It's been buzzing around a couple of blogs that New York is considering funding three new law schools, to add to the 15 we already have. I haven't seen anyone support the idea yet, except the politicians who want to bring jobs into their districts. But one part of the idea might have merit and be worth considering.

First the nuts and bolts of the proposal, then we'll go to the naysayers, and then I'll add my two rupees on which part might be a good. This is from a May 30th New York Law Journal article:

With no advance notice and little fanfare, the Legislature included in the budget passed April 2 money for two feasibility studies: $3 million for the State University at Binghamton and $2.25 million for St. John Fisher College, a Roman Catholic institution in Pittsford, near Rochester.

Additionally, it provided $250,000 for "planning" of a law school at SUNY Stony Brook -- to cover expenses such as approvals by the New York State Department of Education and the Board of Regents and accreditation by the American Bar Association. Finally, the Legislature earmarked $45 million for a Stony Brook law school building should one be required.

Now the first person to check in on any such proposal is, you guessed it, Walter Olson who isn't too keen on the idea:

Because we all know if there's anything New York needs to subsidize, it's the creation of more lawyers...The future lawyers of New York thank you, taxpayers!

Next up, Scott Greenfield:

I've long taken the position that one of the primary problems with lawyer over-reaching, ethical issues and just plain diminishing revenues is that fact that we have too many lawyers. And if we have too many in general, you can bet that New York, the lawyer haven of the world, has too many in particular.

So what's New York going to do about it? What else, build more law schools!

Both are right that New York has plenty of law schools. But what we don't have is plenty of public law schools. Only SUNY Buffalo and the City College of New York are public; all others require the big bucks.

So what do those of modest means do? Do we want the bar to be overly weighted toward the well-to-do, or do we want it to be more egalitarian? Should law be open only to those fortunate enough to have chosen their parents well?

Now I happen to be a big fan of public education, and when I last checked my bio I saw I was still a graduate of SUNY Albany (undergrad) and SUNY Buffalo (law). Building additional law schools may be dumb since we have so many, but more public education is a slightly different subject.

And so those feasibility studies might better be geared toward acquiring existing law schools and converting them to public education. (And making the two that we have better.) Maybe a study will show it is doable, maybe not. It seems to me that what we need are not more lawyers and law schools, but different ones.

I would also add that, in reading the comments of some public officials, the primary concern seems to be bringing pubic money into their own area. In other words, just another porky project. That is a lousy reason to build anything.

But if existing facilities and personnel can be converted from private to public in order to make the law more accessible to talented people of lesser means, then I think that's something to consider.

Labels: Law School

...is up, with Brooks Schuelke once again doing the hard work of putting it together.

The ad takes up a full back page in today's New York Law Journal. And it is a thank you from the New York State Trial Lawyers Association to the almost 150 members of the organization that traveled to Albany to lobby the legislature last week to help preserve the civil justice system and increase judicial salaries. NYSTLA, for those that don't know, is the preeminent trial lawyers group in New York.

So the questions are:

• If you have an attorney handling a personal injury matter, is the name of your lawyer on the list? Or at least someone from his/her firm?
• And if not, did s/he attend last year or the year before?
• Is s/he actively working in some way to preserve the civil justice system?
• And if they have never done anything in this regard, why not?
  

Here is the ad: NYSTLA-Ad.pdf

A big thank you to the folks at NYSTLA for their organizational skills in getting us in to meetings with our legislators. It was a job well done.

Labels: Personal Injury

That picture of Hillary Clinton to the right was shot by my photojournalist niece, with a story at the link. Will someone tell the Pulitzer people?
(More here.)

A surgeon writes of seeing his father try a case, and the Perry Mason Moment (Surgeonsblog);

Blawg Review #161 is up at Patent Baristas with a Memorial Day edition;

From Justinian Lane at TortDeform, discussing whether stiffer penalties could have avoided a hepatitis outbreak :

It amazes me that so many conservatives think that the death penalty is an effective deterrent to crime, but don't think that large financial penalties won't deter misconduct among corporations or medical professions;

Most lawyers think they write well. Mister Thorne has a short post on convoluted legal writing likely to make you think otherwise (Set in Style);

Here's a disclaimer you won't see often (NY Times):

Warning: The body parts you are about to see may have come from Chinese people who were tortured and executed;

And American Lawyer falls for someone's April Fools Day hoax regarding Fantasy Baseball (Ted Frank @ Overlawyered).

