April 10th, 2017

Passover, Syria and a Presidential Prayer

Passover and its seders deal with two fundamental concepts. The first is a celebration of a very dramatic escape from slavery to freedom.

The second is empathy. At the seder, we are asked to place ourselves in the footsteps of those who were physically there, as Jews note that we were slaves in Egypt and now we are free. A central part of the reading of the Passover Haggadah states:

“In each generation, each person is obligated to see himself or herself as though he or she personally came forth from Egypt.”

This concept is repeated in song and other readings as we attempt to “relive” history, so that its lessons are not forgotten.

So what does this mean for the current catastrophe in Syria, with an exodus of people fleeing to freedom as fast as they can get out the door?

Should we not place ourselves — to the best such placement can even be contemplated — into the shoes of others living in oppression?

If people are enslaved or living under tyranny elsewhere, how can we really be free if we have empathy?

Aren’t those who are currently free, mostly free due to little more than the lottery of birth?

An additional Passover prayer for President Trump, in the event that he can attend a seder or two this week:

Let him contemplate that the Jewish escape from tyranny and slavery 3,000+ years ago is not just history, but that others remain in such dire circumstances today. Let him have the wisdom and the charity to open our doors to those fleeing oppression, and recognize that those who make it to freedom are often the best that this world has to offer.

While freedom may be a lottery for most, it is not for all.


March 28th, 2017

Jacoby & Meyers Goes Down Bigly

Jacoby & Meyers had an idea. If only they could get non-lawyers to put money into its firm for a share of the profits, they could fund expansion. The only itty, bitty problem with that is that it’s ethically impermissible to share legal fees with non-lawyers.

So it brought suit back in 2011, trying to claim its rights were violated. And worse yet, to me, tried to claim it was doing so on my behalf, when they wrote that suit was being brought:

“…on behalf of itself and all others authorized to practice law in the State of New York…”

Blech. Non-attorneys owning a share of law firms is an awful idea, and one that the Second Circuit Court of Appeals shot down last week. The firm tried to lawyer its way around the ethical prohibition by claiming it was a First Amendment violation of its right to freely associate. The problem, of course, is that the right to associate with a lawyer belongs to the client, not to the lawyer trying to finance business expansion.

As Scott Greenfield notes, it wasn’t always this way. It started, sort of, as the People’s Express of law firms:

When Jacoby & Meyers began, it was supposed to be the People’s law firm, solid lawyering at prices regular folks could afford. Some wags might argue that this was merely a marketing stance, as they wanted money as much as any other law firm. When they didn’t get it, they pivoted to a personal injury firm.

The firm having pivoted to personal injury, I’ll rehash what I’ve said before about non-lawyers owning any portion of a firm:  It is an invitation to ambulance chasing. The non-lawyers simply skirt the ethics rules to which they are not accountable, and impermissibly hustle business. The concepts of ownership, solicitation and marketing all become fused into one unaccountable mess.

And what will the lawyers say when the non-lawyers gets found chasing? They would no doubt profess shock (shock!) that such activities were going on under their roof.  “We’re so sorry!  We had no idea!!”

Let’s hope this miserable idea is finally put to bed, for the surest way to degrade the practice of law and diminish the residual respect we still have in some quarters is to introduce non-lawyers into the mix.



March 20th, 2017

Breslin and Blogging

Breslin on a bar stool, where he belonged, via Daily News and Michael Brennan/ Getty Images

I was reading an obit of the great New York newsman Jimmy Breslin, who died yesterday, and a quote jumped right off the page that I wanted to share. Because it’s about blogging, sort of.

His readers and reputation were clearly that of the everyday working man, and not the hoity toity elites. How did he make his curmudgeonly pieces spring to life?

Before one gets to writing styles – no one needed a dictionary to read a Breslin piece, he being the antithesis of George Will — one needs to address motivation.

As in motivation for writing the piece to begin with. The quote:

Asked in a 2012 interview what he aimed for as a journalist, Breslin replied, “To please a reader: me.”

“I didn’t care about anybody else,” Breslin said. “If I thought it was humorous, if it made me smile, I put it in. I wrote it in the paper and didn’t care what anyone thought.”

I note this because, while no one would ever confuse me with being Breslin, it reflects my own motivation to write this blog for the past 10 years.

With no publisher (and obviously no editor) I write whatever the hell I want. Which is usually on the personal injury law, but I’ve obviously taken a very expansive view of what that subject entails and feel free to get sidetracked if I like.

Writers gotta write. And you can only do it if you have a zest for the subject, be it law, running, or ponies.

If you write for others, instead of yourself, your work will probably suck. That’s what happens when a writer doesn’t have an interest or a passion in the subject. People that write for Google algorithms will always turn out crap.

It’s a pretty good lesson for bloggers.  Write what feels good and what feels right. Then hit the send key and go about your day.

If others like it, great, and if not, well, nothing lost there since you weren’t writing it for them.



March 16th, 2017

Good Doggie, Bad Owner, No Lawsuit

Meet Tucker. He’s mine. Does his owner look dangerous to you?

When last we visited New York’s dog law, it was really good for dog owners, but not so good for those that were injured by their negligence. New York, you see, is an outlier to the vast majority of states. While in most states you can successfully sue the owner for the owner’s negligence, in New York, you have to blame the dog.

And by blame the dog, I mean show a previously known vicious propensity. You know the old adage about each dog getting one bite?  That’s where it comes from, since the bite gives notice to the owner of an, ahem, issue.

If you have a good dog, on the other hand, but a dumb owner that lets the pooch run loose in places pooches shouldn’t be running loose, you can’t sue. At least not successfully. Owners have absolute immunity for their own negligence.

