I've been a bad blogger. I read a great book on the law. I wanted to blog the book. I told the author I liked it and would blog it. And then other stuff got in the way and the little review of the little book never got done. And when I say it "never got done," I mean, I didn't do it.

That book is the exceptionally well written Curmudgeon's Guide to Practicing Law by Mark Herrmann. Herrmann is one half of the tag team duo that write the well regarded Drug and Device Law Blog. In his spare time he's a partner in the Cleveland office of Jones Day defending drug and medical device companies from all manner of claims that come from my side of the bar.

But don't let his defense orientation deter you from reading this book. The Guide should be required reading for all newly minted associates. This is not only true for BigLaw but for small firm life as well. Anyone hiring an associate should hand that associate a copy on the first day of work. The book would also be a welcome refresher for those getting a little long in the tooth. In fact, some that are longer in the tooth would do well to read this primer, particularly for its emphasis on writing style and the art of persuasion. I've seen plenty of old habits that desperately need to be broken.

The Guide, which can easily be read in an evening, gives pointers on briefs, depositions, appeals and style that should instantly improve the talents of most members of the bar. The fact that it's also funny makes it especially easy reading.

How do I know it will improve the talents of most lawyers? Because as I write this review, another book is coming out, by Justice Antonin Scalia and Bryan Garner, on persuasive legal writing. And while you certainly know who Scalia is, and probably know that he knows how to write, most lawyers have no idea who Garner is. And Garner is the one that, with the help of judges across the land, exposes much of our legal writing as crap.

Garner is one of the leading authorities on persuasive legal writing, whose continuing legal education classes I've taken twice. A lawyer will learn more about writing from Garner in one day's class than s/he will learn in three years of law school. The videos from judges shredding the writing of people who claim to have law degrees, but can't seem to identify the issues they wish to present, is shocking. It also gives a person confidence that s/he can excel in the profession, if for no other reason than the bar of the bar is set pretty low.

And Herrmann, with his little Guide, proves himself to be a close cousin to that guru of legal writing with his emphasis on keeping the lawyer's work short and clean. It's not just the content of his book that is important, but the way it's been written. Being knowledgeable on the law is useless without an effective means of communicating that knowledge. And Herrmann demonstrates that he knows a thing or two about communication.

Both writers would make quick work of the overly pretentious and wordy nonsense that comes off the keyboards of so many. ("Enclosed herewith from the undersigned, please find the previously discussed document. Said document is enclosed for your consideration relating to my agreement to forward said document to your attention blah, blah, vomit, vomit, alphabet soup acronym, more useless words.") Both writers, incidentally, have also taken on one of my pet peeves, the voice mail with the phone number spokensofastyoucantunderstandit.

The little Guide has already sold 20,000 copies. Not too shabby for a law book published by the American Bar Association, and enough to make it an instant classic. And while I've never met Herrmann, I feel safe in saying he is much too young to be an actual Curmudgeon, since he's only a couple of years older than me.

Labels: Book Review

A jury's finding of liability has been upheld by a New York appellate court against the Port Authority of New York and New Jersey regarding the 1993 terrorist attack. The attack killed six and injured about 1,000 others. The jury found the PA to be 68% liable in the attack for its negligence in failing to provide security in the face of a clear danger that the trade center was a terrorist target. Since the finding of liability exceeded 50%, under New York law they are liable to pay all of the non-economic damages.

The decision by the Appellate Division First Department in Nash v. Port Authority followed long established premises liability law as it pertains to the reasonable security measures that landlords must undertake to make their premises safe. In essence, if one follows the opinion, the case was little different then that of a crime being committed in an apartment house after a broken lock went unfixed for months on end.

The court's analysis started with some very fundamental issues regarding the well known risk that the trade center was a terrorist target, recounting the Port Authority's own security report that found it was "obvious that the potential for a terrorist attack upon the World Trade Center is a real possibility and [that] the results could be catastrophic," and specifically noted that "[t]he parking lots are accessible to the public and are highly susceptible to car bombings." Another report, according to the court,

found that "it was not merely possible, but "probable," that there would be an attempt to bomb the World Trade Center and pointedly noted, "the WTC is highly vulnerable through the parking lot . . . With little effort terrorists could create havoc without being seriously deterred by the current security measures."

And yet another report found that "Parking for 2,000 vehicles in the underground areas presents an enormous opportunity, at present, for terrorists to park an explosive filled vehicle that could affect vulnerable areas." The report became still more specific in describing the feared scenario:

"A time bomb-laden vehicle could be driven into the WTC and parked in the public parking area. The driver could then exit via elevator into the WTC and proceed with his business unnoticed. At a predetermined time, the bomb could be exploded in the basement. The amount of explosives used will determine the severity of damage to that area."

With respect to the duty that the Port Authority, as landlord, owed to the tenants and visitors of the trade center, the court rejected the absurd defense claim that, because no such attack had taken place previously, they had no duty to prevent against one. The court noted that:

it is fair to say that no reasonably prudent landlord, aware as defendant was of the value of his or her structure as a terrorist target and of a specifically identified condition upon the property rendering it vulnerable to terrorist penetration, would await a terrorist attack, particularly one directed at basic structural elements, before undertaking, to the extent reasonably possible, to minimize the risk.

