Subway Gunfights and Other Distractions

distractionEver been in a crowded subway car when a gunfight broke out? I have. It’s not a fun altercation.

That incident from 20 years ago popped back into my brain when someone was shot and killed in the NYC subway system recently. Apparently some strangers exchanged words, and then blammo. (That’s the short version. Fuller version Scott Greenfield.)

My experience with a gunfight occurred on an uptown Seventh Ave. express heading into Penn Station. At rush hour. Two guys started pushing each other, about 10 feet away from me.

There were a few people between me and the scufflers, but in a packed car, if one person moves quickly it reverberates. A few shouts from strangers to cool it. And when New Yorkers yell at strangers to cool it, you know something really odd is going on.

We try hard to keep to ourselves. Because New Yorkers love to pretend nothing is happening, even when it is. We don’t look into the eyes of our fellow passengers. There is no end to the possibilities of what may happen, too many of which are negative.

And then a couple shouts of “Gun!”  Along with everyone else in the car, I dove to the floor. And I was happy. Happy to be on the floor of a filthy rush hour subway car. With someone else on top of me.

“Pop. Pop.” Two shots.

We pulled into Penn Station — with all those commuters on the platform thinking they were going to pile into that subway car and make their way home, as a tsunami of people flooded out.

I peeked back after exiting. There were two men on the floor. One holding a gun to the other. Neither moving.

The news that night reported a scuffle took place with pushing between the two men. One pulled a pistol. Then the other wrestled it away from the owner and shot him twice with his own gun.

Now I’ll explain why these two sudden and terrifying incidents actually matter in a simple trip and fall case. Stay with me here, because this time I think I have an actual point to make.

A great many trip/slip and fall cases focus on the defect, whether it’s ice, busted sidewalks, potholes, stairs, whatever. The defense is twofold: Either it’s too small to be actionable, or so large that it’s open and obvious. It’s all about the defect. Look, look, look at the defect. It’s tiny (or alternatively only a blind man could miss it).

Now here’s the problem, and the challenge for the plaintiff’s attorney: It isn’t enough to focus on the defect. Sure you have to prove it, but in a busy city like New York, there are a million distractions, some static and some dynamic. Your client is looking at those too.What was the reason that the defect wasn’t seen?

The static distractions are the fire hydrants, food carts, sidewalk signs and parking sign poles, trash cans and trash bags, store windows, dog droppings, sidewalk grates, and other such stuff of daily life.

But the dynamic ones are more important: These constitute the walkers, runners, vendors, baby carriages, dogs and bicycles that are everywhere, some moving fast, some slow, and some doing all they can to make sure you look at them.

And that is in addition to the hustlers who may deliberately bump you, dropping a cheap bottle of wine or eyeglasses, and demand that you pay for the damage you caused.

Why are these dynamics more important? Because you don’t want to inadvertently bump into your fellow New Yorker. Why? See gunshot stories above.

We don’t like to talk about this much, but it’s on everyone’s mind as we zig and we zag between the static and dynamic distractions of the walkways. An inadvertent bump into another is one of the disconcerting and discomfiting interactions of subway and sidewalk life, for it involves fear of The Altercation.

We don’t want to have this anxiety, but we do.  Because we don’t want The Altercation. It’s big city life, and we’d like to get safely to wherever the hell we set out to go with as little hassle as possible, thank you very much.

That’s why, on the subway, New Yorker’s don’t look at each other. Sure, looking another in the eye might be a sign of love. But it may also be one of aggression. And you don’t want your glance to be “mistaken.”

Know how you can tell who the tourists are? They look at other people on the subway — though in all fairness the pastel shirts of some give them away long before that.

Where was I? Oh yeah, so we don’t always look down when we walk. We don’t always see the static defects that blend into the background and, quite frankly, shouldn’t even be there. We mostly look for the dynamics around us, trying to avoid the cars, bicycles, crazy taxi drivers and each other.

The lawyer that focuses solely on the defect may well lose. Sure, it could be a deceptive walkway, like these stairs, poor lighting, or an infirmity of the pedestrian that makes the defect more difficult to discover or navigate.

But the defect, which represents a trap, also exists in a much larger environment and context that is filled with other dangers to our well-being.

