The anonymous Editor of Blawg Review has opened nominations for Best Blawg Review of the Year. The nominating is open, according to his rules, only to those that have hosted one of the past 140 Blawg Reviews or those that have already signed up for a future one. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

The editor is looking for a peer-reviewed award (or as close as the legal blogosphere can approximate), as opposed to a popularity contest.

Since he points out, quite rightly, that such "best of" awards are so highly subjective, I'm going to participate and nominate by listing those reviews that inspired me when I wrote my marathon themed Blawg Review #134 this year. The editor's recommendations of some of the presentations that might be considered for nomination, which include mine, are up at Virtually Blind.

In listing these reviews, I tip my hat to each as I borrowed ideas and concepts from each writer and stood on their shoulders to create my own:

#89, The Mummers Veil by the anonymous Editor himself, inspired me to indulge in fantasy visits with different bloggers. A rigid regard for the truth, I understood, was not necessary to presenting the best posts of the week. The point was to simply point to good law blog posts, making it available in a fun, creative way. Doing so in the context of a story often makes it more interesting (if you can pull it off without being "annoying, strained and distracting" as David Giacalone once wrote).

#101, from Diana Skaggs at The Divorce Law Journal, based on the Kentucky Derby. Since I had decided one month earlier to host a November review based on the NYC Marathon, a review based on the Kentucky Derby certainly caught my interest. She galloped through the legal blogosphere in winning fashion in a creative review that clearly was long in the making. I loved watching her mid-stride integration of law and racing.

#106 from Brett Trout at IT Blawg was based on a motorcycle race track. With another racing review, I took mental notes on how different parts of a race course, or different concepts, might be used to help introduce different legal topics in a very non-traditional manner.

#127, from Anne Reed's Deliberations, was based on jury selection. As a trial lawyer that obviously appeals to me, and I watched as she took 17 different selection tips and matched them to posts. In her review however, she didn't just link but went into the personalities of the posters to match them up with different concepts.

#137, by Colin Samuels at Infamy or Praise, was based on the third part of Dante's Divine Comedy, Paradise. While #137 came after my own, the Inferno themed #35 and the Purgatory themed #86 came before. In these, Dante travels with his guides, the poet Virgil and later Beatrice. This inspired me to add a guide of my own -- Marty, an alter ego or one-man Greek chorus -- who ran the race with me and would drop in from time to time to comment. While I couldn't pull off the wonderful literacy of Colin's pieces, his posts were there to remind me that the bounds of a review are limited only by the creativity of the mind.

Two final notes on the Blawg Reviews:

First, while the editor has an interesting idea with the nominating process, the reality is that many folks are out of town for the long holiday weekend. I'm guessing the nominating will therefore be very light. Having a yearly award in April would have a much better response rate. Yeah, yeah, I know. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

Second, it seems that the vast majority of reviews are written by practicing attorneys. Professors are notably absent. (In fact, professors rarely even acknowledge their existence, an exception being Prof. Dan Solove and his band of merry Concurring Opinionators for #75.) I haven't figured out why yet, since the primary purpose is to simply round up interesting blog postings, and their own postings are often included. Is there a reason professors are less likely to let their hair down and go outside their usual comfort zones?

Labels: Blawg Review, Blogging

The Manhattan steam pipe explosion from this past summer was in the news again today. The explosions, just two blocks from my office, resulted in one death, many injuries, and more than a few frayed nerves. (The explosion was at 41st and Lexington, I'm at 40th and Park.)

The New York Times reported that a million dollar study done by Con Ed found that the explosion "was caused by a combination of heavy rainfall, leaks in underground water and sewer pipes and debris that clogged two critical devices designed to let water out of the steam main."

Labels: Con Ed Explosion, Personal Injury

Personal Injury Law Round-up #42 is up, as Brooks Schuelke is up to the task of finding PI legal news in a very slow news week.

And here is one more (that appeared after Brooks did his round-up):

A lawsuit about Starbucks serving hot coffee to a baby (The Consumerist).

Labels: Personal Injury Law Round-Up

Is yesterday's headline a real issue, is it a scare tactic from the Superintendent of Insurance, or does it come from the NY Sun taking something out of context to help push immunity legislation for doctors?

The headline in the Sun reads: N.Y. Doctors Could See $50,000 Fee: 'Surcharge' Would Rescue Malpractice Insurers.

The scary headline comes from an interview with Superintendent Eric Dinallo, who is running a task force to address the insurance "crisis" that hit when New York jumped its medical malpractice premiums 14% this year. The reasons for the jump are an issue I addressed earlier, and are a function of state mis-management during the George Pataki years (see: Why New York Medical Malpractice Insurance Jumped 14%.) Among the many reasons were artificially low rates (set by the state) and Governor Pataki taking (with legislative approval) about $700 million from a malpractice rainy day fund to help balance the state budget.