Thus, the reports (and these are just a few that I quoted from the court's opinion) clearly gave notice to the Port Authority of the danger, and it had a duty to act on that danger. In premises liability law well known to New York's personal injury attorneys -- familiar from other breach of security cases such as those that take place with broken locks in apartment buildings and subsequent crimes -- the court wrote (citations omitted) of the duty of landlords, that they must

"act as a reasonable [person] in maintaining his [or her] property in reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. This ultimate standard is as applicable in premises security cases as it is in other contexts where liability is sought as against a landowner for injuries allegedly attributable to premises hazards or defects. Indeed, it has been observed that the duty of a landlord to take reasonable measures to minimize foreseeable danger on his or her premises from third-party criminal activity is but a natural corollary to the landowner's common-law duty to make the public areas of his property reasonably safe for those who might enter.

It is true, of course, that a landlord is not an insurer of the safety of those upon his or her property and that the actual precautions sufficient to meet the reasonable care standard in premises security actions have often been described as "minimal." This is, in the vast majority of cases, a perfectly accurate description of the property owner's obligation; ordinarily, a landlord has discharged his or her duty if the basic perimeter and public area security systems, such as locks, buzzers, intercoms and lighting, are properly installed and maintained. The legally binding standard of care, as distinguished from the particular precautions required for its satisfaction in a given case, however, remains reasonable care to render the premises reasonably safe, and there are circumstances in which the nature and likelihood of a foreseeable security breach and its consequences will require heightened precautions..."

So what did the PA do in response to this danger? Apparently nothing. And the court was pretty clear that the jury was fully justified in making a 68% finding of liability against it after listening to the evidence, even though the PA was the negligent tortfeasor (as opposed to the intentional tortfeasor whose attack was predicted):

This was not a case in which ordinary negligence was transformed into a precipitant of tragedy by an otherwise unrelated, merely coincidental intentional act, but one in which the intentional act was foreseeably responsive to and exploitative of the negligence and, causally, did little more than bring the incipient catastrophic potential of the negligence to terrible fruition.

In seeking to avoid this entirely justifiable construction of the evidence, defendant sought to portray the bombers as exceedingly determined and clever malefactors, whose success was attributable, not in the main to its negligence, but to their own "finely tuned" plan. It would, however, have been very difficult to convince any jury that a "finely tuned" plan was necessary to do what the bombers did. There was evidence before the jury that explosives in "envisioned quantities" were readily available and that, once the explosives had been obtained and loaded onto the rented van, all that remained between the bombers and their nefarious objective were tasks rendered horrifyingly and embarrassingly simple by defendant's negligence: driving the van into the complex's subgrade parking facility, parking on the access ramp, setting a fuse and leaving the scene - all with evident ease. Only the most rudimentary plan was needed to take advantage of the "enormous opportunity" that defendant had through its negligence provided.

The court was clear that the law here is not about "comparative reprehensibility" -- for there is no doubt that the terrorists' conduct would warrant vacatur of the award if that was the standard -- but rather, about the conduct that contributed to the harm.

Did the court absolve the terrorists with this decision? Of course not. And what's more, they fully anticipate such criticism:

The verdict we now uphold is neither properly nor intelligently understood as absolving the terrorists. The issue before the jury in this civil action was not whether the terrorists had committed the bombing -- obviously they had -- or whether they should be severely penalized -- most of them were -- but whether their heinous conduct was foreseeable and avoidable by defendant in the discharge of its proprietary responsibilities.

In sum:

• There was as duty of care by the Port Authority due to the forseeable risk of a terror attack;
  
• The Port Authority breached that duty of care;
• That breach was as a substantial factor in causing injury;
• The jury apportioned fault based upon the conduct of the people involved, as opposed to apportioning based on moral turpitude.

And a last word from the court on whether the Port Authority should be immune from suit:

[T]he evidence overwhelmingly supported the view that the conscientious performance of defendant's duty reasonably to secure its premises would have prevented the harm. This civil jury had no power to decide whether the terrorists should in any meaningful sense be "absolved" of their murderous acts. What it could and did decide was rather that the acts of these terrorists, even while obviously odious in the extreme, were not a cause for the easy absolution of this defendant from its civil obligations.

For anyone trying a failed security that allows a criminal on the premises to commit a crime, this case is a must-read.

See also:

• Port Authority Ruled Liable for 1993 World Trade Center Bombing (Law.com)

• From the defense side, see Ted Frank at Overlawyered who thinks the Port Authority should get a free pass for its negligence)

Labels: Failed Security, Personal Injury, premises liability

You thought there were no cameras in the federal courts? Well, you would be wrong. In a New York federal courthouse a prosecutor was attacked last month, and it was filmed. Not by outside media, but apparently by its own security camera. And now footage of the attack has been leaked.

Labels: Odds and Ends

Ever wonder how those urban legends get started about crazy lawsuits that somehow find their way into the hands of tort "reformers" who repeat them as true? Read on, my friends.

On a blog called ER Stories, an anonymous individual who calls himself an emergency room doctor in the northeast sets forth this set of facts, but without a single link or method of authentication:

A woman comes into the ER with a claim of a fish bone stuck in her throat, and has an x-ray. The radiologist says its an osteophyte, a small bit of bone. So she gets scoped two days later and, lo and behold, a fish bone comes out, not an osteophyte.

Now the good part, our anonymous doctor continues the story with the good stuff:

A few weeks later, all three doctors get the dreaded ", esq" singed letter - they are being sued for missing the bone. Now, here is the ridiculous part. Her suffering? Severe pain? Infections? Scarring? Worse? No, SHE SUED BECAUSE SHE COULD NO LONGER PERFORM ORAL SEX! Yes, that is right.

