Passover and the Boston Marathon Bombing

Exterior, Kings County Supreme Court (Brooklyn) — Photo credit, me.

Once again, a confluence of two seemingly unrelated events. On the one hand, today is the first day of Passover. On the other, it is the one year anniversary of the Boston Marathon bombing.

Passover celebrates breaking away from tyranny and bondage and the establishment of freedom and the rule of law. While celebrated by Jews, we recognize its universal symbolism. So too do others, as we see the Ten Commandments displayed in courthouses around the country as an example of one of the first descriptions of written law.

The bombing, by contrast, represents both anarchy and totalitarianism. Anarchy from the acts of violence themselves, and (to the extent news stories are accurate that this was an act of militant Islamism) the use of that anarchy to promote theocracies where religion reigns supreme and freedom is restricted.

I have a place in my heart for the Boston Marathon, having been privileged to run it in 2009 and again in 2012. This year it is run with a still-fresh wound, despite the brave faces many victims wear.

But this will not be the first time a marathon is run in the wake of a terror attack.

In 2001 the NYC Marathon was run just two months after the World Trade Center fell, and the fires were still burning. As we crested the Verazzano Bridge at the one mile mark of the race’s dramatic start, you could see the hole in the downtown skyline.

There were some that didn’t show up to run that year, concerned over reports in the week before the race that a bridge was the next suspected target. Rumors and fear ruled the day.

But 25,000 did show up. And the streets were teeming with people that day for a massive public event for which adequate protection could not be assured. And the reason for the lack of protection was simple, if you want to live in a free society, you can’t “protect” 26 miles of roadway through the streets of New York.

We knew that back then. People with guns or backpacks with bombs could emerge from the crowd of 2 million at any time. Runners and spectators alike had bulls eyes on their chests. But it was important to be there and to celebrate New York and to say that we would not live our lives in fear. Cowering was not an option.

BostonStrongAnd it will be important again next Monday when the 118th Boston Marathon is run. The crowds will be thick and the runners stoked, with each participant — runners, volunteers and spectator alike — tossing caution to the wind to be there. They know that others will be watching them on this great stage.

The police will try to protect parts of the race course, of course, as they do in New York and all major sporting events. But the reality is that the security is a thin veneer. There is always a way in a free society to wage an attack.

Freedom is like that. It is hard to gain, as recent events show in the Middle East and now Ukraine. In biblical times it took us 40 years of wandering in the desert to get there.

It’s easy to become complacent about freedom and to take it for granted when there is no challenge to it.

But when the challenges to freedom come — and terror attacks are certainly such challenges — it feels good to see people willing to put themselves out there to celebrate it, and thereby protect it. Spectators will, quite literally, be manning the barricades.

Cowering is not an option. #BostonStrong

A $9 Billion Punitive Damages Verdict in Actos Drug Trial (How much is too much?)

punishmentWe once again see a whopping punitive damages verdict and need to discuss: Just how much is too much? For the reasons that follow, I think that a ratio of punitive:compensatory damages of 100:1 or greater are sustainable based on current opinions from the Supreme Court.

At issue for the moment is a $9 Billion punitive damage award against Japan’s Takeda Pharmaceutical and Eli Lilly this week. The case concerned the diabetes drug Actos, and the manufacturer’s failure to warn that it increases the chances of bladder cancer. There was also a $1.5M compensatory damage award.

The punitive award spanking was no doubt influenced by the defendants’ destruction of documents. Juries tend to hate it when people destroy important documents.

It isn’t my objective to analyze the details of the trial, which I did not follow, only to go back and try to forecast what the judge might do with the punitive damage award, and more importantly, what the appellate judges will do if the matter doesn’t settle.

But there really isn’t a straight answer. In the most significant Supreme Court ruling on the subject, State Farm v. Campbell, the majority opinion by Justice Kennedy gave three conflicting statements on the subject. He cited first, for instance, to the older case of BMW v. Gore, that:

[W]e concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.

For reference, BMW v.Gore dealt with punitive damages against a car dealer that repainted a new car that had been damaged, but had failed to disclose it. The verdict was $4,000 in compensatory damages. But the jury also awarded $4,000,000 in punitive damages as it was the policy of BMW to do this.