The screaming headline in the paper (front page, above the fold) it should be noted, had nothing whatsoever to do with rising malpractice claims or payouts. Those have remained stable for many years. No, the reason for the headline is the state-created shortfall, and the ways they are trying to fix the system they broke.

One method of trying to "fix" the system, of course, is to break it further by trying to blame lawsuits for the problem. We see these types of complaints all the time. If only the health care workers would be given some form of immunity for negligence, it is argued, all would be well with our health care system. Because, as everyone knows, nothing forces a person to act responsibly better than grants of various forms of immunity or protection.

Public Citizen recently put out a report on the faux crisis. It is a devastating indictment of the state's mismanagement and puts to bed the phony claims that problems are related to lawyers and lawsuits. It also points the finger where it belongs and makes its own suggestions on how to remedy the problems.

Some more facts from the Public Citizen report:

• There have been fewer medical malpractice payments in the past five years than in any five-year period on record;
• Amounts paid out, when adjusted for inflation and population, have either risen slightly in the past five years or declined slightly, depending on the measure used;
• Only about 1 percent of New York's doctors are enrolled in the state's program for physicians deemed too risky by commercial insurance providers. Yet these doctors' payments have been so massive that they and other losses have drowned the program in more than $500 million in red ink this decade;
• A sliver of doctors are responsible for nearly half of the dollars paid out for medical
  malpractice in New York. Physicians who made three or more malpractice payments
  between 1990 and 2006 -- accounting for no more than 4 percent of New York's
  doctors -- were responsible for nearly half (49.6 percent) of medical malpractice
  dollars paid out on behalf of doctors in the time period.
  
• Costs for cases involving brain damage, blamed by some for rising insurance rates,
  are in fact modest in comparison with other types of cases. The category for injuries
  including brain damage ranks 5th of 10 in total amounts paid out. This fact exposes
  the lunacy of the radical proposal to deprive newborn babies of their legal rights and
  cede their care to a state-run fund.
• Researchers have found that premiums consistently make up only a small percentage
  of doctors' total expenses and that rising premiums have not, historically, depressed
  physicians' incomes.
  
  

The state's Department of Health's Office of Professional Medical Conduct has been notoriously lax when it comes to doctor discipline. Just last month it was revealed that it waited three years to alert hundreds of people that a doctor had been reusing syringes with multi-dose vials, thereby contaminating the vials and exposing hundreds of people to infections. According to the Public Citizen study, New York's comptroller found that the Office of Professional Medical Conduct failed to investigate about 175 doctors for whom investigations should have been triggered based on the agency's existing criteria.

Frankly, if we have an insurance crisis because the state took $700 million to balance the budget in tough years, and we have a small percentage of doctors responsible for so much of the damage, then it is a no-brainer on how to equitably fix the problem. It isn't by a $50K surcharge on doctors, a scare tactic if ever I saw one. And it isn't be restricting access to the courts for those that have been injured by negligence.

It's by doing two basic things: Taking the money back from the general fund where it had disappeared to and investigating the few bad doctors that do so much of the damage and putting them out of business. It means a responsible government engaging in good health policy by policing the medical force and using sound budgetary policy instead of shell games.

Fault here lies not with the vast majority of doctors, nor with the patients that were injured or their representatives. It lies with former governor and the legislature. The problems have been identified and the proper solutions offered. The state should do the right thing and fix the problem appropriately, without injuring those that are most involved.

Labels: Medical Malpractice

Scott Greenfield is perplexed. He's a top-notch criminal defense guy with more years of trials and appeals under his belt than he probably cares to count, and doesn't understand why BigLaw is paying obscene amounts of money to young associates who are years away from gaining actual, useful experience.

Scott writes, with salaries now approaching $200K (actually way more when you count the bonuses), that the ridiculous numbers now being paid are surely the thing that will drive business away from BigLaw and into the hands of the solos and small practitioners. "First year associates are near useless as lawyers," he writes. "They are incapable of producing useful legal work, and at best churn out wasteful hours of memos stating the obvious at great length in order to produce the requisite number of hours. Sure, they think they're doing a bang-up job, but that's only because they have no clue of the utility of their efforts."

While it's understandable that newbie lawyers will go to these places to put in their 2,000+ billable hours a year, have no life, rake in the dough and get little useful experience if they actually intend to litigate cases, it doesn't explain why the clients hire them.

But that part is easy. Clients often hire BigLaw for one reason: Because the person that does the hiring knows that no one will ever second guess them on trying to find "the best." They don't have to actually be the best, of course. It's like the old Wall Street saying that no one ever got fired for buying IBM. It didn't have to be the best stock, and the BigLaw firm doesn't have to be the best firm. But the person that does the hiring knows that they won't lose their job with a BigLaw pick, but that picking a firm with "only" 100 lawyers, or heaven forbid, just five lawyers or a solo, opens them up to criticism if things go wrong. The fact that the smaller firm might be able to do twice the job at half the price doesn't really factor into the equation.

