OK, the Rakofsky v. Internet decision is in, and the motions to dismiss were all granted. The motion for sanctions was denied. (Your familiarity with the facts will be assumed.) You can read a variety of opinions on the subject here: Simple Justice, Techdirt, Popehat, Lawyernomics, Philly Law Blog, My Shingle.

But I’m not writing to rehash the opinion (Here, if you want to read it). I’m writing instead because of the bizarre scenario that occurred where I wore three different hats. And to give my thoughts on standing my ground in this fight.

First I was a blogger that mentioned Rakofsky in a post about attorney advertising.

Then I was a defamation defendant telling him to go shit in a hat after he sued me for stating my opinion, along with a gazillion others.

And then I was local counsel for 35 defendants (16 authors). Almost all of them were highly opinionated attorneys, had law blogs, and knew perfectly well how to stand on their own two feet in the well of the courtroom. (Client list) There wasn’t a flinching fawn anywhere in this group.

I took the gig as local counsel because I assumed it would be easy. The case clearly had no merit, would need a simple motion to dismiss, and  **poof** it would be gone. I figured six months, tops, and First Amendment guru Marc Randazza was going to do all the heavy lifting as our pro hac vice counsel while I worried about local procedure on my home court.

Now lawyers working either on contingency or for a flat fee make those kinds of calls all the time, balancing the time they think they will invest in a matter against the value gained. But this took two years, confounding all expectations, and required a lot of extra time with some pretty sharp minds looking on. While I’ve had high profile cases before — including one that hit 60 Minutes some years back — I didn’t have blogging lawyers as clients and a profusion of popcorn eating armchair pundits looking on and reading the filings.

Most readers only know me through this blog, not by watching the actual practice of law. I have a separate website for my law practice (which I still hate), and I do that on purpose.  The contents over here are opinion and news, and the contents over there are a digital brochure for lawyering. I rarely link to the website, or even mention it, and it’s seldom visited relative to this blog’s traffic. People here don’t watch me practice law.

But everything was now different as I became a crazy cocktail of blogger, defendant and lawyer — shaken (not stirred) together. And folks were watching.

Given that blogger/defendant/lawyer brew , it puts me in a good position to shed some light on why this took two years, as some have criticized New York’s judiciary system for the delay. This is the short version of the procedural morass — including plaintiffs’ counsel quitting and our first judge retiring:

• We had jurisdictional failures with almost all the defendants on the original 72 page complaint;
• We had an 82-page amended complaint almost immediately with new parties, with yet more jurisdictional failures;
• We had opposition to a simple pro hac vice application;
• We had the plaintiffs trying to take papers from a motion to be relieved as counsel, altering them and trying to submit them in another motion;
• We had plaintiffs’ counsel quit soon after the suit was started — and while the individual plaintiff could proceed on his own, his corporation was required by state law to have counsel;
• Plaintiffs sought and obtained a stay so they could find that new counsel;
• We had multiple attempts by plaintiffs to modify the stay they had requested, so that only they could file papers, including attempts to add new parties and amend the complaint a second time, with a 268 page, 1,223-paragraph opus ;
• We had our judge extend the stay, and then retire;
• We had the matter re-assigned to a new judge that was swamped with new cases that he had to dig out from under;
• We had an extraordinary number of defendants all making motions.

I know that this seems like a lot, but it really is the short version.  It should have been simple, but it wasn’t. That sucks for those involved, but really, what were the odds that the plaintiffs’ lawyer would quit and then the judge would retire? Those were both biggies.

Is it possible the case could go on further with an appeal? I suppose it is, but as pointed out elsewhere, the judge was quite charitable toward Rakofsky by not sanctioning him, perhaps believing he’d been punished enough with the scathing online commentary, albeit much of it brought on by his own conduct.

But appellate judges might not be as dismissive as the trial court was of his having held himself out as a New York lawyer and putting a New York law office on his letterhead when he’s not admitted here. Leaving aside the cost of an appeal, there is much to lose by having appellate judges look at the conduct that many were already criticizing.

I gave up long ago trying to make predictions about this case, so I won’t make any here about whether it’s truly over. In fact, I try not to make predictions on any of my cases since the vagaries of life and litigation tend to upset the prediction applecart.

But assuming it is over, since that is what logic tells me, we move to the ultimate question: Was it worth being part of the defense team?

The answer has to be yes. The clients I have are like-minded individuals that cherish the First Amendment and are willing to fight for it. They could have easily ponied up the $5,000 that Rakofsky wanted early on to make the case go away, but they elected to fight. These are the types of people you want in your foxhole.

