra fuel on the fire this year, with the end of alimony being tax deductible in 2019. The federal tax code change could raise an estimated $6.9 billion for the government. But it also means the end of a tax advantage that’s long been on the books.
“This tax law is the biggest change in family law since I have been practicing,” Walzer said.
Oakland, Calif.-based attorney Deborah Marx said she was burning the candle at both ends herself. “Working is about all I’m doing,” she said late last month. “I’m not doing any work that doesn’t involved these deadlines.”
Accountants are also feeling the burn. A recent survey from the American Institute of Certified Public Accountants on the impact of the Tax Cuts and Jobs Act said over a quarter of surveyed accountants saw more clients trying to wrap up their divorces before 2019.
“It’s put lawyers in a frenzy and courts in a frenzy,” Rosenberg said.