It's just the age-old game of CYA. Nothing more. Nothing less.

Labels: Odds and Ends

I had an accident on a local parkway on December 7th that I wrote about, after a car stopped suddenly in the left lane, I stopped, and was then rear-ended.

So here is the end of the story: There were no injuries of any kind to anyone that I know of. The little twinge I felt the night of the accident was just that, a little twinge of zero significance.

As to the property damage, my loss was covered 100% by the car that plowed into me. This isn't always the case, as new blogger Jim Reed discusses today.

Since I occasionally take my shots at various insurance companies on this blog for various acts of malfeasance, then fairness dictates I should also acknowledge a company when it does the right thing. The car that hit me was insured by Liberty Mutual.

Labels: Car Accidents, Insurance Industry

Two law blog items:

First, if you didn't get enough Christmas yesterday, you can go back for more with the Christmas Eve themed Blawg Review #140 presented by Jonathan Frieden at E-Commerce Law. Frieden mixes commerce and Christmas with law blogs in his 12 Days of Christmas (plus stocking-stuffers).

Next up, Dennis Kennedy gives out his 2007 "Blawggies" for the best law oriented law blogs, and gives one to "niche blogs" as the most important trend. What is a niche blog? According to Kennedy, they "have titles like [State Name] [Practice Area] Law Blog."

While it's an interesting concept, it seems that the vast majority of law blogs actually fall into the category of "niche" once you get past the name, including his own on law technology and the one for best blawg about blawging (to Kevin O'Keefe, of course), among others he has chosen. As a percentage of the legal blogosphere there are really very few law blogs that focus outside of a niche.

While it's true that some blogs have descriptive names, such as this one, this is often done to give new readers a quick overview of where they landed. But it isn't the name that creates the niche but the content. If I used my name for a title instead of my practice area, would I no longer be a niche?

Labels: Blogging

Headlines like this always catch my eye: PUTTIN' $1M BITE ON DOG 'OWNER'. It comes out of the New York Post and catches my eye for the obvious reason that NY personal injury law is my thing, and therefore the headline screams out something to me that the casual reader doesn't see: The attorney who brought the million dollar lawsuit doesn't really know personal injury law.

How do I know this? Because in New York you aren't allowed anymore to make that monetary demand for damages when you file a lawsuit. (See: New York Cleans Up Claims Act.) We dumped that idiotic rule in the mid-80s for malpractice suits and dumped it in 2003 for the rest of the personal injury suits.

A read of the article shows absolutely nothing remarkable about the suit except for two things: The amount claimed and access to a publicist to pitch the story based on the very tangential pseudo-celebrity "news" that the defendant is a former wife of Morton Downey, Jr., a deceased talk talk show host who used a trash talk format.

I'm tempted to write about the story barking at me, it's a real woofer, etc. but I find little humor when I see such headlines that ultimately disparage the profession, since the article doesn't specify any damages worthy of such a demand. Moreover, such articles alter the perceptions of potential litigants to unreasonably think that every claim will result in a million dollar result. The law just doesn't work that way.

Labels: Personal Injury

Personal Injury Law Round-Up #41 is up at Perlmutter and Schuelke. As always with great links, and a particular emphasis this week on tort "reform" and attorney advertising.

And now a great challenge ahead...how will Brooks Schuelke find enough links during the two holiday weeks ahead?

Labels: Personal Injury Law Round-Up

The Center for Justice and Democracy sends some must-read "fanmail" to the American Tort "Reform" Association, based on its "dishonest" Judicial Hellholes "report," which essentially surveyed its own big business membership to find out which jurisdictions were least likely to afford immunity for negligent conduct (via TortDeform);

Legal Literacy hosts Blawg Review #139;

Law, risk and insurance meet up at the Cavalcade of Risk, hosted by American Consumer News;

David Harlow hosts the Health Wonk Review at HealthBlawg;

CIGNA Insurance waffles on a liver transplant for a girl, and she dies. (The Consumerist);

The Vioxx setlment is showing cracks, as some of the plaintiff's with better cases are opting out (Pharmalot) and the lawyers face the predicted ethical issues of recommending settlements (Ted Frank at Point of Law rounded up the posts on November 13th, at the 9th bullet point);

NYT--Study Shows Marathons Aren't Likely to Kill You (whew).

Labels: Random Notes

Orin Kerr at the Volokh Conspiracy thinks that legal blogosphere has hit its saturation point. He couldn't be more wrong.

Kerr writes, without citation, that "For the most part this was a year of little growth or even a slight decline among law blogs."

I thought that was crazy when I read it, but then I saw Dan Solove at Concurring Opinions agree with him. He also did so without citation to any empirical data, other than his group's own traffic and that traffic has almost doubled in the past year! But, he goes on to say, that the big will just get bigger, and the little niche guys (like me or Scott Greenfield who also clearly disagrees), won't really go anywhere. He writes, "There are so many blogs that a person can read, and many folks have found their favorites now and are content," as if the number of blog readers is some static number instead of a dynamic one. His opinion on the future doesn't even mention the practicing lawyers who are opening up their own internet outposts.