The message should go out loud and clear to all that consider bringing a frivolous suit against us. We make our living within the justice system, many of us by battling in the courtroom well. We have a pretty good grasp of how the courts work and the bounds of our freedom to speak and to write that are immortalized in the Bill of Rights.

We think it’s important to shine a light on ethical issues that we see with respect to attorney conduct that we believe crosses red lines, in the grand hope that such light becomes a disinfectant for the legal community. We do not want to see the cops’ Blue Code of Silence or the medical community’s White Coat of Silence darken our profession.

We will not cower or wilt under fear of empty threats or vacuous suits. Those that attempt such intimidation will find hardened and opinionated citizens who don’t care to relinquish our rights to speak freely. We know how to stand on the ramparts to fight for those rights, and we know how to win.  Representing such resolute individuals, despite the procedural shambles that ensued, has been my honor.

Was it worth doing? You’re damn right it was.

We interrupt this blog to bring you a special announcement on the latest and greatest in law firm marketing.

As you can guess from the picture to the right, my answer is not about  phony press releases like this that are little more than advertisements with links to obtain Google juice (this link is coded “No follow” to avoid that problem).

And it isn’t about creating fake law blogs, or flawgs (a great portmanteau), in order to create empty content that Google indexes in hopes to game search engines so that potential clients will find you.

And it isn’t about amassing gazillions of Twitter followers with less-than-candid personal profiles.

It isn’t about outsourcing marketing so that others can leave comment spam on blogs in the name of the law firm.

No, I am here to announce that the best attorney marketing — other than the obvious one of doing a good job for  your clients, who in turn refer you to others, a tactic that seems to get overlooked by the marketeers — is the tactic that is close to home. Do something in your community. There are approximately one gazillion ways to do this.

Being involved in the community isn’t a bad way to have people learn who you are and what you do while also providing muscle, brains or perhaps some financial support so that kids can, for example, take part in the national pastime. It’s the same approach used by generations of professionals and businesses of all stripes.

That’s right, this year’s winner of the best marketing technique is the same one I discussed back in 2010 when I got disgusted by all the marketeers pimping the “leads” they could get me for new cases from their attorney search services.

As I’ve told more than one cold-caller: I don’t have leads, I have clients. Humans are not commodities to be bought and traded.

I like to think of my version of marketing as an all-around win-win. It sure beats placing your firm name over a urinal.

And, by the way, since I know you were wondering, the kid on the mound to the left is the same one previously featured with his skateboard.

He done good this weekend. Thanks for asking.

In the wake of the Boston Marathon bombings, I wrote down some of my thoughts about the event (Boston Marathon Bombing — And the Lives We Lead), since the race is one of my favorites.  One of those thoughts, at the end, was this:

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

This guest post below addresses that very theme; it was an essay written by my running club president Steven Stein for our weekly newsletter, which went out last night.  Last weekend he ran a race in Central Park and noticed that things had changed. A lot.

Since Stein grew up outside the U.S. he brings a perspective different than most to the concepts of freedom and security. It is reprinted here with his permission:
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Last week at Overlawyered I had a little back and forth with its publisher, Walter Olson, on the concept of a loser-pays system. For those not familiar with the idea, this specifies that the loser of a lawsuit pays the legal fees of the winner. This is in contrast to the “American Rule” that says, generally, each side bears its own costs.

There are exceptions, of course, such as legal fees being part of a sanction for frivolous litigation, but we deal here today with the general rule.

There are two issues regarding the rule: The first is that it effectively closes the courthouse door to much of middle America. On one side in a typical tort case is likely to be a multi-billion dollar insurance company defending an auto collision or medical malpractice case, and on the other a person who may be struggling to work, or incapacitated and trying to figure out how to pay the mortgage or rent.

One side has incentive to run the meter and stall, and can readily afford to do so. If the litigant loses a simple issue of “who had the green light” then financial devastation may follow, but there is no such threat on the other side. The parties are not equal and the scales of justice unbalanced.

But the second issue is more interesting to me here because it deals with even broader public policy issues, and that came up with Olson’s comment responding to me:

A “legal system that only the wealthy can use” is not an accurate description of the pluses and minuses of the legal systems in the great majority of advanced democracies where loser-pays is the norm, such as Canada, the U.K., Scandinavia, the Netherlands, and so forth. It does, unfortunately, accurately describe some sectors of the American legal system (such as small high-merit claims and many injunctive matters) where neither fee shifts nor contingency fees are available. Oppose loser-pays if you like, but enough of the sloganeering.