The case subsequently settles, allegedly, for $60,000 due to the misdiagnosis.

And so the story spreads. Kevin, M.D., aggregator extraordinaire for medical blogs, picks up the posting and spreads it far and wide with this headline and one-liner:

Unable to perform oral sex, sue the doctor

Read it to believe it.

So Kevin has bought the story. And at least two other highly-rated bloggers have also linked:

• Patient sues as she can no longer perform oral sex..and wins
• Woman unable to perform oral sex sues the doctor
  

While each of these bloggers no doubt linked to it in good faith, it must be noted that the original story has no case name, no documents or docket number, nor even a state where this allegedly happened.

The original author responded to the challenge of the unsourced material in the comments of Kevin's blog, in order to "authenticate" the story, with this whopper:

Actually I posted this story. I heard it first hand from a physician (who works with me) who was a partner with the doctor that was sued. He knew the details as they unfolded. Unless he was lying through his teeth to me, it is how it happened.

So the story hits the Internet third-hand:

1. The defendant
2. Defendant's partner
3. Anonymous Blogger

And that is how an urban legend is born. Not to mention a really good fish story.

Labels: Medical Malpractice

Brooks Schuelke comes out with Personal Injury Law Round-Up #59;

Kevin Pho of Kevin, M.D. fame has an op-ed in USA Today regarding "defensive medicine" costs that he claims is due to overordering tests out of concern for malpractice. Doctors and hospitals, of course, get paid to do extra tests, but his column doesn't address that as a contributing factor. There are loads of comments at his blog on the piece he wrote;

Anne Reed at Deliberations on why your theory of the case might be crap; and

Virtually Blind steps out of this world and into the virtual one with Blawg Review #156.

Labels: Random Notes

Justice Antonin Scalia has once again hauled out the "get over it" line when referring to the 2000 election and the part he played in stopping votes in Florida from being counted. As if the suspension of democracy was something to be forgotten instead of something to learned from.

His comments came in an interview with 60 Minutes that will be broadcast this Sunday as he pitches a new book on appellate persuasion:

"I say nonsense," Scalia said, when asked about critics who say the 5-4 ruling was based on politics and not justice. "Get over it. It's so old by now."

But I'm a bit uncertain as to why it made headlines, since he has trotted out this routine before to defend his conduct. It was reported back in January 2007 (See: A Response to Justice Scalia on Bush v. Gore and Scalia and Alito Hit the Lecture Circuit)

A few others on the subject:

• 60 Minutes: Scalia On Bush v. Gore 2000: "Get Over It" (Crooks and Liars)
• Scalia---'Mister Justice'--- Defends Bush v. Gore... (Buck Naked Politics)
• Scalia on 2000 election ruling: 'Get over it. It's so old now.' (USA Today)
• Sure, We'll Get Over It When Conservatives "get over" Roe v. Wade (Shakesville)
• His Historical Legacy (Hullabaloo)
• Scalia wants everyone to 'get over it' (Carpetbagger Report)
• Scalia to country get over it (Where's the Outrage)

Updated with a few more:

• Scalia on Bush v. Gore "Get over it" (The Political Voices of Women)
• Why People Hate Antonin Scalia (Economist.com)
• Scalia's Old Material (BLT: The Blog of Legal Times)
  

Labels: Judiciary

New York's medical malpractice insurance situation has been in the news quite a bit, due to a 14% increase in premiums. (See, Why New York Medical Malpractice Insurance Jumped 14%) Of course, even before that there had been no shortage of complaints that doctors would leave New York out of fears of high malpractice premiums. Every year the doctors go to Albany to lobby for tort "reform" and every year consumer groups rebut the stories they bring with them.

So here's the latest empirical evidence, as opposed to anecdotes used for propaganda. A recent exit survey of medical residents that have completed their training, from the SUNY Albany School of Public Health, says the the number of doctors leaving New York due to malpractice concerns was just 1.8%:

Forty-eight percent (48%) of the graduates with confirmed practice plans were staying in New York to begin practice, although there were substantial differences by specialty. The in- state retention rate has been relatively flat over the last four years of the survey. For graduates in 2007 who were subspecializing, 53% were planning to do so in New York compared to 52% in 2005.

• When respondents who were planning to practice outside of New York were asked why they were leaving, the most common reasons were proximity to family (26%) and inadequate salary (21%). Thirteen percent (13%) of respondents indicated that they never intended to practice in New York.
• Less than 2% of respondents reported that the principal reason for them practicing outside of New York was the cost of malpractice insurance (1.8%) or the lack of job opportunities for spouse/partner in New York (1.4%).

The number of doctors in New York is the highest that it has been in a decade.

hat tip: PopTort

Labels: Medical Malpractice

I wrote a short while back about an outrageous subpoena issued by a lawyer to autism blogger Kathleen Seidel (See, Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena). It was outrageous because she wasn't a part of the suit, and the attorney that issued it requested all kinds of documents and financial information regarding her blog on autism and her views on whether autism was related to vaccines. The subpoena, if you can believe it, even demanded documents regarding her religious affiliations, "Muslim and otherwise."

And I urged the judge to impose sanctions. As did scores of other bloggers.

So here is the update: The subpoena has not only been quashed, but attorney Clifford Shoemaker, who issued the subpoena, must now show cause why he shouldn't be sanctioned.

I can't wait to see Shoemaker's response. I'd love to see his justification.