Now I know that real data is hard to come by, so I'm not too critical, but I think these professors need to look outside their ivory towers.

Here is why they are not just wrong, but very, very wrong, and here is what you will see in the future:

First the present, from my own niche: According to Justia there are 33 New York blogs. The ABA Journal's Blawg Directory lists 41 New York blogs. According to the ABA, however, there are 147,096 lawyers in New York. I, for one, see a bit of room for growth with that disparity.

But wait, there's much more. The New York State Trial Lawyers Association has about 4,500 members that handle predominantly personal injury matters. There must easily be 10,000 lawyers in New York who handle them (or think they can handle them) as many are not members. Yet I can count on one hand the number of my brethren covering the subject on blogs.

Rather than being saturated, I think the legal blogosphere is in its infancy.

Now here is the future: There are precious few (if any) group blogs for practicing lawyers. The group blogs belong to the law school set. This will change. Someone, perhaps myself, will start gathering in more practicing lawyers for a group blog, perhaps modeled on the Huffington Post (TurkewitzTimes, anyone?) These lawyer/bloggers will be collected through the growing use of listserves, where small practitioners share tips. It is the perfect format for those who want to opine occasionally without the need to keep their blog up constantly. There will be several of these, and they will rival anything that currently exists.

Saturated? Stagnant? Profs. Kerr and Solove (and David Hoffman before that), you guys ain't seen nothin' yet.

Labels: Blogging

Today I try an experiment. I took a small camera with me to Supreme Court in Queens for a conference with the idea of creating a small photo essay. Will I repeat this? Beats me, but many lawyers never see the inside of a courthouse. And documenting a court's life and times might be fun. And no one else is doing it. At right, the subway sign exiting the F train at Sutphin Boulevard.







At left, the courthouse as viewed from the north. Form time to time, repossessed homes are auctioned off on the courthouse steps.














At right, the courthouse entrance. They really don't build them like this anymore.
















At left, Justice Augustus Agate conferencing today's case in chambers. My thanks to the judge for permitting the picture. Unfortunately, the more informal photo of the judge without the robe was blurry, and that is the one I really wanted since that is the way such conferences often take place.









Subway sign. Heading back to the office.

A typical morning in the life of a trial lawyer.

Labels: Photo Essay

"I am not aware of any rule or law which requires civility between counsel" (Thomas B. Decea, Esq.).

So begins the decision of Justice Carol Robinson Edmead in New York Supreme Court, bench-slapping but good local lawyer Thomas Decea who, during the course of a deposition, referred to opposing counsel Michelle Rice as "dear," "girl," and "hon," among other transgressions. And when asked what he meant by "hon," he oh so wittily replied, "As in Atilla." Ho, ho, ho. He also thought it would be cute to ask her if she was married. What a card. And when the motion came in to have a referee appointed for future depositions, he actually claimed to be ignorant of the rules requiring civility.

Decea's response was that Rice was asking leading questions.He then used that as an excuse both for his verbal assault on Rice as well as for directing his witness not to answer her questions. Compounding Deceas's incivility was the fact that he kept interjecting himself to help coach the witness with answers. An attorney defending a deposition in New York, however, has no authority to stop a question because it is leading and may not use speaking objections to coach his witness how to answer, except with some limited exceptions where the question is palpably improper (When did you stop beating your wife?). So in addition to be abusive, he was also dead wrong on the law.

Anyway, attorney Decea is ignorant no longer. The good judge has set him straight, in an opinion that is now available online, telling him that, "Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable." Justice Edmead went on to tell him that and an attorney's "conduct ... that projects offensive and invidious discriminatory distinctions ... based on race ... [or] gender ... is especially offensive." Much of the colloquy is quoted in that link.

She appointed a referee for future depositions, but did not sanction him (the motion was only for the referee, though she could have sanctioned him on the court's own motion). Personally, I think the judge was being too kind to him, though the sanction of the opinion being available online for future clients to read may well be more profound.

Ironically, the case deals with attorney malpractice.

[After publishing, I noticed that Nicole Black also covers this decision at Sui Generis: Lawyers behaving badly]

Labels: Attorney Ethics

Thus far, I've managed to avoid politics in this little spot except as it pertains to my niche of the law.

But no more!!!

Adams and Jefferson are in a tight race for the presidency, and the negative spots have started...


(hat tip, Respectful Insolence)

Labels: Odds and Ends

Seattle personal injury attorney Michael Meyers has admitted that the uses his "blog" for client solicitation, placing the names of accident victim in the subject heading in the hopes they will find the posts and hire him. The matter was covered last week by Kevin O'Keefe: Personal injury lawyer blogs injury victims' names in hope they call his office. This follows on the heals of identical conduct in Missouri that Kevin and I both wrote about: Personal Injury Lawyer, Ryan Bradley, Using Blog for Blatant Solicitation.

