More Motions to Dismiss Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.

Motion to Dismiss/Sanction Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk  that is not independently viable.  There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim.  For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a.  A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
——————

Update (7/31/14): My co-defendants have now also moved to dismiss.

Dolphins and Lawyers and Baja

SwimmingWithDolphins

Not me. And not from the place we went.

Is there a relationship between swimming with dolphins and lawyering? Why, yes there is, and thank you for asking.

Let me start by saying that this is all about business and keeping the customer happy. Since lawyers are in a service business, the same concept holds true for a law firm as a company that allows you to swim with a dolphin: It isn’t enough that the customer/client be satisfied while the service is being provided, but most importantly, when they walk through your door for the last time.

So last week I took the family down to Cabo San Lucas at the tip of Baja for a vacation. And one of the things we did was, as you may have guessed, swim with dolphins and do exactly what this guy is doing here in the photo.

But that photo isn’t one of us, and comes from another place. The place we went was called Dolphin Discovery in nearby Los Cabos. And instead of leaving with a glow on our faces, we left a bit irritated.

And that is because so much of the event was devoted to smiling for their cameras — of course we weren’t allowed to use ours — and then trying to sell us the pictures for a whopping $180 afterwards.  This being the type of activity that lends itself to folks with some disposable income, some bought a picture or two (or perhaps all the shots).

Instead of this customer leaving delighted, I instead left annoyed. This is, of course, not the only business to focus on the immediate sale.

And what was the alternative path? Sell the pics at the cheapest possible price, so that everyone has them and everyone shares them on Facebook and with friends, and everyone, everyone, everyone knows. And in one of the lower corners, print the name of the company.

The result? Instead of paying big fat commissions to touts to get people in the door, more people would likely come in directly as a result of prior customers doing the marketing for them. This is called a win-win, unless you are the tout losing out on the commission.

Now turn us back to law as a business. Nobody can guarantee that a client will walk out happy at the end. But that is still the objective, because that is what service is all about.

There is no shortage of people that rely on marketing and referrals to bring clients to the door. And on the civil side, those referrals sometimes come at the price of a referral fee if the first lawyer has done some work on the matter.

The better course — the one we should all aspire to — is the matter coming in directly because a prior client was satisfied. And this also means that when the client leaves at the end, it should be on the best possible terms.

Some lawyers will argue to get back every nickel they laid out to advance a case — every xeroxed letter, phone call and subway fare. I suggest you don’t go there. Look at the big picture, recoup the major expenses, and make sure the client is satisfied.

Don’t be like that Mexican dolphin place, that had me walk out the door annoyed. The satisfied customer/client is your best asset.

Power to the People (A Declaration of Independence)

DeclarationIndependence-Trumbull

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.

Today is July 2nd. On this date in 1776 the Continental Congress voted to declare its independence from Great Britain and a new nation was born. John Adams thought that the 2nd of July would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The Declaration of Independence was formally adopted and signed two days later, and it is the 4th that we celebrate. (And it was on the 4th in 1826 that Adams and Thomas Jefferson both passed into the next world.)

But aside from re-publishing that extraordinary document originally crafted by Jefferson, as I do below and I do each year, I wanted to take a moment to discuss tort “reform.” Because it is very much connected to our independence.

The Declaration has, as its heart and sole, a discussion of how King George III seized too many powers. And the colonists believed — and were willing to risk their lives for the principles — that power should more justly reside with the people.

And so you will see, as but one example of “the long train of abuses and usurpations” charged against the British King that forms the Declaration’s bill of particulars, this:

For depriving us in many cases, of the benefit of Trial by Jury:

And in the subsequent Bill of Rights, there are three separate places where rights to a jury are established: In the Seventh Amendment (for civil trials), the Sixth Amendment (for criminal trials) and the Fifth Amendment (grand juries for capital or infamous crimes).

It is clear that the Founders wanted powers related to both civil and criminal fact-finding to reside with the people, and not with any head of state that may be subject to whim, politics or the pressures of the moment.

This tug-of-war over how much power should reside with government and how much with the people exists to this day. Speaking broadly, it is the conservatives who want to see a smaller, less powerful government and liberals a bigger and stronger one.

But oddly enough those principles seem to fall by the wayside in the discussion of tort “reform.” When it comes to that, some conservatives, for reasons that have never been explained to me, want to give various governmental protections and immunities to others so that wrongdoers can’t be effectively hauled before the court for accountability.