For this purely commercial transaction, the Supreme Court felt that due process was not served by such a large award, as the defendant didn’t have notice of this potentiality. And with that, the court established three guideposts to determine if a punitive award was constitutional or not:

  1. The degree of reprehensibility of the conduct;
  2. The ratio between punitive award and plaintiff’s actual harm, and
  3. The legislative sanctions provided for comparable misconduct.

Now lets return to the court’s State Farm decision, because, as I noted before, there were three seemingly contradictory statements. Having first quoted the 4x amount as being reasonable, Justice Kennedy then went on to write:

[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.

So now Kennedy is at at a 9:1 ratio. But just as Gore was a commercial transaction, so too was State Farm v. Campbell. In that case Campbell caused a terrible auto collision, and State Farm acted in bad faith in defending its insured. At issue was not the personal injuries of the victims, but the contract between State Farm and Campbell.

Perhaps, since a physical injury was not truly at stake in State Farm, or perhaps just to cobble together a majority, Justice Kennedy then went on to make a third comment on the permissible extent of a punitive damage award, knocking out both the 4x and 9x ratios he had previously described:

Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where “a particularly egregious act has resulted in only a small amount of economic damages.”

Following State Farm, it had become accepted wisdom among many that the Supreme Court would only allow a single digit multiplier, notwithstanding that last quote, or perhaps a bigger multiplier in only the smallest of cases.

But I never believed that the “single-digit ratio” was  a real line in the sand. One reason is that the Supremes eventually let stand a 97:1 ratio in Philip Morris v. Williams, a cigarette case with an $821,000 compensatory award and a 97.5M punitive award that went up to the Supreme Court on multiple occasions.

Now some would argue that letting something stand without deciding the issue (SCOTUS granted cert on the case’s third and final trip to the high court and then later dismissed it as improvidently taken) is not the same as affirming a lower court decision.

But here is something else: That 9:1 ratio nonsense from State Farm is confirmed as nonsense by looking at the conduct of  two members of the 6-3 State Farm “single-digit” majority. First, a review of the oral argument the second time Philip Morris v. Williams came before SCOTUS  (p. 30, line 5) finds this statement by Justice Breyer:

…the more severely awful the conduct, the higher the ratio between the damage award and the injury suffered by this victim in court. And if it’s really bad, you’re going to maybe have a hundred times this compensation instead of only ten times or five times. So — we take it into account, the extent of the harm that could be suffered, in deciding what that ratio should be. That means it goes to the evilness of the conduct.

So Justice Breyer seems not to think too much of that 9x single-digit formulation.

And then there is Justice Stevens, also in the 6-3 State Farm majority. When SCOTUS sent Philip Morris back to Oregon for a redetermination of punitive damages based on jury instructions, Justice Stevens dissented. He was also OK letting that 97:1 ratio stand.

Since both Stevens and Breyer were part of the 6-3 State Farm majority, it is clear that there was most definitely not a majority of justices willing to stick to single digit multipliers for a personal injury case.

So what will happen in the Actos litigation? I think that a punitive damage award of 100x or greater is in the cards if the plaintiffs satisfy the court that the conduct was reprehensible (the second guidepost in the BMW v. Gore). And I also think, given the significant document destruction that led to that whopper of an award, that satisfying that element won’t be too difficult.

Assuming that the $1.5M in compensatory damages aren’t touched, I think that ultimately a punitive award of $150M+ is sustainable under current law.

Allen v. Takeda Pharmaceuticals North America Inc., 12-cv-00064.

New York Central Mutual Slammed in Bad Faith (And What it means for you)

Helene Blank

Helene Blank

Her name is Helene Blank and she last appeared on this page ripping into the City’s Corporation Counsel for his incredible hypocrisy in calling our courts inefficient.

She isn’t just a top trial lawyer here in New York, and a frequent lecturer to others. No, she is also something else. She’s pissed. Again.

And she’s got a damn good reason…so without further ado, Helene Blank as guest blogger…

——–

It’s a tale of corporate greed, in all its ugly manifestations, which starts with grave human suffering. And thanks to a federal court decision last week, we share it today in all that ugliness.