The U.S. system here is compared to other nations with reputations for significant social service programs (and high taxes to pay for them). Universal health care is the most obvious example. The U.S., by contrast, has far less government involvement with our lives and some of the lowest taxes of any industrialized nation on earth.

If we close the court house door on people by making it more difficult to proceed, then what happens to those already injured? Well, they absorb the costs themselves until they are poor enough for the minimal social service programs that we have and then the taxpayer picks up the tab. And they remain poor, having now been victimized first by the negligence of others and then again by being forced to bear the financial burden.

The American Rule, as it now stands, is consistent with the parties working things out privately in court with minimal government intervention. Sure, verdicts can get tossed out if they are true outliers, but for the most part verdicts are respected.

The interesting part about this political discussion, I think, is that last week Overlawyered became affiliated with the Cato Institute, a libertarian think tank. While I certainly wouldn’t want to speak for them, it seems to me that a loser-pays system (and other tort “reform” measures that give protections and immunities to those who are negligent) garners greater government involvement in the lives of the populace, contrary to its own political philosophy.

If we want to shift the costs of injuries caused by negligence away from the tortfeasors and onto the backs of the taxpayers, then we need those Scandanavian government economies to accommodate that shift and provide the support.

The U.S., I think it’s clear, isn’t going that way.  We are faced with a choice as to whether we let parties duke things out privately or let the government come in with support. A nation can have one or the other. But what we can’t have, is both the stripping away of private rights at the same time that we have limited government support. That is not the model used by any industrialized nation that I know of.

Oh look! Another shiny new gadget! What could possibly go wrong, besides, you know, everything?

From the New York Times yesterday:

Oakley, the eyewear company, makes a $600 ski goggle that comes with a warning in the package: Do not operate product while skiing.

Zeal HD camera goggles allow athletes to make videos.

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis,  drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast,  Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

I wish I could say that I was shocked by the explosions that rocked the Boston Marathon on Monday. But I wasn’t . Appalled, disgusted, and cringing for others, yes, but shocked, no.

Since 2001 I have long expected that a major road race would eventually be a target. It is, quite frankly, too easy. A 26.2 mile race course is unsecurable. Boston’s marathon has 500,00 spectators and New York has two million. Those spectators are a large part of what makes such events magnificent pieces of urban theatre.

Do the risks of such events mean that we should not create them or participate?

In 2001 the fires were still burning at the wrecked World Trade Center when 25,000 runners stormed over the Verrazano Bridge to start New York. I was one of them. If not for the attack, I would have deferred my entry due to injury. But the thought of canceling vanished from my mind when I learned the race was going forward; it was better to run slowly than not run at all.

Each of us, runner and spectator alike, knew back then that we wore bulls eyes on our shirts. Yet the crowds were as large as I’ve ever seen. It was important to both commemorate those that had been killed as well as the vitality of lives that we had.

If we want to live in a free society we have to accept such risks. The alternative is unacceptable. Since the September 11 attack I’ve run a dozen races with fields of 15,000+  in New York, Boston and Washington DC, the last of which was the Cherry Blossom 10-miler in the capital last week.

The only acceptable response is to continue on with life, to enjoy what you enjoy doing. Cowering is not an option. I don’t believe that the families of those killed and those injured would want to cede freedom to fear.

Boston Marathon finish line in the winter.
Photo credit: Me.

One point on the bombing that I did want to mention: Unless there was a certain significance to the date, I  think New York might have been the original target and that after the race was canceled due to hurricane Sandy the attack was moved to Boston.Why? Because the bombs went off at 4:09 into the race. (That time is based on the first of three waves of runners, each 20 minutes apart.)

While 4:09 would be ahead of the mid-pack of New York (average time in 2009 was 4:24), it is the back end of the pack for Boston runners. That is because the vast majority get into Boston based on strict qualifying times (average finishing time in 2010 was 3:50), while New York stresses a more democratic lottery system. One of the great allures of Boston is not just its age, but the fact that it is merit-based.

Those in the back of the pack, the ones mostly affected here, were running for charities or sponsors, who didn’t get in based on the swiftness of their legs.

The timing of the bombs is significant because they not only affect those in the immediate vicinity (mostly spectators), but they create city-wide chaos since an army of people are still running toward the spots when it happens.