If you take the slip/trip fall case, the client ought to be able to reconstruct his surroundings to answer the question of why the defect was missed. And I don’t mean the easy questions of lighting or personal disabilities. But what were the static and dynamic distractions that existed in the few seconds before the fall?

You can have completely different results despite a defect being identical. In once case, you might have someone walking down a narrow and crowded subway stairwell, and miss the ice patch as he strives to avoid bumping his fellow commuters.

But if the reason for that same slip was that he was sending a text message — adding his own distraction to the multitude that already exist —  there is as good chance he will lose.

To the practitioners out there, don’t just ask about the defect in the walkway. Find out what the potential client was looking at instead. Because the jury will want to know.

Another Defense Orthopedist Slammed By Judge

You remember, dear reader, that one of my concerns about the fair administration of justice in personal injury cases here in New York is the fact that defense doctors are often less than candid in the independent medical-legal exams that they do?

Dr. Robert Israel was sanctioned by the state. Dr. Michael Katz excoriated by Justice Duane Hart. One doctor decided that what’s “normal” is what the insurance carrier tells him. Another reveals how to leave out of the reports things that may be beneficial to the plaintiff. And I uncovered in my own investigation a bevy of doctors doing “quickie” medical exams.

Now comes before us Dr. Julio V. Westerband, yet another orthopedist. And he was benchslapped big-time last week in an opinion by Justice Arlene Bluth. He seemed, in my humble opinion, to be oddly challenged by the idea of writing objectively for an “independent” exam.

This is the set-up: Plaintiff was standing on the sidewalk outside a car wash. Defendant driver lost control of his car and hits the plaintiff. Plaintiff suffers injuries, including a broken ankle.

I know, it’s complicated. But this is the interesting part: to proceed in an auto case in New York you have to show a “serious injury,” and one of the ways of doing that is by showing a fracture. So the fact of fracture is particularly important.

Plaintiff moved for summary judgment, both on liability and on the issue of serious injury. Liability wasn’t contested, but the fracture was.

How can Dr. Westerband — who did a medical-legal exam of the plaintiff on behalf of the defendant — contest the fracture that repeatedly showed up on the x-rays? Easy! By not reading the x-rays and simply ignoring the written reports that he concedes explicitly state that the ankle is fractured.

No, really, I’m not kidding you.

Plaintiff put in proof through his own orthopedist, who treated the plaintiff and saw the records, that the ankle was broken.

But Dr. Westerband? Could he be bothered with objectivity? Well, if he did that, then the defense would lose, right? If multiple radiology reports all say fracture we can pretty much guess that there will be a fracture, right?

And he did see the reports, for in his own report — summarizing the records he reviewed and his medical-legal exam — he indicates that all four of the ankle x-rays reports show a fracture. Westerband Report

But instead of writing “fracture” in his own report, which is a magic word according to our Legislature, he writes  “questionable” fracture. Based on what is it questionable you ask? Funny that you should ask, because Justice Bluth asked the same thing, and then wrote:

He did not review x-rays and did not disagree that plaintiff suffered a broken ankle in the accident. Rather, with no support whatsoever, he concludes “status post questionable right ankle fracture.” Maybe if he looked at an x-ray he wouldn’t have a question.

Zing!  The defense, having failed to raise an issue of fact on the issue of a fracture with this idiotic argument, lost the motion for summary judgment. They should probably be grateful that plaintiff’s counsel didn’t move for sanctions. Given Justice Bluth’s obvious annoyance at having to even hear this nonsense, it wouldn’t surprise me if she would have considered it.

Dr. Westerband, by the way, has previously testified that he testifies about 25 times per year and that half of his income comes from medical-legal exams and testifying. I know, you are shocked.

The decision is here, and as you can plainly see, handwritten. So I’m publishing it now also in a Google-friendly way, since handwritten opinions aren’t likely to get officially reported, and others may wish to cross-examine Dr. Westerband on why he makes decisions on fractures while both ignoring the x-ray reports and failing to look at the films: Westerband Decision

You’re welcome.

 

The Fainting Lawyer and the Stress of the Courtroom Well

HansPoppe

Hans Poppe, Louisville, KY

Almost two years ago I wrote of the lawyer who fainted dead away on the 10th day of a medical malpractice trial, where he was representing the patient. And the defendant doctor he’d sued then rushed forward to assist him. The story even had video.