We turn the clock back to November 11, 2000, in the Town of Ulysses, New York, when Peggy Horton, a married mother of three and licensed registered practical nurse, was struck by Ralph Wade when he failed to yield at a stop sign.

No one disputes that Wade caused the collision (not an accident). What he did was unfortunate. But what his insurance companies did next to the two of them for almost a decade – and what they almost got away with and could get away with today — is inconceivable. Yet it continues to happen all the time.

Horton underwent six separate surgeries to correct the damage done to her back — starting with a fusion of two spinal levels and progressing to the insertion of hardware due to instability, incisional hernias, hardware removal and additional fusion.

She never returned to work as a nurse. She suffered from depression and post traumatic stress. Even the doctors hired by the insurance company agreed, finding that she suffered from what is known as failed back syndrome and that she would have nothing but a life of pain to look forward to.

Eleven months after the collision, Horton sued Wade.

Wade was insured by New York Central Mutual for $500,000.00. In addition, he had an umbrella policy with his homeowners insurance, Quincy Mutual, for another million. This is where the ugliness comes in.

Despite the fact that both insurers were immediately notified of this lawsuit, the primary insurer (New York Central Mutual) withheld the existence of the excess million for years. Horton, unaware of the extra million, had agreed to accept the 500K in settlement, perhaps recognizing that a personal judgment against Wade would be useless, under the well-known legal theory that you can’t get blood from a stone.

For her massive injuries and inability to work, New York Central offered the piddling sum of $75K.

The irony is that if it hadn’t been for its greed in refusing to offer the primary $500K when it had multiple opportunities, New York Central would have gotten away with hiding the existence of the excess policy. Instead, because of its greed, New York Central not only has to pay its primary policy of $500K, but also has to pay the excess million excess held by Qunicy (plus interest).

The long, sad and shocking  story only came to light when the excess/umbrella carrier brought a law suit in bad faith, against New York Central Mutual in the Northern District of New York. The suit was based on New York Central’s apparent failure to cheat this plaintiff in a timely fashion and settle quickly before the excess was revealed, resulting in it being on the hook for the late-revealed excess million.  See: Qunicy Mututal v.New York Central Mutual

Quincy Mutual showed that, at multiple times, the plaintiff had agreed to accept the $500K in final settlement of her action because at that time, despite being legally entitled to the knowledge of all available insurance — that knowledge was withheld from her lawyers. New York Central fouled up yet again, apparently, as after the excess million was finally revealed, she still gave them a short time to meet the 500K demand.

But this isn’t about the good faith of a plaintiff keeping the settlement door open. It’s about the greed of the insurance company. Perhaps the insurance carrier thought that, if the litigation was delayed long enough and Horton suffered more due to her inability to work, it could strike a better deal.

U.S. Magistrate Judge David Peebles found New York Central had acted in “gross disregard” of the excess carrier’s interest when it stuck to its $75K settlement offer and lost opportunities to settle with Horton.

The real outrage for all consumers is that you could not open up a settlement, which is induced by the insurance company, if you learned later that there was in fact more coverage.

Wade — the negligent driver that started it all —  was put to the expense and worry for years that his personal assets might be in jeopardy because all the experts agreed that Horton’s losses well exceeded his available coverage. He was forced to hire private counsel to protect him because his insurance companies were not keeping their part of the contracts that he had bought and paid for.

Both the plaintiff and the defendant lost here. But the insurance companies did not. They kept their money for years longer than they ever should have been allowed to, dragging the parties through the court system for almost a decade before they resolved this matter.

New York Central Mutual continued to use the money without a care towards their statutory obligation to negotiate in good faith to protect their insured.

So it’s time that victims like Peggy Horton get the right from Albany to open up a settlement if you learn after you accept what you were mislead into believing was all the available insurance when in fact it wasn’t.

This unbridled corporate greed has to end. Insurance companies should not be allowed to cause additional harm to injured victims, to their insureds, and needlessly keep un-winnable litigation going for years and years without any recourse by the people they harm.