This post now deals with the ethical issues of using a "blog" post as a form of solicitation by attorneys. I place "blog" in quotes since they aren't really designed for discussion and commentary, and certainly don't interrelate in any fashion with others. These pieces simply discuss routine accidents in the area, and write about them with as many names and buzz words as possible with the hope that the injured person or his/her family or friend will find it and call.

While these lawyers are an embarrassment the profession, the question remains, is the conduct an ethical violation?

Approximately ten states have anti-solicitation rules of some type. New York dealt with this recently when a federal judge struck down in Alexanxder v. Cahill many of New York's contentious new ethics rules. The decision discusses many of the anti-solicitation rules from other states. Notably these provisions in New York were left intact. The New York definition of solicitation (as opposed to ambulance chasing, which involves direct contact in person, by phone or by real-time electronic communication) is here:

N.Y. Comp. Codes R. & Regs. tit. 22, §1200.8:
(b) For purposes of this section "solicitation" means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

(g) No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

It would seem, therefore, that such conduct in New York would clearly be a solicitation subject to the rules and violate the rules unless a filing were made.

Now Michael Myers of Seattle has admitted to solicitation, though he does so in Washington. He concedes at this post (link via a TinyUrl re-direct)* that he writes "with the intent of reaching accident victims or the people who care about them." He says that "...I want them--or someone who cares about them--to call our office and get the help they deserve rather than being manipulated by a well trained adjuster to settle their claim short of full value. It's as simple as that."

The exact same logic, of course, can be used to trail an ambulance to the hospital door. At least he admits to being shameless.

The ABA's Model Rules of Professional Conduct and the New York Lawyers Code of Professional Responsibility will govern the various states. All the state rules can be found here.

Under the model rules we head to section 7 to see what applies.

Rule 7.1 deals with false or misleading communication about a lawyer or the lawyer's services. Nope, that doesn't apply, since the postings simply relate the accident details and then scream, in one fashion or another, call me!

Rule 7.2: (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. OK, this is the place to be. It comes as no surprise that lawyers are allowed to advertise, but are these particular ones ethical?

Rule 7.3 deals with direct contact with a client. In essence, this is the definition of ambulance chasing:
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.

And then there is Section (c) of Rule 7.3:

Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

It would seem that because this comes under the heading of "direct contact" that the lawyer need not state that the blog solicitation is an outright advertisement directed to a particular individual. The blog solicitation is, almost by definition, indirect.

So while the conduct of the lawyer leaves much to be desired, it would seem to steer clear of these ethics rules. Whether a lawyer's own jurisdiction has separate solicitation rules is another matter.

Now I know what you're thinking. What of the First Amendment? The blog postings are written, after all, in the style of a news item. And there can thousands of shades of gray in this arena as lawyers ostensibly write about a specific accident, and then write, "Oh, by the way, if you or a loved one has been hurt, blah, blah, blah."

The Supreme Court weighed in on this subject in 1995 regarding a direct mail solicitation within 30 days of an accident in Forida Bar v. Went For It. The court determined that while attorney advertising is protected speech (Bates v. State Bar of Arizona), "[s]tates have a compelling interest in the practice of professions within their boundaries, and . . . they have broad power to establish standards for licensing practitioners and regulating the practice of professions. The Court also notted that the State has substantial interests in protecting the privacy of its citizens and guarding against the indignity and offense of being solicited for legal services immediately following a personal injury or wrongful death event.

But constitutional regulation doesn't come easily in the fields of gray. And I think that not only don't the current ethics rules govern the conduct, but even if they did, it would be relatively easy to write a news item in such a fashion as to place the blog posting in the gray area of what constitutes solicitation.

In the New York ethics decision from this summer that struck down as unconstitutional certain of the rules, but kept intact the anti-solicitation rules, Northern District Judge Frederick J. Scullin bemoaned the ethics issue in a footnote that, "Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous." He went on to write that, "As a result, among other things, the public perception of he legal profession has been greatly diminished."

But identiying problems and offering solutions is another matter. Judge Scullin wrote, "Although the Court finds it commendable that the Appellate Division of the State of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence."

Does this mean that the conduct will continue and worsen? Not necessarily. For while Missouri lawyer Ryan Bradley and Seattle lawyer Michael Myers may choose to walk the undignified line they have drawn, others will no doubt write about the sleazy nature of blasting the names of victims in their headlines in the hope of being retained. And because others have written about it on the web, prospective clients that Google the offending attorneys (and that, after all, is how the prospective clients found them) will find these posts questioning their ethics. What the web giveth, the web also taketh way.