The lawyer, Hans Poppe of Louisville, KY, was at the bench discussing the defendant’s motion for a mistrial when it happened. Poppe, it seemed, had inadvertently played an unedited version of a deposition that had a verboten discussion of medical malpractice liability insurance in it, instead of the edited version that excluded those questions.

That technoblunder resulted in a mistrial, and the insurance company, Kentuckiana Medical Reciprocal Risk Retention Group, then went after Poppe for the costs of the mistrial. The insurer sought a whopping 125K in costs and fees.

And now the issue has come to a conclusion, and hence this update.

In a decision dated February 13, 2015, Jefferson Circuit Court Judge Audra J. Eckerle supported Poppe and not the insurance company.

Why? First off, the insurance company provided no evidence that Poppe acted intentionally. How does one prove intent from mouse clicking the wrong file to play in the courtroom? By looking at both the actual evidence and mitigating circumstances.

And the judge saw that, upon realization that the wrong video had been played, and understanding the ramifications of it, she wrote that the Court saw:

“…the color pass from Poppe’s face when he realized what he had done. And, of course, it witnessed him faint when the fully gravity of his malfeasance hit him. His subsequent actions and apology seemed genuine. The Court accepts that, as well as the mitigating circumstances that Poppe has offered.”

What mitigating circumstances? This is the nuts and bolts of what it is to stand in the courtroom well, having waited years to get there, sorted through countless documents and potential exhibits, to walk the proverbial high wire without a net after enduring nights without sleep as you stress about the innumerable details of a trial:

Poppe’s misdeed occurred during the third week of a hotly disputed, highly contentious, multi-million dollar claim. Many lawyers battled. Discovery had consumed several years and several thousand documents. Witnesses and exhibits were legion. One error occurred. While it was colossal, it was singular. The Court cannot conclude, under the totality of the circumstances, that the conduct was anything other than a horrible mistake, brought on by fatigue, weariness, and exhaustion, and not by malice, egregiousness or bad faith.

That was it: one mistake. My reading of that is that Poppe’s own good reputation saved him. The matter had been contentious for sure — this was a trial after all — but he hadn’t done anything else to worry the judge.

Reputations matter. They may act, as they did here, as circumstantial evidence if that reputation was earned in front of the fact-finder.

She concluded:

Without question Poppe’s actions came at a cost to his opponents, and to himself, in a rather public and humiliating fashion. But Poppe did not impugn the integrity of the Court or undermine its authority.

The motion for sanctions was denied. And the case, by the way, settled.

 

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?

Allstate Adjuster Likely Wants Her Snark Back

Allstate

Don’t those nice Allstate hands look so friendly?

A snarky email from an Allstate adjuster may cost the company $900,000. Here’s the story.

By most anyone’s definition, 66-year-old Carol Haberman’s experience while walking her dog can be a horrible, life-altering one. Newspaper deliveryman James Burke backed out of a driveway at night while making a 3-point turn and ran her over. Realizing something happened, he pulled forward, likely running her over again.

The result? A complex left hip fracture requiring a total hip replacement, a lumbar compression fracture and compartment syndrome requiring a fasciotomy of the left leg.

What happened in litigation, however, was astounding. You may hear me rant about insurance companies and adjusters sometimes, and now you’ll see another reason why. The difference here is that the adjuster actually put her Kool-Aid inspired thoughts into writing.

There were two fundamental issues to deal with: How to apportion fault as between a driver and pedestrian. And how severe the injuries were. This would include, of course, the extent to which she had prior injuries that may have been affected.

But any way you sliced it, this was a significant matter to be deftly handled. Practically speaking, both plaintiff and defendant would want to limit their exposure with a jury. This is the type of common sense risk management of which settlements are made.

This is also one of the primary reasons that picking stupid personal fights with the other side is detrimental to a client. Because one day you might need to talk turkey over coffee with that other side about how to best serve your client with a negotiated deal.

And so it came to pass that, with a $1.25M insurance policy on the line, the parties in Haberman v. Burke thought that they had reached a settlement of sorts. This would have been what we call a high-low agreement that limits the financial exposure of both sides, with the high being $1.1M and the low being $100K.