We all lose when this happens – our courts’ limited resources are clogged up with cases that should be resolved, victims who can’t work, who need the money to live are kept waiting forever and dragged through the system for no reason, and the people who paid their hard earned money to protect themselves with insurance are entitled to have the contract they paid for honored.

 

Ribbeck Law Bench Slapped Over Malaysian Aircraft Disappearance; Threatened with Sanctions

RibbeckLawFirm-714660Chicago based Ribbeck Law was sharply bench slapped yesterday and threatened with sanctions by Cook County Judge Kathy Flanagan over the motion it filed regarding missing Malaysian Airlines Flight 370. The motion had allegedly been made to identify parties to a potential lawsuit that it intends to file in the United States.

Noting that similar Ribbeck motions had been rejected previously regarding air crashes in San Francisco and Laos, Judge Flanagan was not kind to Ribbeck. Via the Chicago Tribune:

“Despite these orders, the same law firm has proceeded, yet again, with the filing of the (Malaysia crash) petition, knowing full well there is no basis to do so,” Flanagan wrote.

The judge said she “will impose sanctions” if Ribbeck Law continues to make such filings.

While the firm claims it “expects” to represent half the victims, this seems (to me) to mere huckstering and puffery to obtain clients. The basis of my opinion? Repeat conduct.

We start with this, from the Tribune, regarding the missing Malaysian plane:

The first petition, filed March 25, named as a plaintiff Januari Siregar, who was described as the father of missing passenger Firman Chandra Siregar, 24.

But the plaintiff has turned out to be an uncle at odds with the rest of the family, and a spokesman for Siregar’s real father told the Tribune in an email Monday that he had not authorized Ribbeck Law to take legal action in Chicago.

From there we turn to the fact that the firm has put out press releases regarding its filing. Why put out press releases? As a way of trying to get a message to other victims that says, “Hey! We’re already handling this case, why not come to us?”

And from there we roll back further to last year when the National Transportation Safety Board reported the Ribbeck firm, in connection with the crash landing of Asiana Flight 214 in San Francisco, to the agency that regulates attorneys for further investigation of its online communications and in-person meetings with passengers. This was, presumably, referring to its disciplinary commission.

According to this Associated Press articleRibbeck was the only firm that warranted such referral (as of the time it was written). The referral came because because the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180.”

I have also used this blog to present evidence of Ribbeck violating both a federal 45-day anti-solicitation law for aviation crashes as well as New York’s 30-day anti-solicitation rule for personal injury matters. The firm, for example, set up a website  and ran Google ads for the purpose of soliciting victims from the crash of Continental Airlines 3407 in Buffalo in February 2009. The contact person was attorney Monica Kelly. Other firms had also erred by doing this, as I noted in a February 16, 2009, posting.

A week later I followed up, and it wasn’t pretty for the firm. All the other firms had yanked down their ads, having been caught doing what they shouldn’t. Did Ribbeck? See: Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims?

And there is much more. From the Chicago Tribune two days ago:

In a recent commission action that is public, however, Kelly was recommended for censure last month for allegedly continuing to try to represent a survivor of a 2009 Turkish Airlines crash in the Netherlands that killed nine passengers and crew. The survivor had sent a letter terminating the relationship, records show. Kelly has appealed the decision.

According to commission records, Kelly also was accused of improperly soliciting that victim, who walked away from the crash but later learned he’d suffered a broken back and other injuries. The man testified that four people came to his home in 2009 as he was recuperating in bed, set up a projector and pitched him on Ribbeck’s prowess as an aviation litigator, according to the records. In its written ruling, the panel said there was not enough evidence to sustain those charges.

In 2008, Kelly’s brother and partner in the firm, Manuel von Ribbeck, was cited while working for another firm he allegedly posed as a Red Cross worker when he approached a man who’d lost his wife and daughter in a plane crash in the Bahamas.

The man alleged von Ribbeck invited him to a nearby hotel, where a projector had been set up and literature about the firm he was working for was passed out. The man told his lawyer, John Ruiz of Miami, who later filed a complaint with the disciplinary commission.