This abandonment of principle happens in the pursuit of …what?  I can’t even finish the sentence as I still can’t fathom it, despite having written now on the subject for so many years.

To those conservatives that read this blog, I urge you to re-read our Declaration (and Bill of Rights) and ask yourselves why it is that, for this issue, principles of smaller and less powerful government have fallen by the wayside in favor of granting governmental protections and immunities.

And now, without further ado, Mr. Jefferson and his fellow congressmen:
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IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Soccer, Arguing and Lawyering

BrandiChastain

Brandi Chastain after scoring the winning goal in 1999 Women’s World Cup.

As I follow the World Cup with one eye, I stumbled across a letter to the editor in the New York Times sports section, and it left me scratching my head. What the devil was the writer thinking when he sent this in, and why did the NYT bother to publish it?

Since the letter makes an argument, and this is what lawyers do, I wanted to add my two rupees on what not to do when lawyering.

We start on the futbol soccer pitch with the fact that extra time gets added to the standard 90 minutes to account for delays of the game, such as players taking a dive trying to get the ref to call a penalty. As Geoff Foster from the WSJ puts it:

All too often during matches, seemingly fit men fall to the ground in agony. They scream, wince, pound the grass with their fists and gesture to the sidelines for a stretcher. Some of them clutch a limb as if it was just freed from the jaws of a wood chipper.

But after a few moments, just as the priests arrive to administer last rites, they sit up on the gurney, shake it off, rise to their feet and run back on the field to play some more.

Foster does an analysis of the worst offenders of the flopping game, calling the extra minutes “writhing time.” Personally, I prefer “Flop Time.” Your mileage may vary.

And the issue devolves very quickly to this:  No one but a ref with a watch really knows exactly how much time is left on the clock. The New York Times wrote about this in: In Time Warp of Soccer, It Ain’t Over Till … Who Knows? Apparently, I wasn’t the only one wondering:

Imagine if an N.F.L. coach never knew when to call for the last-second pass, or an N.B.A. star had to guess when to throw up his desperation half-court shot.

Such situations would be unthinkable in other sports, but vagaries of time are the norm in soccer. Games do not end when a clock expires, but only when the referee decides they are over.

Soccer’s elastic definition of time means that no player on the field, no fan in the stands and no announcer on television has any earthly idea as to when the last kick of the ball will come.

(Don’t worry, we’ll get to the lawyering part in a moment. Stay with me here. This time I have a point to make.)

This article didn’t sit well with Thomas Jandl of Washington, who wrote in to the Times in a letter published in yesterday’s sports section. This was the guts of the short letter, with its logical inconsistency:

In baseball, football and even the more free-flowing basketball, coaches prepare and then call certain plays. In soccer, the flow of the game is unpredictable. Players make split-second decisions about their runs, passes, shots or tackles at virtually every moment. As a result, using a stopwatch to determine how much time was wasted or when exactly a game should end makes no sense.

The part about not using a stopwatch –in a game that has a clock — is a complete non-sequitor to comparisons of the game to other sports. It fails the rules of logic. As lawyers, we need logic.

The most common of logical arguments is probably the ancient syllogism. “If this is true, and that is true, then such and such must follow.”

Thus, in a brief, a lawyer might frame the issue with these major and minor premises to lead the court to the obvious answer:

Major premise: According to the statute, the defendant had x days to assert the affirmative defense.

Minor premise: The defendant failed to act within x  days on that affirmative defense.

Therefore the affirmative defense was waived.

But that is not what the writer to the NYT did, which is why it’s worth analyzing. He produced, and the NYT printed, the non-sequitor.

The letter instead, has these concepts:

Major premise: Soccer has a clock with 90 minutes plus extra time.

Minor premise: Soccer is wonderful because the flow of the game is unpredictable.

Therefore a stopwatch makes no sense.

If a judge saw this flow of logic from a lawyer, there is an excellent chance the lawyer would lose whatever argument s/he was trying to make. Now I might not be the world’s best writer, but I know enough to try to make logical arguments and avoid those that make me look silly.

The Times gets a gazillion or two letters each day. Why its editors chose something so logically empty is  beyond me.

File this under Legal Writing.

Amazon’s New Phone, Marketing and Lawyering

AmazonBezosPhoneSo Amazon.com introduced a new phone yesterday. And what does it do? It allows you to point it at some knick-knack you might want to buy and Amazon tells you how much you can buy it for from them.

What is really does, of course, is give yet more information to Amazon and its partners as to your every thought, whim and desire. What does it do for the consumer? Not so much. You can already go to their website, after all, and see what they have.