The problem? Plaintiff’s counsel, Paul Edelstein, believed that this established the high and low of damages, and that only the issue of liability would be tried. Given the costs of hauling experts into court, this is an arrangement that can make sense for both sides.

But no. Allstate insurance adjuster Andrea Sewsankar thought that both liability and damages would still be tried. And she wanted that despite the fact that her “expert” was the discredited orthopedist Robert Israel.

OK. An understandable miscommunication occurred. But one would logically then assume that an effort would be made to hash out a solution, especially since the defendant had a problem with its expert. Whether agreement would have been ultimately reached, who knows, but certainly the efforts would be continued. Right?

Dear Reader, would I be writing this if that effort were made?

No. Instead, Allstate’s Ms. Sewsankar shot off a deliciously snarky email after Edelstein said that the two of them were not on the same page as to the details of the high-low. This was the set-up to the nastiness, via emails that I have obtained that were  being used to confirm the deal:

Sewsankar: As we discussed, win or lose, your client is guaranteed a payout of $100,000 in exchange for a cap at 1.1 million. No appeal & your client will be responsible for all liens including and not limited to Medicare.

Edelstein: Correct.  But also no damages trial.  We will do hold harmless and deal with any medicare lien

Sewsanker: Oh no, damages trial also.

Edelstein: Oh man. Sorry. We weren’t on the same page.  I cant do that.  Only high low if we do away with damages trial

So far, not a problem, right? Just two sides trying to confirm in writing the nature of a deal, and then realizing that they had an unresolved issue.

And then, Boom! The testy little missive that will likely cost Allstate a bucket full of money before it’s all over, and which cracks open the Kool-Aid drinking mindset of some insurance adjusters, and which will be extremely important after this week’s verdict:

Sewsankar: No problem, I thought you had recognized the awesome skills of my defense counsel & wanted to garner a six figure payout for your client, so I took the opportunity to solidly protect my insured with this cap. Luckily, no payout will be warranted when Ed scores a defendant verdict on liability.

Thanks a million.

Don’t you love the hubris? I’m not sure which part of the email is the best: Is it boasting of the “awesome skills” of her counsel? The “no payout will be warranted?”

I’m betting it’s the “thanks a million” part that really must be hurting Allstate now. Because the liability verdict found 65% in favor of the plaintiff, meaning that Allstate would have been on the hook for only 65% of $1.1M high-low, or $715K.

But instead the case then proceeded to a damages trial with this result this week in very conservative Suffolk County:

past pain/suffering: $500K

future pain/suffering: $750K

future medical expenses: $400K

future home health aid/ assisted living facility costs: $800K

Add that up, and it comes to $2.45M, and 65% of that is $1.6M. And the insurance policy was only $1.25M.

So, when Ms. Sewsankar wrote “thanks a million” she was off by a bit. (I emailed her for comment yesterday morning but she has not responded.)

Her hubristic and intemperate email will, no doubt, be part of plaintiff’s efforts to collect the excess against Allstate in an action for bad faith. Her snark may cost Allstate about $900K. Either that, or it may bankrupt its insured.

You can almost feel the love from Allstate’s “good hands” logo. Almost.

New York Needs More Robust Anti-SLAPP Legislation (Op-Ed)

SLAPPThis piece I wrote appears in today’s New York Law Journal. [Brackets] refer to endnotes in the original, and I’ve added some links:

—————————-

I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.

On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings.[1] You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.

But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.

When empty lawsuits are used to retard free speech, all writers suffer.

This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).

For example, in Rakofsky v. Washington Post, et al., I was part of the massive “et al.” [2] that included about 80 other lawyers, law firms, media companies, and John Doe/pseudonymous defendants. It seems that one Joseph Rakofsky, a neophyte New Jersey lawyer, went down to Washington D.C. to lead a murder defense. Except that he had never tried a case before. Of any kind.

The trial didn’t work out so well for Rakofsky or the client. The judge declared a mistrial partway through, and said (among other things), that it was “readily apparent” that Rakofsky’s performance was “not up to par under any reasonable standard of competence under the Sixth Amendment,” and “below what any reasonable person could expect in a murder trial.”