Attacking the back of the Boston race is much different than attacking the front of New York. While in Boston 17,000 had already finished the race from a starting field of 23,000, in New York most would have been behind the bombing and the starting field would have been almost 50,000. Instead of six thousand Boston runners, it would have been tens of thousands of New York runners. Trying to stop such an event on the fly is a daunting concept, to say the least. And reconnecting each of these people to items that they had checked in bags at the start (hotel keys, car keys, phones to connect with family, money for transportation, etc.) would be a logistical nightmare.

On a final note, the graphic I choose to use here is not one of blood and fear, but a simple photo of the finish line that I shot in December 2008 out the hotel window of the Charlesmark Hotel that sits over the finish line. I wish to remember the excitement that leads up to running one of these races and to remember Boston as I had run it the first time.

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

Remember those killed and injured. Honor them in a manner that you believe is appropriate. Then lace up the sneakers and go for a run, and live the life that you want to lead regardless of those that wish to stand in the way.

As per the New York Times, football helmet maker Riddell was whacked with a $3.1M verdict for failing to warn players of the dangers of concussions. This represents 27 percent of $11.5 million in damages that were awarded to Rhett Ridolfi, who sustained a head injury and was paralyzed on the left side of his body during a football drill in 2008.

In doing so, the jury also rejected claims related to design defects in Riddell’s helmet.

Since it isn’t my favorite thing to simply re-hash news stories — you are more than capable of hitting that link and reading about the case — let me jump to the future, and that deals with the design defect that was not found.

The modern football helmet is part of the Law of Unintended Circumstances. Created to protect the head, it gave players so much confidence that they started using the head to attack with, instead of to think with.

There are thousands of other lawsuits out there from former players who have suffered brain injuries from repeatedly smashing heads with the opposition. There are plenty of parents out there watching and, I believe, pushing their athletically minded kids to other sports where brain damage isn’t as likely.

Whether these lawsuits survive or not will likely go to the issue of what was known about the dangers, when was it known, and when was the information was shared. One can only assume the risk of an activity, after all, if it is a commonly appreciated risk which is inherent in and arising out of the nature of the sport and generally and flows from such participation.

But regardless of how those suits fare, playing out concepts of a failure to warn by manufacturers and assumption of risk by players, I think the writing is on the wall for the next generation of athletes.

I think we’ll see a return to helmets with a soft exterior, to help blunt the impact of smashing heads. If the helmet loses its effectiveness as a weapon, then it won’t be used that way. The TV folks probably won’t be keen on that, since the smash of helmets is part of the audio opera of the physical contest. But the times, I think, will be a changin’, as the cost of being a gridiron warrior is simply too high.

Justice Sam Alito (or not?)

Today is April 1st. It’s also opening day for most baseball teams. So if you’re a Mets fan like I am, it’s an interesting happenstance, no?

But if you came here hoping for an April Fools’ Day gag, you’re going to be disappointed. It’s just a quickie quiz on Supreme Court Justice Samuel Alito and baseball.

Hoaxes have simply become too complicated and difficult for me to coordinate. The last couple of years I went through hundreds of emails setting up elaborate cock-and-bull stories. In 2011 it involved a 23-blog web ring. Last year I created a new web site just to hide what I was doing with over a dozen co-conspirators, since so many people were assuming I would use this site for trickery. If I did this again, my wife would kill me. Then she would divorce my rotting carcass. Even fun has its limits.

Also, it’s nice to retire before I go stale and start putting out lame crap.

But just because I’ve retired from gags doesn’t mean I can’t bring you a modest little quiz regarding law and baseball and focusing on Justice Alito pictured here at right on a baseball card from a fantasy baseball camp.

Or maybe it’s a fake card. This is, after all, April Fools’ Day and do you really believe anything I write? I can almost see your brain cells pulsing as you look to see who will get hornswaggled.

Cheating on this poll is easy, as anyone over the age of eight can use the Google. But if you cheat, a kitten will die and someone will turn you into an anti-kitten Facebook meme that will quickly devour the web because that’s what the web does best and it would really suck for you and then your spouse, kids and siblings would divorce your dead rotting carcass. I’m sure you don’t want to test that theory.

And you know I’m right, anyway, or you wouldn’t have read this far.

Where was I? Oh yeah, the poll.

Each question has a link. The link contains the actual answer. But you have to answer the poll first before you click the links to see if you were right. It’s all about the kittens, remember? If you didn’t remember the kittens from three short paragraphs ago then you’ve got bigger problems than I can deal with here.