It's worth noting that Public Citizen decided last week to represent Seidel. But the order to quash came so fast, and the PACER file shows no evidence of a filing from them, that is appears the result is from Seidel's own work in representing herself pro se.

Well done!

Update 1: Seidel was not the only one to be targeted by Shoemaker. He also went after Dr. Marie McCormick, a Harvard professor who also is not involved in the litigation.

Update 2:

• Quashed! (Respecful Insolence)

  Extensive comments here

• Take THAT Ass-Hat (Legal Satryicon):

  Law school - 3 years of your life. Time to write a really stupid subpoena - 15 minutes of your life.
  Duration of the stench that sticks to you when you are the idiot who got Rule 11 PWNED by a pro-se litigant — the rest of your life.

• Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena (Citizen Media Law Project)

  Shoemaker will have a difficult time explaining why the subpoena he issued is justified, as it demands the disclosure of documents that appear to have no relevance to the Sykes litigation. Instead, it is rather obvious that the subpoena was intended to coerce a critic of his clients to "shut up."

• Vaccines, Autism, A Blogger & Free Speech (Pharmalot)

  This marks the second recent instance in which a blog has come under attack for pursuing contentious topics in which consumers are battling drugmakers.

• Quashed! (Pure Pedantry)

  Mr. Shoemaker now has a little legal problem. See the tiny tear fall down my cheek.

Labels: Attorney Ethics

Some courthouses are quite grand. The Supreme Court buildings in New York and Queens are two fine examples.

But then there are others. The Bronx Family Court, for instance, is one of the most dreadful buildings around, where it can take two hours for people just to get inside, so they can tear their hearts out over broken families. The Family Court shares space with the Criminal Court. And this picture, showing a Third Worldish assault on the senses with its signs and solicitations, was taken directly across from the entrance. You won't find too many folks from BigLaw entering an appearance here.

Storefront lawyers' offices. Bail bondsmen. Eateries. Process servers and Notaries. And if you click on the picture to blow it up, you will see the sign for Judges Only parking. Not that there's anything wrong with that.

Labels: Photo Essay

Blawg Review #155 is up, in poetic fashion, at the California Blog of Appeal. Poetic? Well, kinda, sorta;

Last week's Personal Injury Round Up #57 came out this week, because it's being done by an actual working lawyer, not an academic (Hey profs! Just kiddin'!). OK, maybe Brooks Schuelke spent part of the time at Disney World. But trust me, getting a round-up out every week like clockwork is no easy feat. And now Brooks is back today with Personal Injury Round-Up #58, chock full of links to stories, many of which I hadn't seen;

There's Health Wonk Review up at Health Beat which mixes medicine, law and policy;

Walter Olson notes at Overlawyered that Fen-Phen plaintiffs' lawyers received $982/hour from the court. Given that the attorneys bore the risks and costs involved in a complex case for nine years, was that appropriate? You can find the judge's math in calculating the award at The American Lawyer and reach your own conclusion;

Mary Whisner at Trial Ad Notes reports on the first study done on so-called health courts, with the author concluding, "that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.

And Dick Cheney is a romantic. Who knew?

Labels: Random Notes

Uber-blogger Scott Greenfield, of Simple Justice fame, has an op-ed in today's Newsday on the scandal over attorneys representing "baby governments" such as school districts, out on Long Island.

Once upon a time, tort "reform" consisted of asking legislatures for protections and immunities from suits by capping damage awards on the most badly injured of people, so that responsibility shifts from the person/company that did the deed onto the victims to fend for themselves.

That's fading away. This is what the new tort "reform" looks like for drug makers:

First, ghostwrite "research" that goes out under the name of private doctors;

Second, use the research to get FDA approval for your product, or hide contrary information from the overworked, underfunded FDA;

Third, use FDA approval to scream for immunity from lawsuits under the doctrine of preemption.

Fourth: Find anecdotes of lawyers doing dumb things, like suing for $54M for a pair of pants, to support the theory that the problem is plaintiffs lawyers, and have the Big Business lobbying arms use it for all its worth to distract from the issues. Remember, blame the plaintiffs' lawyers, no matter what you have done wrong.

Update 4/17/08: Why is this so effective? Because preemption is a concept understood by less than 1% of the general population. Our elections are about more important things, like what kind of lapel pin a candidate wears.

Labels: tort reform

Who'd a thunk it? It was just five months ago that I let loose against the ABA for leaving all personal injury blogs out of their ABAJournal Blawg 100 (see: Vote For Me In Blawg 100!! (Oh Wait, You Can't)). And today I learn that my blog has popped up as their Blawg of the Week.

When the ABAJournal re-invented its web site last July, I welcomed their redesign with "terrific news feeds" and "a great new compendium of blawgs." It was clear they had done their homework. (See: Welcome New and Improved ABA Journal)

This being the ABA though, I was a bit concerned that its focus would be waaay too much on BigLaw, and not enough on the small and solo firms that make up the vast majority of America's law firms and that do much of the grunt work. I even wrote last summer:

The new ABAJournal also has a featured blawg each week. Let's hope they don't just focus on the big name A-listers from the ivory towers and appellate world, and present the occasional up-and-comers from the "Practical Blawgosphere" that are out there in the courthouses on a day-to-day basis.

So while I was disappointed that the entire personal injury bar, both plaintiffs and defendants, was left in the dust of its vaunted 100, it's obviously refreshing to see that, perhaps, things can change.