After The Washington Post wrote the story up, so too did many law bloggers, of which I was one, as well as the ABA Journal, Reuters and others, giving a variety of perspectives and adding depth to the already-reported story. Rakofsky sued so many people and companies that discussed what happened that the suit was instantly dubbed Rakofsky v. Internet. [3] Ultimately it was dismissed, since writers were relying on what transpired in court, or how Rakofsky presented his skills and qualifications on his websites. But there were no sanctions for his efforts to try to quash free speech.

The second suit, reported on the front page of this newspaper on Jan. 2, 2015, involved orthopedist Michael Katz. Dr. Katz had conducted a defense medical exam in a personal injury case (not one of mine). I found out that Queens Supreme Court Justice Duane Hart had repeatedly called Dr. Katz a liar in open court regarding his testimony. I then had the audacity to use my blog for original reporting on the subject, as well as offering my opinions on its significance.

Dr. Katz sued me. Once again the case was tossed at its initial stage, and once again there was no sanction for a litigant trying to suppress free speech by means of a lawsuit. [4]

But make no mistake about this, bringing hollow lawsuits that can’t even state a claim, and that clearly violate the robust freedoms ensconced in the First Amendment and fair reporting laws, have a chilling effect on others. While I continue to write about issues that I find important, there is no doubt that others hold back, fearful that they will be sued in order to intimidate them from writing, if that writing is critical.

Did I say that this affects writers? Well it also affects readers, who are deprived of the news and opinions that have been fearfully withheld.

Lawsuits to silence critics, such as these two against me, are called Strategic Lawsuits Against Public Participation, or “SLAPP suits.” They have become so common, with clearly significant free speech repercussions, that many states now have powerful anti-SLAPP legislation that stop the suits cold and award costs and attorneys fees to the victims.

According to Harvard University’s Berkman Center for Internet & Society, 28 states have anti-SLAPP statutes. [5] Unfortunately, the one for New York is exceptionally limited, and applies only to permits and applications in the real estate context. [6] It does not protect free speech in the abstract.

But legislation is pending in both the Assembly and Senate that would ameliorate that unnecessary limitation, and hold litigants and lawyers accountable for attempting to restrict the rights of others to speak and write freely. [7]

While some suits would nevertheless continue with pro se litigants, lawyers would be on notice that attempting to use litigation as a cudgel upon which to exert free speech concessions would backfire. Both litigants against me, it’s important to note, were represented by counsel. And both lawyers must have known that the suits were doomed from the outset.

This is, thankfully, one of those issues about which there is no partisan divide. Vexatious litigants trying to silence others are not part of any political party. The chilling effect such suits have on free speech effects us all equally, from the most prominent newspapers to the most casual individual looking to discuss the issues of the day.

In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment. [8]

The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.

Endnotes:

1. New York Civil Rights Law §74.

2. 2013 NY Slip Op 50739 (2013).

3. Scott Greenfield, Simple Justice, http://blog.simplejustice.us/2011/05/13/rakofsky-v-internet/, May 11, 2011.

4. Katz v. Lester Schwab, Dwyer & Katz, et al., 153581/2014.

5. http://www.dmlp.org/legal-guide/state-law-slapps.

6. Civil Rights Law §70-a and §76-a.

7. S1638-2015 and A258-2015; also, S1539-2015.

8. Matthew Pollack, New York Strikes Back Against Libel Tourism, http://www.rcfp.org/browse-media-law-resources/news/new-york-strikes-back-against-libel-tourism, Reporters Committee for Freedom of the Press, April 1, 2008, last viewed January 25, 2015.

 

Rakofsky Fizzles Out (updated!)

Joseph Rakofsky, from one of his web ads

And so it ends, with a whimper. Regular readers know that I was sued — how long ago was it now? May of 2011?– along with about 80 other lawyers, law firms, media companies, and John Doe / pseudonymous defendants. The suit was brought by one Joseph Rakofsky.

I was part of a group of bloggers with a joint defense — 16 writers representing 35 of the entities ultimately sued — and acted as local counsel, with Marc Randazza doing the heavy lifting.

In a nutshell, as per news articles and legal filings, Rakofsky obtained a lead to a new client while in the criminal court building in Manhattan. The new client had been indicted for murder in Washington D.C and he went down there to defend the case as his very first trial.