Other posts on the subject:

• Law Blog Legal Ethics: Personal-Injury Lawyer Advertising (WSJ Law Blog);
• The Blawgosphere Hits a New Low (Simple Justice);
• Personal injury lawyer blogs going too far? (Real Lawyers Have Blogs);
  
• Personal injury law blog ethics picked up by WSJ and bloggers (Real Lawyers Have Blogs)
• Great Moments in Client-Chasing (Overlawyered)
  

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*This link is via TinyUrl. Often used in discussion forums to shortern cumberson URLs with a shorter link, it has the side benefit of masking the original URL of the offending post so that it will not get the benefit of any additional pagerank from Google.

Labels: Attorney Ethics

The New York State Board of Law Examiners has confirmed to me that they will hear appeals regarding the July 2007 exam. That exam was plagued by malfunctioning software for those that submitted essays on laptop computers, only to see all or part of the answers disappear. (See: New York Bar Examiners Still Can't Find Complete Essay Answers.) The BOLE subsequently said that they approximated the answers if they were incomplete, based on how the examinees did on other answers. (See: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers). Those grade approximations were subsequently called into question based on an anonymous tip in this blog. (See: How, Exactly, did New York Grade That Bar Exam?)

The appeals, which must be submitted in writing, will be heard by the Executive Director, John McAlary.

My call to the BOLE was prompted by prior comments and personal contacts, which ultimately resulted in the guest blog that now follows. This appeals process, to my knowledge, has not been previously documented.

Bar examiners with a secret appeals process. Who'd a thunk it?
---------------------------------------------------------------------------------------

By "Anthony"


I sat for the July 2007 bar exam in the laptop program. Prior to the exam I downloaded the software and completed a practice test with no problems. The morning of the exam, the software crashed as I was writing essay one. A technician restarted my laptop and I completed essay one. I moved on to essay two and about halfway through, the software crashed again. I called a technician to restart the computer, and fed up with the situation, decided to finish the exam in the answer booklet. I started handwriting the exam, finished my response to essay two in the answer booklet, and moved on. Towards the end of the morning session, I found myself with a little time. The technician had restarted my computer while I was still handwriting my answers, so I decided I could review what I had written on the computer or at least make sure everything was there. When I attempted to look at what I had written on the computer, I discovered that the program had duplicated what I had written for essay two, and overwritten it and replaced my response to essay one. As if it wasn't bad enough having the software crash on me while I was trying to write the exam, now I discovered that a whole essay had apparently been erased by the software. I called this to the attention of the technicians, who physically took my laptop to another part of the room and worked on it for the rest of the day. The whole incident was frustrating and frightening and made it difficult to concentrate and complete the exam. When I think back, I am actually proud that I went back that afternoon and finished the exam. I finished the rest of the bar exam and was told by the technicians and the head proctor that there was some type of backup system with the software and that they would be able to retrieve my exam. Obviously, I had no faith in the software company and spent the next few months worrying whether my essay had been lost.

Toward the end of August, I received an email from the software company requesting I upload additional files. I did that and received a confirmation from them. About a week later I received an email from BOLE stating they were in receipt of my printed and/or handwritten responses to all the essays. Still fearful that my essay had been lost, I emailed the software company to double check. I explained that while BOLE claimed to have my essays, I wanted to be sure they had the correct response and what I had actually written. The software company replied and said that they were able to retrieve what I had typed before it was overwritten. I was relieved to hear this and now merely spent the next few months like everyone else, worrying whether I passed or not.

The day the results came out in November, I checked the BOLE website and learned I was unsuccessful on the exam. A few days later I received my official notification in the mail, and learned that I had failed the exam by only a few points. It was then that I began to suspect something, so I ordered copies of my essay responses along with the questions and sample answers. I received these around the beginning of December, and as I looked through my responses I discovered that while the software company had retrieved the answer I had typed for essay one, it was an incomplete version. During the exam, after the technician had restarted the program, I completed my response to essay one. The answer BOLE sent back to me clearly trails off mid sentence in the analysis portion of my response and is clearly incomplete. Further, I had begun typing my response to essay two on the computer, and when I looked through my responses from BOLE, only the handwritten second half of the response was present. The handwritten portion of this response contains only a few sentences of my conclusion and is missing my recitation of the relevant law, and all my legal reasoning and analysis.

I began calling BOLE to see where the rest of my responses were. After about two weeks, they finally told me that whatever they had sent to me was all they had. The secretary I spoke with asked whether I had written to request a 'review.' I asked her why I would have done that when the Board's stated and official policy is not to entertain appeals of the exam results. I was only told that I should put a request in writing. Later, as I attempted to draft the letter, I called the BOLE office back to get some instruction on exactly what I should request. I spoke with the same secretary and said that I wasn't sure what I should say and what I should expect or request from the Board. I again asked what exactly this review was and what was to be expected since the Board states there is no appeals process. Finally, the secretary told me that BOLE has been receiving a lot of correspondence from candidate’s attorneys requesting a review, and that the Executive Director of the Board was accepting these requests. I asked her what I could expect out of all this and she said that all she knew was that they would investigate and "try to come up with something."