And yes, I did make sure to copy the page, under the theory that this was just a screw-up or practical joke and it disappears tomorrow.

A final note for new visitors: If you'd like to see some of the greatest hits of the blog, click that link. And feel free to add it to your RSS feed. No extra charge.

Labels: Blogging

I don't really get the newspaper biz sometimes. I saw the front page headline in the Daily News as I passed through the train station yesterday, and read the story online here. New York Supreme Court Justice Jack Battaglia slips and falls on a floor in his courtroom because it was left wet and soapy by a janitor. Water on the floor is hard to see. He busts up his knee. It seems, in all respects, to be a run-of-the-mill lawsuit.

He then sues for a million dollars. Well, not really, but that is an archaic quirk in New York law. Litigants have actually been prohibited since 2003 from putting a number in the Complaint, as I've discussed previously. But because this is an action against the City of New York, a litigant is required to file a Notice of Claim within 90 days and is required to put a number in the claim. Dumb rule. How many people know how bad a knee injury will be within 90 days? Will they need surgery or will conservative treatment work? Three surgeries? Will there be pain and a limp forevermore? The answers are generally unknowable at the time a claim must be filed.

But you are required by law to put a number in the Notice. And so any lawyer with functioning neurons knows you are forced to assume, by law, a worst case scenario. Because if you state that fair and reasonable compensation would be $100,000, and it turns out much worse, then you might be, as we say in legalese, shit out of luck.

Last year the New York legislature took another step in abolishing this rule with regard to suits in the Court of Claims, where suits against the state are brought. (See: New York Cleans Up Claims Act). The ad damnum thus went to the scrap heap for cases against the State, as they had for everything else.

It's time the legislature took the next step and dumped the rule for Notices of Claim against the City of New York. It serves no useful purpose. If the city wants to know what a litigant feels is the fair value of a matter, they can easily pick up the phone and call, or ask for it in writing, but requiring it by law is dumb, dumb, dumb.

As to the Daily News article, the writer calls it "the mother of all slip-and-fall cases." Well, no, pretty routine actually. They call the judge "politically connected." Do you know any that aren't?

[Update: No suit has been brought, just a Notice of Claim filed. The purpose of which is to give the city prompt notice allow it to investigate the matter. So no, the janitor has not been sued, but has been partially identified. Which allows the city to investigate the claim. Which is kinda the whole idea.]

Should he not sit on city cases? Good question. Since there are plenty of judges in the courthouse, avoiding the appearance of impropriety is probably a good thing here.

But a much better question is: Why hasn't there been any similar question about Wacthell Lipton representing the judiciary in the judge's lawsuit for pay raises, and the ramifications of them appearing in front of judges whose interests they represent? Now that is a front page story. Yet I seem to be the only one to have covered it.

Labels: Personal Injury

When I first heard about SueEasy, I thought it was an April Fool's joke. But it was October when it first appeared as a development concept (see 10/23/07 post:So How Did You Find Your Attorney? SueEasy!!!). Then I thought it must be a practical joke created by some tort "reformers" to highlight really bad advertising that sometimes takes place. Standard operating procedure is to use anecdotes to tar everyone else to win further protections and immunities for big business.

Sad to say, it has now gone live and appears to be yet another grotesque form of marketing, except that this one is actually dangerous and can help kill legitimate cases. (Note: SueEasy links provided by a TinyUrl redirect, so that this embarrassment to the profession doesn't benefit from any PageRank by my linking to it.)

According to the site, "SueEasy is neither a law firm, nor is it a lawyer referral service." That leaves only one thing, a marketing portal of some kind, presumably where lawyers buy space. These types of dumps are a dime a dozen on the web, and I get calls from them all the time. (See: The Ethics of Attorney Search Services.)

But unlike other attorney search services, this one has the potential for some serious damage in a unique way to both client and attorney in personal injury matters.

First, from the client perspective. One question you might expect at a deposition or trial will be this: How did you find your attorney? That doesn't mean defense counsel can ask what was said, but they might certainly ask how you got to the lawyer you are using. Now can you imagine a jury finding out you used some company called Sue Easy? Perhaps a judge will allow the testimony, perhaps not, but I sure as hell wouldn't want to be in a position to find out when the answer is SueEasy.

And since you may share documents or write something to this company that advertises it is not a law firm, that stuff you send may not be protected by the attorney-client privilege and may be discoverable (and possibly admissible at trial). Which is to say, that is a way for a defense lawyer to get the SueEasy name in front of a jury.

Here's something else you might to consider: During jury selection one of the standard issues raised by defense lawyers is that anyone can bring a lawsuit. So if ever there was a way to reinforce that idea, contacting an advertising portal named SueEasy would do it. It's like handing a big, fat gift to the defendants.

Second, from the attorneys perspective. You have not only shot a stomach churning hole in your own client's case (and any fee you hope to recover), but you are also at the mercy of the advertising portal to act ethically. As I demonstrated in my other post on the ethics of these portals, this could be a real issue. For example, the site appears to be in violation of New York's ethical rules because it fails to state that it is attorney advertising.

You might also note the site owners are too embarrassed to identify themselves, so a participating lawyer would be ceding their marketing to an anonymous individual or company. Imagine that, a lawyer putting his or her law license into the hands of anonymous people. Try explaining that one to the disciplinary committee one day.