Here is the problem, which should have been obvious, if it wasn’t already with the big scandal over Edward Snowden and the NSA spying on us: People hate to be spied on.

Google, which started out with a mantra of “Don’t be evil” loves to collect information on you. So too does LinkedIn, which seems to like snooping through your contacts, then using those names to send out spam.

Lawyers should learn from this: Because this is everything you should not do.

Lawyers provide a service; our clients are our mission. When retained, we are supposed to do the job we were hired to do as diligently as possible, not use it as an excuse to find yet more clients. The client comes first.

We’ve seen a few examples in the past, of course. One example was a Chicago criminal defense lawyer using his potential retention by Lindsay Lohan as an excuse to give a press interview. We’ve seen it also with lawyers that place stupid ad damnum clauses in Complaints hoping that they can get their names in the paper.

Except it isn’t about the lawyer. It’s about the client.

So watch Amazon and Google and LinkedIn and learn from them about the stuff you should not be doing.

Order in the Court! (And a Judicial Brawl)

Boxing GlovesIt isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislatures of other countries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.

As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:

Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”

The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.

The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He  refused to waive and asked for a trial date.

Tempers flared with that very short interaction, the two of them charged to the back hallway,  you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”

Here is the short video — I found a version without commercials:

Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)

But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.

The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.

But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.

One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.

What’s more, when the judge uttered the now-(in)famous words, ”If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.

Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.

I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.

My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.

When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).

If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.

The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.

This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not  made in the hallway behind the bench.

Elsewhere:

Judicial thuggery: FL judge assaults public defender (A Public Defender)

The Heat of the Well (Simple Justice)

Florida Judge Allegedly Threatens Public Defender, Challenges Him To A Fight, And Then Attacks Him Outside Courtroom (Jonathan Turley)

Judge Beats Up Public Defender (Above the Law)

 

You want me to violate what law?

imposter

Who’s hiding behind that Google ad?

It isn’t often that someone emails me out of the blue and asks me to commit a misdemeanor. So I guess this wasn’t just another day.

Welcome to another edition of:   outsource your marketing = outsource your ethics. Today, perhaps, we can add to that equation that you might end out surrendering your money, license and liberty as well.

The email came to me from a Utah digital marketing firm called Lead PPC, from its CEO Grant James. I get pitches from marketeers all the time (“first page of Google!!!”) and generally just delete before reading, but I look sometimes to see if there’s any new scam under the sun.

The pitch was simple: The company would use the names of other personal injury attorneys as keywords for Google and my name would pop up in an ad. In other words, they want me to trade on the names of my “competitors” (a/k/a friends and colleagues).  This was the emailed pitch:

By staying away from the expensive $100+ cost per click keywords, we get right to the good stuff that is cheap, targeted, and needs help now.  Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them.

Whoa.  Now I may not always be the sharpest knife in the block  – just ask my kids —  but I do know that trading on the name of someone else is, what we call in legalese, a big, fat, hairy, ugly no-no. This is New York’s Civil Rights Law §50, also known as the right to privacy (and elsewhere, in various forms, the right to publicity):

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

And in Civil Rights Law §51, there is a private right of action, and this includes both compensatory and punitive damages. In other words, I could be sued by the people whose names I’ve appropriated. And unlike other suits against me, this one could actually have merit.

In addition to the prospect of criminal and civil problems, there is also the prospect of action against my license under the Code of Professional Responsibility for false and deceptive conduct (Rule 7.1(a)(1)), implying that the better-known lawyer is associated with my firm (Rule 7.1(c)(2)) and using “hidden computer codes that, if displayed, would violate these Rules” (Rule 7.1(g)).

Grant James - LeadPPC

Grant James, CEO of LeadPPC

Figuring  that my understanding of what he suggested might just, perhaps, be the result of a poorly written email, or maybe that I didn’t understand the technology, I replied to Mr. James seeking clarity:

Hi Grant.

I read through your email and didn’t understand something:

Mostly, people are searching for the names of your top competitors who are advertising on radio, tv, and billboards.  We show up above them on Google and Bing, and they call us instead of them. 

What does this mean?

Simple enough, right? But his response was to make clear that I had it right the first time, that this was a dishonest, misbegotten, bastardization of legal marketing. He responded by giving me the names of prominent Texas trial lawyers he had misappropriated:

Hey. Yeah sorry if this was a little vague or confusing.

An example would be like in Dallas and Houston where we spend most of our budget on terms related to Jim Adler, Brian Loncar, ijustgothit.com, radlaw, and other terms for competitors.