James Healy-Pratt, from London-based StewartsLaw, which is also dealing with these issues, gave me his thoughts on yesterday’s order threatening Ribbeck, given the fact that the airliner is still missing and that such lawsuits are often kicked out of US courts. He said he was:

surprised and confused with the premature legal activity in Chicago State Court. This was especially so, given that the airliner is still missing to this day, and the public fact that some 10 years of US Federal Court decisions have kicked out real lawsuits, on forum non conveniens motions, in foreign air disaster cases just like MH370. What was not surprising was the swift, decisive, and no-nonsense response of the Chicago State Court in dismissing the baseless lawyering, and promising sanctions for any repeat performances. This was an unwelcome and insensitive distraction for many of the families of MH370 at a very difficult time.

Other aviation lawyers are also outraged.  From this Reuters article:

Several U.S. aviation lawyers and experts called the Ribbeck filing premature and a publicity stunt, since the details of the plane’s disappearance were still largely unknown.

Justin Green, a lawyer with competitor aviation law firm Kreindler & Kreindler, said the filing was “nothing short of outrageous.”

“Without plane wreckage, victims’ bodies and any substantial evidence of cause or potential motive, there is simply no way to determine liability at this point in the investigation, and any legal counsel should recognize that,” he said in a statement on Monday.

And Robert Clifford, who also litigates aviation disasters, had last week predicted Ribbeck’s motion in the missing Malaysia case would be tossed out of court. He told Inside Counsel the filing was “grossly premature and without foundation.” He also described it as a “publicity stunt.”

There is a big downside to putting out press releases, filing frivolous motions to garner press attention and using the web to solicit clients in violation of federal and state rules. And that downside is that it may pique the interest of others who have strong opinions on ethics.  It isn’t only victims and their families that are watching.

 

Knicks and Dolan to Be Sued in Class Action?

Blame DolanIt isn’t often that you see the Chairman of a company acknowledge that he doesn’t know his company’s business. But that, it seems, is what James Dolan has done.

And now as a result, rumors are swirling around New York’s legal community about a potential shareholder class action lawsuit.

If you aren’t from New York, you might not know that Dolan’s father, Charles Dolan, is the billionaire founder of Cablevision and HBO. Cablevision owned the NY Knicks before being spun off in 2010 as The Madison Square Garden Company. And the MSG Company owns the Knicks (as well as the Rangers, Madison Square Garden and MSG Networks). 

Both Cablesvision (CVC) and MSG Co. (MSG) are publicly traded, which is to say, legally accountable to their shareholders.

Now Charles’s son James has been running the Knicks for close to two decades, during which the team has no championships, much misery, and one lost sexual harassment lawsuit. Through the years he’s said little to nothing publicly, sometimes going years between press conferences.

The times of saying little have apparently changed, however, as Dolan has turned into a chatterbox with his recent introduction of Phil Jackson as the team’s latest savior.

Of course, when someone who hasn’t been giving interviews for years suddenly opens his mouth, it might be wise to get a little practice first. Dolan didn’t, as he apparently spoke the truth when he said:

“That I don’t know basketball.”

Yet he’s running the team and still holds the title of Executive Chairman.

Now let  us ruminate on that concept for a moment.  The guy who runs a pro basketball team, that is publicly owned, admits that for nearly two decades he doesn’t know  basketball. And lest you think it was an off the cuff joke, the Knicks’ performance over those years back that statement up. The team’s front office is ranked dead last by ESPN.

And then he goes on to say that in two hours with Phil Jackson, the Zen Master taught him basketball. So, will any of the protesting fans contact counsel (not me) regarding a class action lawsuit? Well, they might try, but they need to be a deceived shareholder also.

Knick fans are pissed. A group calling  itself Knick Fans 4 Life, has set up a Facebook page to organize its activities (with 2,658 likes and growing). Part of its mission statement regards Dolan’s failure to allow knowledgeable basketball people the autonomy/power to make basketball related decisions.

Of course, today is April Fool’s Day, and long-time readers know I have, shall we say, a bit of a history with running April Fools gags (SCOTUS and fantasy baseball, official white house law blogger, and more).

So the question the reader might ask: Are today’s rumor of a shareholder class action suit real or did Turkewitz make it up?

And the answer: Does it matter?