If you agree to be marketed by that portal, the disciplinary committee of your state may well say that they are your agent, and you are responsible for the content of their site and the conduct of the employees. And they may not look kindly on the willful blindness defense that you will try. ("Really? The site did that? Oh, my, I'm shocked, just shocked to find out. I'll have a talk with my people and maybe we'll do something else. Oh, thank you so much for telling me, Madame Chair of the Disciplinary Committee.")

So my advice to those seeking an attorney:

1. Ask around first. Your friends, relatives and neighbors are the best place to start.
2. Ask another attorney, even if outside the field you need. While you wouldn't want a medical malpractice attorney to handle your real estate venture, and vice versa, there's a pretty good chance that the attorney will at least no where to look for the right person.
3. After you get a few names from the above methods, you can check out their website to see if gives clues as to what field(s) the attorney(s) claim to be proficient in, and interview the attorneys as to other cases in the field that they have handled.
4. An attorney search service such as Sue Easy is not just a bad idea, but a spectacularly bad idea, with this in particular possibly be so dangerous as to harm your case. Any attorney who uses it for serious personal injury cases may well be committing malpractice.
   

This company is a bona fide twofer for defendants. They get both the horrible anti-plaintiff's lawyer press and they get stuff they can actually use in the courtroom. I keep thinking this must be a joke, as no right-minded lawyer would ever affiliate themselves with this outfit. But I fear that is not the case.

See also:

• Beware lawyers: Web 2.0 brings out same crazies as Web 1.0 (Real Lawyers Have Blogs):

  Please do not spend a lot of time evaluating whether your law firm should sign up for all the wacky services you hear of.

• SueEasy, So Easy It Can't Be Good, Really (Blawgraphy):

  As for potential litigators - talk about a hairball generator.

• SueEasy Goes Live -- Your Class Action Lawsuit Lottery Ticket (Michael Arrington @ TechCrunch)

  The site allows people to file (or search for) grievances, join with others looking for a payout, and eventually get the attention of a first class ambulance chaser to take your case.

• SueEasy.com (Walter Olson @ Overlawyered)

  Michael Arrington [TechCrunch] likely is a great deal too flattering in terming it a "Shangri-La for ambulance chasers"

• Only in America: SueEasy.com (Above the Law) updated 4/17/08, with this comment:
  

  i'm going to post a false advertising complaint against "www.sueeasy.com" for promising "instant legal bliss" while being aware that such a thing does not exist.

• Another Way For Lawyers to Embarrass Themselves (Simple Justice), updated 4/19/08 with a related post:

  Every few hours an email comes in touting some new scheme to suck in desperate attorneys.

Labels: Attorney Ethics, Personal Injury

Dr. Wes rounds up the best of the med blogs with a very stylish Grand Rounds;

Blawg Review # 154 is up at David Harlow's HealthBlawg, with a theme of World Health Day;

Scott Greenfield ponders if an ethical violation occurred with Rusty Hardin, regarding the Roger Clemens steroid scandal and his breaking the attorney-client privilege; and

Chinese government goons attack a U.S. citizen on U.S. soil for expressing her First Amendment rights (Legal Satyricon)

Yesterday Chief Judge Judith Kaye sued the State of New York (among other defendants) in Supreme Court, the state's trial level court. But New York law provides that the Court of Claims has exclusive jurisdiction of suits against the state for money damages. Did New York's Chief Judge sue in the wrong court?

I mentioned this subject quickly this morning as the bottom of a post on the ethical implications of Chief Judge Kaye's legal counsel making a big gift to her and her fellow judges: Free legal services. But it seems that this subject deserves a post of its own. After all, if the Chief Judge and Wachtell Lipton can make such a blunder (if, in fact, it is a blunder) what does that mean?

This quote comes from a footnote out of the New York's Court of Appeals, our highest court and the one Chief Judge Kaye sits on, in a case last year (Haywood v. Drown):

New York's waiver of sovereign immunity is conditioned on submission to the exclusive jurisdiction of the Court of Claims ( see N.Y. Const, art. VI, § 9; Court of Claims Act § 8).

It sits as a footnote because this is well known law. That jurisdiction is for any case demanding money damages, and it seems that Chief Judge' Kaye's suit certainly fits that bill, especially since one of the things the suit asks for is that it be retroactive for a couple of years.

But wait! Having chipped in my two cents yesterday on the subject, I felt a need to continue the exploration, and found I was wrong, wrong, wrong. And the reason is that the constitutionality of the State's conduct is at issue. I now shamelessly crib from a lower court decision by Justice Walter Tolub in 2006 against Comptroller Hevesi and the State (citations have been omitted):

It is well settled that the Court of Claims has exclusive jurisdiction over actions for money damages against the State, State agencies, or State officials acting in their official capacities in the exercise of governmental functions. This is because claims seeking money damages which arise out of actions and determinations made by State officials acting in their official roles are, in essence, actions against the State, for the State is the real party in interest. Court of Claims Act § 9[2] provides the court with jurisdiction to hear and determine claims against the state for the appropriation of any real or personal property or any interest therein.

"However, the Court of Claims does not have jurisdiction over challenges to the constitutionality of statutes, even if such determination is necessary to resolve a claim for money damages against the State. Rather, a declaratory judgment action in the Supreme Court is an appropriate vehicle for challenging the constitutionality of a statute.

So there you have it. That "Doh!" belongs to me.