What happens is that people hear a radio commercial and they can’t remember the website, so they search for what they can remember about the lawyer.

So if a guy searches for Brian Loncar, we know that they were most likely in an accident. If we rank for #1-2 on PPC, especially mobile, they click on us and call in.

A prospect typing in the name of a competitor term as opposed to “personal injury lawyer” is a much hotter prospect and further down the buying path. Additionally, these terms are much cheaper and less competitive than the broader terms everyone is bidding on and pushing up the prices.

The strategy works best in larger cities where law firms are advertising heavily on radio, tv, etc.

Texas, we have a problem.

Leaving aside the marketeer for a moment, what lawyer would do such a thing to another? I wanted to know, but since I’m in New York the Google ad words didn’t pop up in my market when I searched.

But, funny enough, I happen to know ace Dallas criminal defense lawyer blogger Mark Bennett. And Mark has written his fair share of postings about shady marketing tactics.

Screen Shot 2014-05-21 at 11.20.02 AM

So he Googalized those more prominent names that Grant James had kindly told me he had misappropriated, and up popped the website (txcarwreck.com) of attorney Ben Abbott in the Google ads.  You can see one of the to the right, where Brian Loncar was Googled. Bennett has screen shots of others.

You will notice that Bennett searched only for the name, and didn’t add lawyer, car accident, or any other popular buzzword.  Just the name. And up pops Ben Abbott’s ad.

As it happens, swiping the name of another person in order to exploit it is also a problem in Texas. It sure looks like Ben Abbott can be sued, and I’m guessing Grant James and his SEO company as well.

Now I’m also going to guess, simply because I fancy myself a kind and beneficent person, that Grant James is utterly ignorant of the law. I think I’m being charitable when I wrote that he probably knows that swiping the names of others to trade on them is a pretty scummy black hat tactic, but that he doesn’t know the legal ramifications. Or he knows but just doesn’t care.

But what would be the excuse of attorney Ben Abbott?

While I know that black hat marketing techniques go on, and have written about them in the past, I never really guessed it would come at me in such a bold and obvious way.

Who, I wanted to know, would he target? So I asked and he responded:

I would need to work together with you to put together a list of 15-20 of the top competitors in NY.  It would be the same guys who advertise on radio, tv, and billboards.

So then I moved the conversation to problems with his scheme, with a nice open-ended query to get his thinking, to see how he could justify this:

I don’t know, Grant, the whole thing about using the names of other lawyers to promote myself doesn’t really sound kosher.

What came back was a very long email about how Google operates and what Google allows and doesn’t allow and Google this and Google that, as if Google was a law of some kind and could be waved in front of judge and jury as a defense.

BenAbbottTexasLawyer-Standing

Ben Abbott, Texas lawyer

To Ben Abbott, who should know better, I asked:

Mr. Abbott:

I’m writing an article about your using the names of other Texas trial lawyers as part of your advertising. This includes Jim Adler and Brian Loncar.

When their names are Googled, your ad pops up. Would you care to comment about why you think this is acceptable marketing?

Thank you.

He hasn’t written back yet. If he does, I may update this.

This is, by the way, part of the Wild West of marketing. A year ago in Wisconsin, under presumably different laws, a court held that stealing someone’s name to use as a hidden advertising keyword might past muster in a civil suit, as in that state (unlike New York) there was apparently no statute. There was no word in Eric Goldman’s Forbes column about the ethical implications. (Update: Under Florida law, this is not an ethics violation. I think is should be.)

But I think the message is pretty clear that, once again my friends, when those marketeers come-a-callin’, you had best remember that they become your agent when you hire them for marketing. Marketing is part of attorney ethics. If you elect to outsource your marketing then you have outsourced your ethics. And reputation. And possibly your bank account and liberty.

It sucks to be a test case.

McDonald’s Coffee Case, 20 years Later — And Why It Is Still Important

Stella Liebeck v. McDonald’s, a/k/a The McDonald’s Hot Coffee Case, continues to be in the news despite the fact it was tried 20 years ago in New Mexico. 20. Years. Ago.

It was in the news two years ago with the documentary Hot Coffee.

And it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis wasn’t enough.  Even I’m bored with the subject, and this type of case fits in my wheelhouse, and is especially important to anyone that tries cases in front of juries.

Was this a frivolous suit because hot coffee is supposed to be hot? Or was it a perfectly reasonable case of an excessively dangerous product (scalding coffee) with an inadequate warning as the jury found? Should the case be better known, and summarized, as Hot v. Scalding?