Yeah, that’s a dumb rule. But it was nevertheless reaffirmed two years ago by New York’s top court in Doerr v. Goldsmith when a dog owner called for his dog to come, and the dog obeyed, as it ran across the street in Central Park into the path of a bicyclist.

New York’s Appellate Division, First Department (we have four departments of this intermediary appeals court) thought that suit should go forward. Our top court said otherwise in reversing, telling the injured plaintiff, too fuckin’ bad. That’s a legal phrase of art that lawyers must sometimes use to explain things to clients.

Much unhappiness around, unless you think people should have immunity for their negligent conduct.

Today, the First Department does it again, once again challenging the illogical view of the Court of Appeals. In Scavetta v. Wechsler a dog owner tied his 35-pound dog to an unsecured 5-pound dog rack.

Owner went toward store. Dog followed. Dog heard scraping and screeching of dog rack he was towing, freaked out, and bolted. Rack clobbers Good Samaritan trying to help panicked dog.

So this is another case of Good Doggie, Bad Owner. (OK, maybe negligent owner is the better way to write that, but it doesn’t have quite the same rhythm, does it?)

Can you bring suit solely based on the conduct of the dog owner? Indeed, the plaintiff actually stipulated to the fact that the dog did nothing vicious. This was strictly about owner negligence.

The First Department gets right to it in just the second paragraph. After first stating that it is constrained to follow precedent from Bard v. Jahnke (“when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule), a unanimous panel of the court goes on to decry the sad state of New York law and virtually begging the Court of Appeals to reconsider its unsound policy:

At the same time, we take this opportunity to acknowledge plaintiffs’ persuasive argument that the Bard rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner’s negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

Yeah, I added that emphasis. Immunity. That is what the Court of Appeals has continued to grant for negligent conduct, and it runs counter not only to the rule from the Restatement (Second) of Torts (§ 518 permitting liability where an owner of a domestic animal is negligent in failing to prevent harm caused by the animal), but counter to the rule in the vast majority of states.

The court explained its logic, writing that:

In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations (see Doerr, 25 NY3d at 1148 [Fahey, J., dissenting]) — assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws.

I hate block quotes, but this analysis by the First Department is the essence of what our top court has done:

Under the current rule articulated by the Court of Appeals, it appears that pet owners would be permitted to act in any number of objectively unreasonable ways when supervising their nonvicious pets, because New York law does not place upon them a duty to observe any standard of care …It seems…that under the law of New York at present, permitting a domestic pet that has not displayed vicious propensities to run at large under any circumstances – even when doing so would be clearly dangerous – would never give rise to a claim sounding in negligence. We find this to be most unsatisfactory as a matter of public policy and would recognize a cause of action for negligence in appropriate circumstances.

Let’s hope the plaintiff takes an appeal, and let’s hope that this anachronism of immunity that the court has bequeathed upon animal owners (including me, as the owner of the pictured pooch above) is laid to rest. Six feet under.



March 7th, 2017

The Twitter Fail by Trial Lawyers

You may think that there is too much ” advertising or marketing by trial lawyers. And in one sense you are right if you think in terms of subway ads, or worse (ads over urinals or at funeral home web sites).

But you know what? There is one group that does a pretty lousy job of getting its message out, at least insofar as it pertains to Twitter. And that is our trial lawyer associations — those groups of lawyers that have pooled our resources in order to advocate for consumers so that rights are not stripped away.

Despite Twitter being cheap, easy and very effective in getting a message out to the general populace (as should be abundantly obvious now given the recent election), the various trial lawyer associations do a crappy job.

I’ll pick on the American Association for Justice today, of which I am a card-carrying member. With 56,000 members, this is the single most prominent national trial lawyer group in the country that fights for a fair and effective civil justice system.

The group not only lobbies Congress, but has a wide range of sections devoted to different practice areas, and publications to meet most any need. If you represent injured people as part of your practice, there is no doubt you should be a member.

But I am flummoxed by the lack of something so simple – social media outreach to those that aren’t trial lawyers. To “regular people” who very much have a vested interest in the outcome of, say, the attempt to grant immunity to medical practitioners or to knee-cap class action suits.

The AAJ Twitter feed has just 6,000 followers. While a large number of followers isn’t always meaningful, since phony “ghost” followers can be bought, a relatively low number of followers for a large organization is indicative of a failure to adequately utilize the medium.

AAJ’s  contribution to the masses via this forum consists of mostly just posting its own stories. There is little engagement with others. No re-tweeting of articles written by others. No responsive public commentary on issues of the day that matter to people likely to be affected.

The AAJ Twitter feed acts, for the most part, as little more than another means of distributing press releases and research reports. But it fails at this.

How do I know it fails? Because few of its tweets have been shared more than 10 times. That is, quite simply, a dreadful track record.

If we are going to put all the time, money and effort into creating research reports — that debunk myths and use empirical data instead of relying on anecdotes — shouldn’t we spend a little time actively promoting those reports and get them out into the public?

The more folks that read them, the more that share them, the more likely it becomes a subject of town hall meetings and additional press. Don’t we want regular folk calling their elected representatives regarding the evisceration of rights?

It takes time to build up relationships with other people, particularly those with a voice likely to rebroadcast messages. The best time to start doing this was a few years ago. The second best time is today.

AAJ should be doing everything it can to encourage, and maximize, the voices of those that are fighting for the same thing — fair access to the courts.

State trial lawyer associations are, for the most part, no better. Every state, to my knowledge, has a trial lawyer association. But few are utilizing a widely used and free platform to get the messages out to those that may lose rights.

Tort “reform” was not part of the election — if it was ever mentioned by Trump or Clinton I missed it.

But with Republicans in charge now of House, Senate and White House, it sure as hell is on the front burner now.

So please, get out there, engage, and be more active in getting the messages out. Today, not tomorrow.