Labels: Judiciary

Yesterday Chief Judge Judith Kaye brought a lawsuit for long sought judicial pay raises on behalf of the New York judiciary. In doing so, some ethical issues now present themselves based on the free legal services offered to the judiciary by Wachtell Lipton, an issue quite apart from the more obvious question of how any judge that is part of the plaintiff's class can actually hear the case. (Those issues are covered today at Judicial Reports.)

Now here are the other ethical questions:

1. Wachtell Lipton is representing the Chief Judge pro bono through Bernard Nussbaum, former chief counsel to Bill Clinton. But isn't that type of free representation a gift, and a very substantial gift at that, in violation of the ethical rules? According to New York's Disciplinary Rule 7-110:

A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal except as permitted by the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with the Code of Judicial Conduct.

So what does the Code of Judicial Conduct say? Here it is:

(5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except:

(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;

(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E);

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H).

So that leaves one exception: Section 100.4(H). What is that? It follows at the same link. And the point of the regulation is that payments to judges should not "give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety." And I can't see how a gift that is worth many hundreds of thousands of dollars in legal fees, or over a million the way BigLaw likes to bill, would not give the appearance of impropriety. There are exceptions in that section, with a reporting limit of anything over $150. I don't see any exception that fits this type of gift.

2. Next question: Did Judge Kaye commit an ethical violation by accepting such a gift from Wachtell Lipton on behalf of the judiciary?

3. And now on to Wachtell's own problem: Will those who are litigating against Wachtell in New York's state courts now move to have the firm disqualified because of their gift? At the very least, a horrible perception will arise when any Wachtell lawyer steps into the courtroom in any case to appear in front of his own client, with its apparent conflict of interests. I have to assume that anyone litigating against Wachtell will now look into making motions to disqualify the firm.

Now this is not an argument against judicial pay raises. Far from it. I think our judges are badly underpaid and have deserved he increase for many years. No, this goes only to the manner in which they are going about it by accepting a major gift from a law firm that litigates in front of these same judges, who are now their clients.

Even if the legal services fall into some legal loophole, and I haven't seen it yet, it still seems to smell. Especially if I were a litigant where Wachtell was on the other side.

And one other, unrelated, issue. Among the defendants is the State of New York. But the State can only be sued in the Court of Claims, not the Supreme Court. Why did Wachtell, with the approval of the state's top judge, bring the action in a court where it is not permitted to do so? (Explanation here: Doh!)

See also:

• N.Y. State Chief Judge Sues State to Secure Judicial Pay Hike (NY Law Journal)

Labels: Attorney Ethics, Judiciary

A year ago last April New York's Chief Judge Judith Kaye threatened to bring a lawsuit because the judiciary hadn't had a raise, even for the cost of living, for eight years. Their salaries remained stuck at $136K while first year associates at BigLaw top out over $200K including their bonuses.

Then in July she reversed herself, setting off a furious brawl among the judiciary when she said she would not bring the suit.

Then in December our Chief Judge Hamlet flip-flopped again and said she would bring suit.

Now apparently, a year after saying in a press release that the judiciary will not remain "docile in the face of the shabby treatment," she is finally pulling the trigger and starting suit.

It is, of course, shameful that the legislature hasn't acted to fix this problem of underpaying the judiciary. While no one expects them to be on a par with the private sector, one has to recognize that substantially underpaying them will ultimately cause the best of the bench to move into private practice, or to politely decline the opportunity if they do not yet wear the robes.

The suit, long awaited by the judiciary, is being filed today in Supreme Court in Manhattan (Supreme Court being the main trial court, not an appellate court). Of course, since every judge in the courthouse has a vested interest in seeing the case succeed, it remains to be seen who, exactly, will hear this thing.
--------------------
And now...moments after posting the above, I am back...here is a copy of the filing.../Kaye-v-Silver.pdf

The suit names Sheldon Silver, head of the Assembly, Joe Bruno, head of the Senate, David Paterson, our newly minted Governor, and, of course, the State of New York.

According to the suit, "no other state or federal judges anywhere in the United States have gone longer without an increase in their compensation -- not even a cost of living adjustment."

While titled "Complaint," the document doesn't read like any Complaint you have likely seen before. It looks more like a manifesto of judicial pay raise problems before finally alleging in paragraph 12 that the current situation is unconstitutional as a violation of the separation of powers between the branches of government, with pay so low that judges are held hostage to political whims about which they have no say.

The suit also claims (paragraph 15) that by failing to account for cost of living increases, that judicial salaries have been lowered, in violation of the constitutional mandate that they judicial salaries "shall not be diminished."

The suit is accompanied by a 12 page Memorandum of Law asking for a prompt trial. Also part of the filing is a seven page letter to Justice Edward Lehner asking for the same relief. What Lehner will do is anyone's guess since he is part of the class that Kaye has sued on behalf of (see paragraph 19 of the Complaint).

Justice Lehner has been hearing another judicial pay raise case (Larabee v. Spitzer) brought by four other justices: New York City Family Court Judge Susan Larabee, New York City Criminal Court Judge Patricia Nunez, New York City Civil Court Judge Geoffrey Wright and Cattaraugus County Family Court Judge Michael Nenno.

Updates:

• Senate: Blame It On Shelly (Silver) (Capitol Confidential)
• Chief Judge Kaye Pulls The Trigger (Simple Justice)

  While framed as if it was really a summons and complaint, I don't believe that is how it's meant. This isn't a complaint of a group that seriously expects to litigate and intends to win.