But cheating is also about your soul. Don’t screw with your soul, it ain’t worth it for a little quiz, and someone might scratch “cheater” on your headstone one day, and that one day will probably be April 1st just for the karmic kicks.

In this quiz, everything below is true, except for one item. Which item below is false for SCOTUS Justice Alito?

1. He once went to a Philadelphia Phillies fantasy baseball camp that produced the baseball card you see above (link)

2. He was born on April Fools’ Day (link)

3.  Because he plays in a fantasy baseball league he recused himself on a case dealing with the sale of baseball statistics to statistical services for fantasy leagues (link)

4.  There is a website that compares all Supreme Court justices to people in baseball.  John Jay, for example, is compared  to the first baseball commissioner, Kenesaw Mountain Landis. Justice Alito  is compared to flame-throwing right-hander Jonathan Papelbon, because Papelbon was supposed to be the next Roger Clemens while Alito was touted at his confirmation as the next Scalia. (Papelbon is now with Alito’s beloved Phillies.) (link)

5.  His childhood ambition was to become commissioner of baseball. (link)

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You didn’t cheat, did you?

Google’s Sergey Brin models Google Glass.
(Credit: James Martin/CNET)

[This was originally posted March 13, 2013. It was bumped and updated on March 25th due to proposed legislation in West Virginia; see below]

The chances of Google Glass being a factor in people being maimed and killed is approximately 100%. If you don’t know what Glass is, it’s the latest and greatest in whiz-bang technology, created apparently, just because it can be created.

Glass is a computer embedded in eye glasses that allows users to be online and see a computer screen in the lenses. It also has a camera.

These are designed, of course, for that segment of the population that forgot the basics of actual human interaction and need to be connected to their digital friends 24/7. Some of the software toys were displayed this past week at the South by Southwest technology conference in Austin.

There are many self-assured people who think they can multi-task; by walking or driving and web surfing at the same time. But people who think they are good at multi-tasking are actually the worst. Our brains aren’t wired that way.

You don’t need to be a rocket scientist to see where this leads: Cocky Glass users will walk into intersections and be hit by cars because they are getting a Facebook update on the latest cat video, or tweeting about the latest basketball buzzer beater. There won’t be sympathy for them, of course, as people chalk this up to the culling of the masses with Darwinian behavior.

But what will be important are those that drive with them on, regardless of Google telling them “Don’t do that!” The chance of this is also about 100%, even if Google makes the glasses inoperable when moving faster than x mph.  Folks will figure out a way to disable it, perhaps by killing off the GPS signal, because you know, they need to know how many likes and re-tweets they got for that online joke they cracked. Some things can’t wait. With smart phones we have the entirety of human knowledge in our pockets and this is what we use them for. Ben Franklin would be proud.

The blunt reality is that almost all auto collisions occur due to distracted driving. We see it often with texting, cell phone use, eating and noodling with the knobs on the radio, assuming you can still find a knobbed radio. A moment’s inattention and you won’t see that the car in front of you has stopped. At 55 mph, a car will travel 160 feet in just two seconds — half a football field. The margin of error in driving is preciously small.

Perhaps you think me a bit of a curmudgeonly anti-technology anti-Luddite pining for the old days of Prodigy and dial-up service. But I don’t think I’m alone in this. I think there is substantial backlash already occurring when phones are whipped out at dinner tables so that people can update their status, while ignoring the dinner companions they are actually with.

Google Glass, to the extent it finds any substantial market, will only exacerbate that. But if we are lucky, the backlash will be signficant as more people see what we are losing. Perhaps I’m a dreamer.

I don’t expect to view Google glass users as avante grade, hipster anythings, as these folks will no doubt see themselves. I expect instead, when they do appear, to see them through the prism of my own eyes as people unable to deal with the reality that sits before them.

My two sheqels on the subject. Your mileage may vary.

March 25 update: Legislators in West Virginia have now proposed legislation outlaw driving while using Google Glass, deciding to act even before the product was available on store shelves. According to the CNet article, this bill seeks to make it illegal to drive while “using a wearable computer with head mounted display.”

One of the legislators supporting the bill is Gary G. Howell, who had this to say about the government being proactive with this legislation:

“I am a libertarian, and government has no business protecting us from ourselves, but it does have a duty to make sure I don’t injure or kill someone else,” he explained.

More here: Don’t Glass and drive — lawmakers seek to ban Google Glass on the road