A mistrial was declared after a few days because, among other reasons, the presiding judge thought the defendant was not getting competent legal assistance within the meaning of the Sixth Amendment. The Washington Post published two articles on the subject, and law bloggers added much commentary that extended to the issues of Mr. Rakofsky’s advertising his services in jurisdictions where he is not admitted (including New York) and boasting of legal experience he did not possess.

Mr. Rakofsky proceeded to sue 74 different companies, people and other entities for defamation for discussing and opining on what transpired. After he was ridiculed on the Internet for having done so, he amended the complaint a few days later to add those that made fun of him, bringing the total to 81 defendants.

His attempt to amend yet again was shut down by the court when the action was dismissed. He filed a notice of appeal.

Rakofsky, using his third lawyer (not counting himself, as he is not admitted in New York, though he made some pro se appearances while between attorneys), conceded in September 2014 that “pursuing this appeal would be unproductive.” Yet he wanted an enlargement of time so that there could be a settlement conference. (Motion for leave to enlarge)

We opposed (as did others) saying that there was no point to a settlement conference since we would not give him “even one half-penny” for any claim that he thought he had. (Opposition to Motion)

And so, today, three years and nine months after it started, the motion was denied with this eloquent written opinion that only a lawyer could love:

Motion and appeal deemed withdrawn. Order

Since he conceded there was no reason to appeal, the Court deemed the motion withdrawn. And since they deemed the appeal withdrawn, then so too must the motion be deemed withdrawn.

While the word “dismissed” would sound so much better, I’m nevertheless happy to see this file headed to the old storage shed.

To my co-defendants who banded together in a big, old FU to this stupid lawsuit, in a staunch defense of First Amendment principles, I’m proud to have stood with you. And to those that gave him money or apologies and in the process surrendered your First Amendment rights to speak freely, you shall enjoy nothing but my scorn.

Elsewhere: Rakofsky v. Internet Dies With A Whimper (Randazza)

Updated (2/11/15): In the decision deeming the appeal withdrawn, there was a comment about a letter dated September 16, 2014. Letter? What letter? I didn’t receive no stinkin’ letter.

So I procured it from the court. And what do I find? That Rakofsky had (via his counsel) withdrawn his appeal with that letter, based on the fact that he wasn’t going to get a settlement conference.

But they never sent a copy to us, as required. Or, apparently, anyone else. In a case now legendary for fouling up just about every possible procedural rule, it is an ending that is, I think, just perfect. Here’s the letter:Letter withdrawing appeal 9.16.14

The Day Gossip Died (Updated)

NY Post-TurkewitzMany strange things have happened to me as a result of this blog. I’ve been on the side of a bus, punked the New York Times in an April Fool’s gag, and found myself on the editorial page of the Wall Street Journal.

But my name in boldface on the legendary Page Six of the New York Post? Me?! Get outta here!

Page Six is where Paris Hilton was born. It’s where Kardashians and Lohans live. Where celebrities of all types go to die, both metaphorically and literally. It may be the nation’s top tabloid gossip column. Or so I am told.

According to this Manhattan Media profile:

It launches books and movies, sells magazines, and makes and breaks restaurants, reputations and sometimes marriages. It has followed the exploits of Hilton and Pamela Anderson and broken news of scandals that became Page One stories. It got the first scoop on Marla and Donald, and more recently on Ellen Barkin throwing water at Ron Perelman at the Waverly Inn. In the world of politics, Page Six has uncovered former Secretary of State George Schulz’s posterior tattoo and the rift between Presidents Carter and Clinton, and it had a field day with the “portly pepperpot” that Clinton “canoodled” with, aka Monica Lewinsky.

What did I do to deserve such disgrace an honor!?

The article I was boldfaced in was, ostensibly, about recently arrested New York State Assembly Speaker Sheldon Silver. In order to make news, Page Six Grand Poobah Richard Johnson discussed — are you ready to follow these connections? — that Silver simultaneously worked for Weitz & Luxenberg as a rainmaker.  OK, we knew that, it’s all over the news.

But he also writes that Perry Weitz (and the feds haven’t brought any charges against him or his firm) once worked for Weitz’s father-in-law, Morris Eisen. And Eisen was disbarred for little things like using a pick ax to make a pot hole bigger, or smashing a car with a sledge hammer to make the dent look bigger.   I wrote about Eisen six years ago after he was himself hustled by Bernie Madoff.