Yup. Today is Opening Day

Mets LogoAs the saying goes, hope springs eternal in the hearts of baseball fans everywhere on opening day. For today, we sit in first place, having lost no games. And a crocus has popped up in the garden.

What will tomorrow bring? Know ones knows. Spring is about hopes and dreams, and for the moment we will leave it at that.

But here’s a link to past posts in this blog on baseball.

We’re talking baseball

The Whiz Kids had won it,
Bobby Thomson had done it,
And Yogi read the comics all the while.
Rock ‘n roll was being born,
Marijuana, we would scorn,
So down on the corner,
The national past-time went on trial.

We’re talkin’ baseball!
Kluszewski, Campanella.
Talkin’ baseball!
The Man and Bobby Feller.
The Scooter, the Barber, and the Newc,
They knew ‘em all from Boston to Dubuque.
Especially Willie, Mickey, and the Duke.

NJ Files Ethics Complaint Against Rakofsky (And Why It’s Important to You)

Internet_dogThe New Jersey Office of Attorney Ethics has filed a Complaint for misconduct against Joseph Rakofsky. It’s dated December 16, 2013, but hasn’t been previously reported.

There are two main issues in the Complaint. The first deals with the way he described his prior legal experience in web site advertisements. The second with the way he sought business in states where he isn’t admitted to practice law.

For the reasons below, I think this is a pretty important case to follow that affects all lawyers, regardless of whether we advertise or not.

But first, a very fast primer for those new to the Rakofsky saga: He was a recently admitted New Jersey attorney advertising his services in New York and other states, claiming vast experience. He then went down to Washington D.C. to try his very first case — a murder trial.

He didn’t do well, with the judge declaring a mistrial part way through citing, among other things, his lack of competence.

The Washington Post picked up the story of the trial, and then bloggers picked up the WashPo story and added more, regarding (among other things) the subject of his advertising and its relationship to his actual legal experience. Then he committed career suicide by suing a boatload of bloggers for defamation, including me, in a case quickly dubbed by Scott Greenfield as Rakofsky v. The Internet.

He then amended the suit to add those that skewered him for starting the suit. The case was finally dismissed last year.

Primer over. Read those links if you want more (or some of the 101 links here), as it’s time to turn to the nuts and bolts of the ethics complaint and his response. But I really only want to touch on one issue, and will leave the rest for others, as I am local counsel to many of the people sued. What you get here today, therefore, is mostly just a few facts and only limited opinions.

The first of the two subjects the ethics complaint touches on is the way he advertised himself, among many other claims, as having:

worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment.

And the problem identified by the Office of Attorney Ethics is that he had barely any experience at all and inflated the importance of brief stints at a few firms, some no more than a few months long. The Complaint maintains that this was misleading advertising. In his answer to the Complaint, Rakofsky states that one of the mitigating circumstances for his conduct was that he was “young and inexperienced.”

The second issue had to do with his advertising his services in Washington D.C. and New York (and Connecticut, though that isn’t cited in the Complaint), even though he’s not admitted in those states. That is a big no-no. His defense, culled from his answer, is that he was a partner of some type with Sherlock Grigsby in Washington D.C., who was local counsel to the murder trial, and with Richard Borzouye in New York, who was local counsel here as Rakofsky sought pro hac vice admissions in several matters.

The exact nature of those relationships is described by Rakofsky’s counsel in the answer as “partners in that they shared expenses and referrals of cases providing access to other jurisdictions.” This, he seems to argue, lets him advertise that he has an office for the practice of law in other states. Rakofsky’s counsel asserts, in fact, that “This was intentionally his business model.”

Now there is a lot of meat and potatoes for others to analyze within those documents — competence, partnerships, advertising, solicitation, unlicensed practice of law and more — but this is the part that I wanted to discuss: When these twin issues of misleading advertising and practicing law outside his own jurisdiction were brought to the attention of the New York judge that heard the motions to dismiss in our defamation case, he rejected it all. He called it, quite charitably, mere “puffery” and moved on. (See Transcript 4.8.13, at page 38-40.)