• Judge Kaye Sues to Obtain Pay Increase for New York Judges (Sui Generis)

  Judge Kaye has thrown down the gauntlet

• Breaking the Bank (Judicial Reports)

  The 30-page suit makes three primary claims: that the New York judiciary is entitled to "adequate compensation," that State judges were unfairly discriminated against by the State Legislature, and that the judicial branch pay raises are unfairly attached to Legislative pay raises.

• Wachtell and Judicial Ethical Violations in New York's Judicial Pay Raise Suit? (This blog)

  Yesterday Chief Judge Judith Kaye brought a lawsuit for long sought judicial pay raises on behalf of the New York judiciary. In doing so, some ethical issues now present themselves based on the free legal services offered to the judiciary by Wachtell Lipton, an issue quite apart from the more obvious question of how any judge that is part of the plaintiff's class can actually hear the case.

  
  

Labels: Judiciary

The FDA revealed yesterday that the death toll from counterfeit heparin rose from 19 to 62 over the last 15 months starting in January 2007. I had previously discussed this issue in the context of Baxter's potential liability for distributing counterfeit drugs (see, Counterfeit Heparin and Baxter Liability).

The 66 deaths come from a total of 103 deaths of patients taking the blood thinner. The 62 deaths resulted from allergic reactions or hypotensive (low blood pressure) events related to the counterfeits. The others would have been due to underlying medical conditions.

The FDA released a table of data showing that in 2006 there were 55 deaths from heparin users, but that only three were due to allergic reactions or hypotension as a medical event, similar events to the cases that prompted the heparin recall in 2008.

According to Baxter, however, only 38 deaths are attributable to their contaminated product and that four of those deaths were from unexplained allergic reactions.

The FDA is continuing to receive information on adverse events related to heparin, so this total is not expected to be final. As a result of all the publicity surrounding the recall, as well as the high-profile overdose of heparin to Dennis Quaid's twins, one would reasonably expect an increase in healthcare providers submitting adverse event reports to the FDA.

See also:

• FDA Triples Count of Heparin-Related Deaths (WSJ Health Blog)
• Reports of deaths linked to blood-thinner heparin triple (Chicago Tribune)
• FDA Raises Estimate of Deaths Linked to Blood Thinner (Washington Post)
• Why you can't tell where your medication was made (Nat'l Center for Policy Analysis)
  

Labels: counterfeit drugs

State Farm was hit last week by yet another racketeering lawsuit. The new suit is brought by a patient charging that State Farm was conspiring with so called "independent" medical exam companies to conduct sham exams designed to deprive injured people of benefits under New York's No Fault law.

Unlike the suit brought two months ago (see State Farm Hit With Civil RICO Claim Over Sham Medical Exams), which was brought by a physician charging that his practice suffered as a result of collusion between State Farm, medical exam companies and physicians, this one was brought by a patient and brought as a class action.

The suits arise as a result of New York's No-Fault law, that mandates each motor have insurance that provides up to $50,000 in basic economic loss regardless of fault. This loss includes both medical expenses as well as lost wages, among other things. (In exchange, the injured person surrenders the right to bring suit unless a serious injury has occurred.) As a condition to the treatment that the injured may obtain from their own medical providers, the insurance companies are entitled to force exams by their own "independent" physicians to see if the treatment is necessary. These so-called independent exams may thus be the means by which insurers stop paying for treatment, and has been the basis of these lawsuits.

The suit is brought by Bruce Rosenberg of Bellmore New York, who had also brought the prior State Farm suit as well as another by a practitioner against Allstate (see: Allstate Slammed With RICO Charge Over Sham Medical Exams).

The subject has been smoking hot around here, as one of the defendant doctors responded on this blog with a guest post (see: A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge). In the comments, other defendants have also stepped forward, and thus far 39 comments have been recorded as the subject sizzles on, away from this blog's main page.

I don't know attorney Rosenberg, but he clearly seems to be taking on an entire industry with these three suits (and one wonders if more are to come from other patients). And if he has the goods, evidence-wise, we may see some remarkable legal action in the year or two ahead.

Hat tip to David Gottlieb who first uncovered the suit and blogged it at No Fault Paradise.

The suit was filed in the United States District Court for the Eastern District of New York. A copy of the suit is here: RICO-Sundahl-v.StateFarm.pdf

Labels: Insurance Industry

It happened, ironically, with an April Fool's Day post. I passed the one million mark in page views.

I'm not quite sure what to make of it, since I've never really been able to figure out from the stats what represents human eyes and what represents spider eyes. And I know that many stumble in here simply because they are doing image searches or have used the images in various forums and blogs. Another stat, "visitors" passed the 500,000 mark and "unique visitors" is approaching 300,000.

If I had to decide what the most important metrics were, however, I would say:

• The number of comments, because that means folks are reading the content, and they often add new dimensions to the original post. I've never calculated them, though I can see there has been a marked increase in the last two months. Seeing 5-10 comments on a posting is no longer unusual, and some have generated over 20.
  
• The number of favorable comments, which of course, isn't quite the same as overall comments. I'm shocked, shocked I tell you , that some folks seem to have a knee-jerk reaction to personal injury attorneys, no matter what is written.
  
• The incoming links, because that also means people are reading and finding it useful to point others here. Technorati counts those for me, and I see 1,600+ incoming links. Of course that also includes spam blogs and double links coming in from some places.

But for whoever it is out there that has stopped by my tiny corner of cyberspace these past 17 months, I thank you. I've very much enjoyed doing this, and hope to continue as time permits.

Labels: Blogging