Back then I noted:

“Murray Eisen the hustler has now been hustled by Bernie Madoff. Don’t expect me to shed a tear for either of them.”

So the Post pulled that quote from my post six years ago, about Eisen being hustled by Madoff, to attach to a wholly unrelated story about Sheldon Silver. Exciting, huh!

Did you follow that trail?  Silver is connected to Weitz who is connected to Eisen who is connected to Madoff! I keep waiting for the connection to Kevin Bacon.

But we all know what these three degrees of separation really means, don’t we? It means there weren’t any celebrities that could be found over the weekend that entered rehab. Or got married. Or punched out a photographer. Or “inadvertently” let a booby slip loose. Or were photographed eating a cheeseburger.

When Page Six sinks so low for stories that it uses me as boldface then you know we have a problem in the gossip industry. Let me be the first to say it: Gossip is dead.

Photo credit: Swarm of Photographers

Photo credit: Scrum of Photographers

Or so I thought, until I found the scrum of photographers on my front lawn when I got home last night, itching for more on the Silver to Weitz to Eisen to Madoff connection. But as you can see from the photo here, I wasn’t quite ready for my closeup.

I know how this works: We live in a world that has gossip, and gossip must be written by men with keyboards. Who’s gonna do it? You? You, Lt. Johnson? I have a greater responsibility than you could possibly fathom. You weep for …

Oh, crap, that meme won’t work…but the film does have Kevin Bacon.

I’m on Page Six. The world is a funny place.

Update: To those spreading rumors about me with Bethenny Frankel, please stop. My wife reads this blog.

Roca Labs, Snake Oil and Randazza

RocaLabsLogoI’m on a roll lately writing about idiotic defamation cases, so I might as well do one more. I’ve ignored this one until now. And no, this isn’t about me.

It’s about irreverent First Amendment badass Marc Randazza being sued by Roca Labs.

Who/what is Roca Labs? It makes a weight loss product. And you what that means?

It means that some folks will call it bunkum, tommyrot and malarkey, say it’s snake oil, and challenge its effectiveness. The owners will undoubtably be called frauds, con men, quacks, hustlers and charlatans, and some may even call them bad names. And that’s before knowing anything else about the product or the people peddling it.

When you combine weight loss potions, tonics, goos, mixtures and other concoctions with free speech, that kind of thing is to be expected.

Yes, my friends, I’ve whipped out that thesaurus again and I’m trying to make good use of it.

Where was I? Oh yes, snake oil. Even Dr. Oz is not immune from such attacks for pitching weight loss products. Just Google Dr. Oz snake oil weight loss and see what you get.

And so it happened that someone gave a negative review of the Roca Labs product on a gripe site called PissedConsumer. I know, I know, you are shocked! Shocked! That such a thing would happen.

But rather than take it in stride, or correct any possible mistakes, the company foolishly brought a lawsuit trying to rid the site of the bad review. The company claimed that, in exchange for a “discount,” buyers of the product agree not to make disparaging comments about it, and that this was “tortious interference.”

So they sued PissedConsumer, despite the fact it is immune from suit under Section 230 of the Communications Decency Act, which protects websites (mine included) from being accountable for the comments that are left on them.

Randazza came in to defend in his own inimitable and very colorful way.

Do I have to tell you what happened next, dear reader? Now people who had no idea that PissedConsumer or this review even existed learned about it.

When Randazza — my attorney in the Rakofsky v. Internet suit — wrote about it, Roca asked him to please stop. As you might guess, asking a First Amendment lawyer to surrender his own First Amendment rights gave Randazza a chuckle. He published the Roca missive.

And then, having not humiliated themselves enough by bringing the first suit, and by trying to get Randazza to surrender his own rights, they decided it would be wise to then sue Randazza. Really, you can’t make this stuff up.

I went through the Complaint looking for the reason for the suit — that is to say, some actual words that Randazza used that are false facts and, therefore, might be defamatory. Because that is what you need in a defamation case, false facts. Being mocked and ridiculed, it may surprise you, won’t cut it in a free speech society.

What I found was them quoting a satiric Halloween tweet from Randazza:

“Some fucker put Roca Labs’ shit in my kids candy bag!”