You know what? My opinion doesn’t really matter. And yet I talk about it every time I pick a jury. Every. Single. Time.

Why? Because people form opinions based on headlines they see in the papers, be they digital or paper. People don’t form opinions based on run-of-the-mill cases because those hear about them. Only the outliers make headlines (which is often compounded by lousy reporting).

And so I bring the subject up, time and again, asking how people feel about this ancient and (in)famous case. I don’t try to change their minds. I don’t try to argue that case. And that is my point.

All cases are different. We all know that intellectually, but it is the emotional part of the brain that lawyers need to worry about. No matter which side of the -v- we happen to be standing on, we want to know– we need to know — if there is some preconceived notion about the overall subject (lawyers, litigants and lawsuits) that the person might have.

If a potential juror is going to have an opinion or emotional reaction (that they will admit to) it is likely that the McDonald’s coffee case will bring it up.

I’m bored with the actual details by now, yet I talk about it all the time. And so should you if you are picking a jury.

It doesn’t matter what you think. It only matters what they think.

A Botched Execution (And A Good Lawsuit?)

lethalinjectionYou’d have to be living under a rock not to know about the botched Oklahoma execution of Clayton Lockett. Oklahoma, in its infinite wisdom, figured it would be just fine to give an experimental combination of drugs to its death row inmate.

It didn’t work out so well, as a vein apparently burst, he didn’t get the first drug that was supposed to knock him out, and he suffered mightily before having a heart attack and dying. Or at least that is what they are claiming.

But the part that really jumped off the pages of the stories was this: When it became evident that Lockett hadn’t been rendered unconscious by the first drug, and was in pain, prison officials lowered the shades between the witnesses and the condemned. They didn’t want anyone to see what The State was doing.

And anytime The State acts in secret, people should be alarmed. Especially when there is absolutely no reason for secrecy.

It is that very secrecy, in fact, that allows elected officials and their prison appointees to claim that the condemned don’t suffer when given various drug cocktails. Because if they suffered, then there would be an Eighth Amendment problem regarding cruel and unusual punishment.

The official timeline — or at least the first iteration of one, as none of the real witnesses in the execution chamber have actually testified — goes like this:

18:23  –  The drug midazolam was administered intravenously.

18:30 —  A doctor said Lockett was still conscious.

18:33  –  Lockett was unconscious, and vecuronium bromide and potassium chloride were administered.

18:42 — The shades for the witnesses were lowered. The official timeline does not say why, but there are accounts elsewhere that Lockett had appeared to be conscious in the previous few minutes.  From the New York Times: “Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.”

18:44 – 18:56  ”The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both,” according to the timeline.  The director of the corrections department then asked whether Lockett had been given enough of the drug combination to kill him, and the doctor said “no.”  ”Is another vein available? And if so, are there enough drugs remaining?” the doctor was asked, according to the timeline. The doctor’s answer to both questions: “No.”

18:56 Execution called off

19:06 Lockett pronounced dead.

Missing from the timeline? Any acknowledgment that Lockett was in pain, contrary to the claimed protocol.

I know, you are shocked, just shocked, that the official timeline whitewashed what the condemned man was doing or trying to say.

Secrecy. It has surrounded the death penalty since we stopped public hangings. It now consists primarily of trying to make an inherently violent act — killing — antiseptic, and therefore palatable to the public. A firing squad would be quicker and more efficient, but then the killing becomes more real.

But the veil of secrecy, I think, can now be broken. Dropping the shades in front of the witnesses won’t work this time, despite wiping it from the official timeline.

Because he suffered in a way that was unintended, as others have  before him, the Estate of Clayton Lockett now has a simple claim for personal injury due to the negligence of prison officials, in addition to a civil rights claim for cruel and unusual punishment. This would be for the 24 minutes between 18:42 – 19:06.

Such a lawsuit, of course, really wouldn’t be about the money. It’s about lifting that veil of secrecy. Because of the suffering, the estate lawyers, if they brought such a suit, would be able to question each and every person in that execution room. And all of the people that ordered the drugs, devised the drug protocol, medically supervised the procedure and delve into all the ways it was tested (or that it wasn’t).

And so much more.

No, it really wouldn’t be about the money at all. It would be about ripping down the veil and using the disinfecting qualities of sunlight so that people can actually see how The State’s machinery of death works, to see what happened and why it happened.

And citizens can see exactly what they voted for and paid for.

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