I drafted a letter to the Executive Director outlining what occurred during the exam, detailing the missing and incomplete responses I received back, and requesting that my exam be 'reviewed' as well. I do not know what to expect from this review, and I do not know what the board will be able to come up with. The bar exam and all the laptop problems was frustrating enough, but to have been told that they had my complete responses and then to discover that what was graded was incomplete and missing feels like a tremendous injustice. I am still waiting to hear back from the Board and I hope that they make some kind of decision regarding this issue soon.
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Update: 2/27/08 -- My pseudonymous guest blogger follows up on the results of his attempt to appeal the decision to fail him:I Passed The New York Bar Exam!!!!

Labels: Bar Exam

Personal Injury Law Round-Up #40 is up at Perlmutter and Schuelke, with some great links on tort "reform," litigation and Supreme Court news, among the picks.

Labels: Personal Injury Law Round-Up

Random Notes is for subjects I want to blog about or rebroadcast, but just don't have the time to do well:

A doctor is accused of sexual assault on his patient, and in order to get the benefit of his insurance coverage, claims it was treatment. The insurance carrier is not amused. (New York Legal Update);

A judge pays off bet with beer (Sentencing Law and Policy);

Blawg Review #139 celebrates Human Rights Day at De Novo;

Health Wonk Review is up at HealthBlawg;

In Massachusetts, the duty of a doctor has now been extended beyond the patient, to those the patient might injure while on the drugs prescribed by the doctor (TortsProf);

Hospital systems should be designed to anticipate human error (NY Emergency Medicine);

The Seventh Amendment right to a jury trial gets analyzed by the Ninth Circuit (Deliberations)

There's a new kid on the block...a brand, spanking new blog from the defense side: Medical Devices: Law, Trends and Oddities

Labels: Random Notes

I've avoided doing a post like this for many months, but figured this is the time as one lawyer seems to have stepped over a line from using his blog for commentary or even advertising and gone to outright solicitation of a particular individual.

Kevin O'Keefe first reported on St. Louis attorney Ryan Bradley discussing a local accident and using the name of the injured person in the post heading, in a rather blatant hope that the injured person, family member or friend would Google the accident to see if anything was written about it, find the post, and call him.

Now he has done it a second time in a week, with this post here **

There are, it seems, four types of blogs, though I am using the word "blog" very loosely here since I don't think it truly applies in either #3 or #4:

1. The pseudonymous blogger. Without a real name and contact information, the blogger writes for pure enjoyment and without any business desire.

2. Blogs that comment on the law and recent events the same way as the pseudonymous blogger, but with a name and contact information. Such a blog might have a beneficial marketing side in making the blogger more prominent in the community and be used as a form of legal networking, though I think most that stick with it do it for the pure enjoyment of writing. This is similar in concept to publishing an article in a legal trade, though it is of course much easier to do and isn't peer reviewed. This represents most of the legal blogosphere to date.

3. Blogs that are advertising. These blogs discuss some general matter of the lawyer's practice, or more likely a local accident, and then scream, "call me!" The personal injury sites have many of these, and the "call me!" works to destroy any actual content that might have been posted.

4. Outright solicitation: I don't know what the Missouri ethics rules are on solicitation, but Ryan Bradley's blog postings clearly fit into the solicitation category. He puts the name of the injured person in the heading and the body, and looked up the accident report and insurance information to post that online also. Thus, he goes beyond the mere advertising, and into outright solicitation of an individual. Even if he is ethically secure on First Amendment grounds, what he has done certainly appears scummy and is a close cousin to sending a solicitation in the mail to the house. Or picking up the phone and calling. Or sending a person to the house. Or the hospital. You know where I'm gong with this. Solicitation is but one step removed from actual ambulance chasing.

I don't have the type of site that awards a "worst lawyer of the day," that is more of an Above the Law type of thing, but if I did, Bradley would surely get it.

The irony in all this is that when folks now Google Ryan Bradley of Missouri in the event they do stumble over his "blog" they will also find out what other lawyers think of his solicitations.

Addendum 12/17/07: Attorney Solicitation 2.0 --- Is It Ethical?

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** This link is via TinyUrl, which will redirect to the blog posting, but due to the masking created by redirection, will not add any Google pagerank to the blog. More on TinyUrl at Wikipedia.

Labels: Attorney Ethics, Blogging

I've had the misfortune of appearing in the Bronx County Family Court a few times in the past. And I've almost blogged about my experiences because they were so horrible.

And by horrible, I mean that the people who appear for family disputes and custody hearings can't even get into the courthouse and to the hearing rooms because of broken elevators. It can easily take two hours just to get to the hearing room. Then the hearings get adjourned until another date because everyone isn't present.

Today, the New York Times has a piece on this very problem, front page of the Metro section, above the fold.

Many law blogs discuss great principles of the law. But principles mean nothing if you can't get in the door to argue your case.

British Prime Minister William Goldstone once said, "Justice delayed, is justice denied." And nowhere is that more true than in the Bronx Family Court.