It took them 38 paragraphs to actually get to this. And from there went on to cite Techdirt and BoingBoing articles that Randazza didn’t write that ripped on Roca. The complaint also cites to portions of briefs Randazza wrote, which I thought was downright silly since there is a litigation privilege  with respect to such legal filings.  That means you can’t bring a defamation action over them. (See analysis by Adam Steinbaugh)

If there is a cognizable claim in Roca’s papers, I sure can’t find it.

This suit is destined for the trash heap of history. And you know why I know this? Because so much of this complaint is filled with crap.  If you want to be amused, look at paragraph 80 where Randazza is “accused” of mocking the Roca Labs legal team.

By putting this in the Complaint Roca has shown that they don’t need Randazza to horsewhip them; they do just fine with self-flagellation.

They also spend some time discussing some of Randazza’s other First Amendment clients, including various pornographers. Apparently, giving legal counsel to those that need it is frowned upon by Roca.  Go figure.

Over at Popehat, Ken White notes about the Complaint in a post titled Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza, that:

Roca Labs complains that Randazza’s purpose is to “mock, ridicule, humiliate, harm, and continue his war against ROCA,” but that’s not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn’t explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term “snake oil,” they’d have to confront the fact that the phrase is obviously protected opinion.  See, e.g.Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”).

Many others have now written about this, I’ve provided some links below, and you can Google “Roca and Randazza” to get more. That might not be as sexy as Bogey and Bacall, but it’s certainly amusing.

While others have written about this, and I hate to do “me too” postings,  I write anyway because I think it’s important that when people sue with the intent of silencing their critics, that others take note and expose the attempted censure. And I think that silencing the criticisms is exactly what was intended.

This, by the way, just scratches the surface on much of the weirdness, threats and lawsuits that are going on.

Elsewhere:

Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt (Techdirt, one of 17 stories it has on this weirdness)

Roca Labs Sues Marc Randazza For Defamation (Adam Steinbaugh)

A Case That Will Want to Make You Gag (Above the Law)

Weight loss firm demands $1 million from website hosting negative reviews (Ars Technica)

Je Suis Charlie

It'sHardToBeLovedByIdiots

Translation: Mohammed overwhelmed by fundamentalists
Bubble: It’s hard to be loved by idiots

Two of the cartoons on this page are caricatures of the prophet Mohammed. Before yesterday, I couldn’t imagine circumstances where I would publish them, both because this blog doesn’t deal with religious issues and because such caricatures are offensive to Muslims.

I just don’t run around looking to insult the religious beliefs of others. To each their own, so long as it doesn’t impact others.

But I also write and publish and enjoy the magnificent freedom of speech. I’ve been discussing that subject a lot recently, though that was due to attempts to silence by force of law, not guns.

There’s no doubt that the horrific assault yesterday on the sharply satiric French political magazine Charlie Hebdo is not just an assault on all writers, but an assault on all that believe in free speech.

It doesn’t matter if we approve or not of the content of the magazine’s speech. That has nothing to do with the right to publish it.

What if we allowed ourselves to be intimidated into silence by force of guns on the subject of religion? What other subjects would be next? And who gets to make those decisions?

If we do not stand up to people now that wish to take away the fundamental right to express opinions, then when will it happen? And if not us, who then?

The answer to speech with which we disagree is more speech, not less.

I-Am-The_prohpet

Translation: “I am the prophet, asshole!” “Shut up, infidel!”

I think that the vast majority of Muslims are appalled by what has been done in their name. And now, because a small group of people have bastardized their religion, they see these depictions getting widespread dissemination.

We must, however, choose between the lesser of two evils. Do we remain silent in the face of violent attempts to censure, or do we speak out and insult perfectly innocent people in the process?

But there seems to me to be little alternative other than to stand up to evil, and the sooner the better. I suspect that those innocent Muslims know this all too well, as the militants within their religion may have killed thousands of Jews, Christians and Hindus around the world, but mostly they have killed their fellow Muslims. And done so by the millions.

The slaughter yesterday, and the need to respond, reminds me of a poem:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Let’s hope that the pen is indeed mightier than the sword. You can see a wide selection of cartoon responses compiled here and here. But this is the one that I will close with, from Philadelphian Rob Tornoe:

RobTornoe

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