Other judges might have been livid and lowered the boom on him, not only sanctioning him but referring him to the District Attorney for potential prosecution regarding the practice of law without a license. I think most people believe he got off very easy.

There will be a hearing in New Jersey at some point in the future on the ethics charges, though it’s not yet scheduled. My understanding is that such hearings are open to the public. The Complaint and answer in this matter are likewise public and I’ve provided them at the bottom of this post.

New Jersey is, therefore, very much unlike New York, where most disciplinary matters are kept hush-hush. Attorney Dominic Barbara, for example, infamously racked up nine Letters of Caution, nine Admonitions, and two Advisements without the public knowing, before finally being suspended. But it was only then, at the time of suspension, that all those other sanctions came to light.

New York and New Jersey couldn’t be more different, it appears, in how they handle ethics complaints.

The issue of lawyers exaggerating their experience in a misleading way has percolated among many law bloggers, often summed up by the now-ancient (1993) New Yorker cartoon that I used as art work above, “On the internet, nobody knows you’re a dog.”

The instances of ethics committees trying to hold lawyers accountable for internet advertising are few and far between, and it’s clear that the attitudes of ethics panels will differ between states. While I obviously have a personal interest at stake, I can’t help but think that an objective viewer will find some pretty important lessons that emerge when the smoke has cleared, and possibly new case law.

The matter deserves to be watched — not to kick Rakofsky again — but to see how a state ethics committee will handle issues of misleading advertising on the internet. While the standard of what constitutes misleading is no different than a dead-tree Yellow Pages ad, the reality is that vastly more information can be put up on a website. And that means greater opportunity to “massage” a biography, and greater ease for lawyers to advertise their existence in jurisdictions where they aren’t admitted to practice.

The ultimate decision in this ethics case will matter to to us all. Because even if you don’t advertise, our collective reputation as attorneys is affected by those that do.

The Office of Attorney Ethics Complaint is here:ComplaintAndExhibits (December 16, 2013)

Rakofsky’s Answer is here: Answer Rakofsky (January 27, 2014)

Court: No, You Can’t Have That YouTube Video

YouTubeAnother social media case. This time, instead of the keys to a Facebook account being sought, it is a YouTube video that had been pulled down or hidden. And the video subject matter involves drinking, smoking, shooting a gun and cursing, among other things.

Is this stuff relevant to the lawsuit such that it need be disclosed?

The case of Reid v. Soults starts with tragedy, as 26-year-old Robert Reid falls off an ATV and suffers a traumatic head injury. Off he goes to see the defendant doctors for treatment.

A medical malpractice suit ensues as the young man dies, premised on a delay in treatment for cerebral edema.  As with every other medical malpractice case, obviously no claim is made for the injuries suffered before the patient came into contact with the defendants.

In this case, there is a YouTube video called “Rob Reid Raw and Uncut” that was placed online by non-party Thomas Reid, Jr. (brother of Rob). It showed,  according to the defendants, “the decedent drinking, smoking, and using guns,” all of which preceded the accident and alleged malpractice. That video was then taken down or made private.

Coming as a shock to absolutely no one, the defendants wanted an authorization for the YouTube account of the non-party, bringing up an interesting issue as to whether such discovery should be entertained.

The plaintiff, of course, countered that the only reason the defendants wanted the video was so that they could besmirch the character of the decedent in the hopes that the jury wouldn’t like him, and therefore ignore issues of malpractice.

In other words, the plaintiff wants the trial to focus on the doctors. The defendants want the trial to focus on the conduct of the decedent before any accident even occurred, and are looking for any hook to make it relevant.

The issue for the court: Could the requested discovery be relevant to the issues of pecuniary loss and life expectancy, which are at issue in a wrongful death case, such that it would then make it discoverable?

Back in 2011 when a lower court told a different plaintiff to cough up all Facebook data for a similar request for social media records, the appellate division (First Department) stopped the practice dead in its tracks and forced the lower court to do an in camera review.

The problem here for the courts is that, with the explosive creation of new potential evidence due to a variety of social media, the courts could be swamped by such requests, and each request could contain mountains of postings, private messages, photographs and videos.