Labels: Judiciary

Best Buy clearly doesn't like being the butt of a joke. We know this because a group called Improv Everywhere sent about 80 people into one of their New York stores wearing blue polo shirts to stand around. They did not claim to be employees. They just stood around dressed like them. For yucks. Now the lawyer letters are flying.

According to an extensive write up of the escapade, "The reaction from the employees was pretty typical as far as our missions go. The lower level employees laughed and got a kick out of it while the managers and security guards freaked out."

Then, when the stunt was over, they sold shirts. With a parody of the Best Buy logo, seen here above right. So Best Buy sent their first cease and desist letter.

Then someone else blogged about it, at a site called Laughing Squid. And then they got a cease and desist letter for reporting the story, claiming trademark and copyright infringement, which letter they have conveniently put up at their site. And just for the record, the one they got was much fancier than the one that Avis sent to me for using their logo.

Someone ought to direct those folks to that little thing called the First Amendment.

(And to save the Best Buy legal department some time, let me say that I don't sell the shirts, I'm just reporting the story for the other attorneys in the blawgosphere that are interested.)

(hat tip: The Consumerist)

Addendum 12/12/07 -- Best Buy has apologized for the cease and desist letter to Laughing Squid.

Labels: First Amendment

New York's Chief Judge, Judith Kaye, threatened to bring a lawsuit for judicial pay raises in April (New York's Chief Judge Threatens To Sue For Pay Raises).

Then she changed her mind in July (A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat).

Now, according to this AP report, she is once again threatening a lawsuit (NY's chief judge says she may sue over judicial pay raises, via Judicial Reports).

What, exactly, is the rest of the state's judiciary to think?

Labels: Judiciary

See that clamp to the right? It was left inside a patient. Think it's unusual? Studies show that about 1,500 times a year surgical objects are left behind by mistake in the U.S.

This, of course, isn't supposed to happen. The surgical team is supposed to count all that goes in, and then count all that comes out. If the counts don't match, something is wrong.

The prior technology to find the missing equipment, which is most often a sponge or pad, is to have a radio opaque filament inside so that it shows up on an x-ray. An example of that can be seen at the film below left. (Some folks collect baseballs, some collect figurines, but a medical malpractice attorney collects, well, this stuff.)

Now a new technology is coming out where the sponges and pads will be bar coded, according to this article. The sponges are supposed to be scanned when they go in and re-scanned when the come out, and the scanning machine is supposed to set off a racket if everything is not accounted for. Will this help cut down on the human error that accounts for the current state of things? Perhaps.

The medical euphemism for these forgotten objects, by the way, is that the object was "retained," as if the body itself demanded it be left behind. And that is one of the ways that language is subtlety used to shift blame away from the medical team for its failure to keep track of the instruments.

Labels: Medical Malpractice

A New York medical malpractice defense firm has demanded permission to conduct 76 private interviews regarding the plaintiff's medical care. The request came in the immediate wake of Arons v. Jutkowitz, a Court of Appeals decision that permits informal interviews with treating physicians, a discovery tactic not previously permitted under New York law. The defense request goes well beyond treating physicians, and seeks broad based interview authority for entire institutions as well as inanimate objects.

On the day Arons was decided, I wrote that "This is a bad decision that will inevitably result in a mountain of litigation." I specifically pointed to the statement by Judge Read (pictured), author of the majority, that:

"it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically"

The "just trust me, I'm a defense lawyer" rationale, however, is not a substitute for HIPAA. It is a setup for abuse.

And so now the abuse of the decision has started, served on December 4th, less than a week after the decision. The first recorded instance comes in the request for 76 authorizations for ex pate interviews in a medical malpractice case concerning a failure to diagnose and treat breast cancer in a 40+ old woman. Among the requested interviews (document here: 76-Interviews.pdf) are requests for 27 interviews that don't even pertain to human beings, including:

• "Pathology slides;"
• "Clove Lakes Entity;"
• "Methodist Hospital Lab;"
• "Qwest" (another lab);
• "GHI" (health insurer);
• "Alpha Neuro" (Your guess is as good as mine)
  

In an interview I conducted with plaintiff's counsel in this case, Bob Vilensky, he wondered aloud as to what the buildings, laboratories and pathology slides would say. (The demand is not for medical records or for physical inspections, but for interviews.)

In contrast to my concerns about the problems that would ensue with the Arons decision, Beck/Herrmann at the Drug and Device Blog, extolled the virtues of the decision and in the comments disputed my view of the dangers, saying, "Most defense types bill by the hour, so the clients don't want to pay for irrelevant rummaging ... "

Well, I think this conduct, which was easily predictable, should put that argument to rest. And I don't think this will be the only outrage, only the first of many. And it should also give pause to those that claim the high cost of litigation is due to the actions of plaintiffs' attorneys.

The judges are going to have their hands full.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Medical Malpractice