Last year, Judge Joseph Maltese, sitting as a trial judge in Staten Island, warned of the problem of defense fishing expeditions through the lives of plaintiffs and the tsunami of data:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

The appellate court in the Reid matter told the lower court to review the video. And Judge Joan Lefkowitz, who sees many of the medical malpractice cases in Westchester, did just that. And she found it badly wanting in the relevancy department, giving the defendants a big fat no in response to their attempts.

A final note: While the standard here is that the party making the request must show a “factual predicate” to get access to the records, the exceptionally burdensome task that will befall the courts in doing the reviews  of what could be, in some cases, mountains of records, means that if such requests are not well-documented, the request should be doomed.

The vast majority of such requests I have sheen so far are simply fishing expeditions. Courts are not going to place themselves in the position of looking for a minnow in an ocean on behalf of the defendants.

Note: On my request, plaintiff’s counsel Anthony Pirrotti, Jr. —  a frequent lecturer to other trial lawyers —  provided me with some of the background, via one of the briefs.

Judicial Hellholes (About That Motherf*ckin’ Post…)

Judicial HellholesLast Friday I put up a story about a potential juror that, upon hearing the case dealt with a slip and fall, said to the plaintiff’s attorney during jury selection, “You motherfucker.”

I had three reasons for putting up that guest blog by “M.J.” First, it was funny.

Second, it showed how a talented attorney could make lemonade from lemons, as the few jurors left in the room after the majority made a run for the door were those most likely to listen fairly and objectively.

But the third reason was the most important. All too often we hear bleating from the bleachers — those who don’t actually try cases but fashion themselves pundits on the subject — about how easy it is to manipulate juries, or how the jury system is skewed in favor of plaintiffs due to the sympathy factor.

One outfit, the American Tort Reform Foundation, annually publishes a report on “judicial hellholes.” No, it isn’t an empirical study. They simply interview attorneys for corporations and ask them which places they wouldn’t want to be sued in.

But you wouldn’t know that by the way the press annually reports on the report as if it was a real study. Let’s face it, many members of the press are lazy and simply refashion press releases into articles.

You want a judicial hellhole? Then look at potential jurors who aren’t even interested in the facts, as they have already decided that the cause of the problem is not what caused the injury, but the lawyer that sought the justice.

The marketing folks learned a long time ago that propaganda often works. The job of the propaganda victims is to expose it and hopefully educate others. Thus, over at the PopTort, they once mockingly wrote of the report:

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out. You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers. Frankly, it gives me goose bumps. [much more at the link]

Sometimes we succeed in our education. Adam Liptak at the New York Times wrote about the judicial hellholes report that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

Since the tort “reformers” never stop, it’s worth noting that there are, in fact, judicial hellholes out there. Anyone that has ever stepped into the well of a courtroom and engaged in jury selection will have war stories to tell about it, albeit not quite as blunt and funny as the one “M.J.” shared with me last week.

 

When a Juror Calls You a Motherf*cker

Sadly, “M.J.”  didn’t want to attach his name to this story in public.  But I assure you it comes from a prominent top notch NY trial attorney, and is very much a first person account of jury selection.

————————————

I picked in Nassau a couple of years ago on a trip and fall.  I stood up and asked the panel whether there was anyone who took issue with the case from the outset simply by virtue of the fact that I represented someone in a trip and fall accident where they were claiming injuries.

A pleasant looking 40-ish year old woman raised her hand and said “You motherfucker.”

I started laughing and said “I’m sorry, what?”  “You motherfucker.  I’m so sick and tired of you lawyers suing everyone for x,y,z…”

This went on for about 3-4 minutes and then I asked her to come outside and we saw the clerk.  I told the clerk “This nice lady feels I’m a motherfucker and can’t judge my case fairly.”

The clerk sent her to a murder trial panel.

I went back into the room and asked the panel “Who else here thinks I’m a motherfucker?”  All but five hands went up and I let them all go.

My adversary turned to me and said “Why don’t we let these five jurors go and start fresh?”  I said “no, these five people don’t think I’m a motherfucker – I’m keeping them,” to which my adversary responded “You motherfucker.”

Update: There were multiple reasons I put up this war-story post, and here they are.

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