Labels: Random Notes

On May 27, 1988, after 2 1/2 years as an associate at a top medical malpractice firm in New York, I quit. Not for another job. But to pick up a backpack and travel around the world.

And so a journey began, initially lasting 10 months and including my first "blog" of sorts, a monthly travel journal I called The Turkewitz Times. But in actuality the travels lead to my own firm and the newletter to this little electronic law diary. And it lead to a few lessons in the law, the kind that might not be in our books.

When I quit that job I was already experienced, having deposed over 100 medical professionals and tried two cases at Fuchsberg & Fuchsberg. And because of that experience I was confident I could hook up with a new firm when I returned after having scratched the travel itch. This was an adventure I could never undertake once I got married and had kids, had a mortgage and an assortment of other responsibilities.

That journey took me from the exotic center of Marrakesh, to the old stone walls of Dubrovnik and Jerusalem, on a felucca down the Nile and to the otherworldly Cappadocia in Turkey. From the depths of Red Sea scuba diving to the Himalayan heights of Nepal. From the poppy fields of the Golden Triangle of Thailand to a final farewell bungee jump in New Zealand.

I communicated back in '88-'89 by writing the newsletter filled with stories, a diary, letters, an editorial and an expected itinerary. This would go once a month to my brother Ken, who then typed it all up on a Mac with desktop publishing and mailed my periodical in previously addressed envelopes to 20 family and friends. They, in turn, could write to me (c/o American Express offices) at the anticipated drop points. I would get my own copy of the Times about two to three months after writing it. Much later came email and the the web. So this blog is sort of version 2.0 for me.

As I morphed from New York trial lawyer to vagabond bohemian, I used almost every travel conveyance known to man, usually in second class, and slept in almost every kind of budget accommodation, often in a state of some discomfort. A couple of random lessons from that trip still pop into my brain when evaluating and trying cases.

That's because you can't take law in a theoretical vacuum. Jurors can't be pigeonholed by race or sex, or by any level of economic or social level, though lawyers always try. When people have lived lives, often of spectacular diversity that you can't even begin to unravel in the few minutes you speak with them in voir dire, you come to realize the difficulties encountered in those few minutes you might have with each person.

And it also means that just because a judge tells jurors that they can do something doesn't mean they will, because their own life's experiences will get in the way. The law, for instance, may tell me that I must prove a case by a preponderance of the evidence. Just a smidgen more than 50%. But that doesn't work for some jurors. If they are going to shift the status quo, most want to see more, even if the judge tells them they don't need to have it.

One lesson on the law came to me as I rode the roof of a bus in India. It's called assumption of risk. There are times when each of us elects to take our chances to do something or go somewhere, chances that are purely elective. This is the general state of the world, and assessing those risks comes with living a life. And so if you've been hurt solely by your own hand due to the risk you've undertaken, please don't call asking for representation to blame someone who is blameless. Even if they have insurance. Because it isn't just me that won't be interested, but the jurors won't be either. Humans are not blank slates and do not magically become so when called for jury service, and most people will be more than a bit resentful if you try to treat them that way.

Another lesson also came on that same ride, as I watched the conductor climb out the door of the moving bus as we wound through the mountains, use a window frame for a step, and climb up to the roof to collect a few rupees. I came to appreciate the significance of our labor laws.

Other lessons came to me as I realized the significance of my own wealth. I had an American passport and an education. That alone, without more, put me at the top of the heap luck-wise, before even considering that I was able to afford the $2,500 round-the-world ticket that I bought on Pan Am. I was fortunate to have picked my parents well. And I learned not to sweat the small stuff. So please don't call me if your injury is small and you will make a full recovery in very short order. The jurors have had small injuries too. It doesn't mean they brought a suit for a gazillion dollars, the way some folks want to do. Sure you may see such suits in the papers from time to time. But only when the suit is brought, not when it is dismissed later on or settled for a microcosm of the initial demand. Sometimes you just have to count your blessings. Some commenters thought I wasn't compassionate enough for the guy who claimed to be trapped in the toilet of a JetBlue flight. Now you know why.

But possibly the biggest travel lesson had nothing to do with the law, or trying to find code violations in this Phi Phi Island hotel you see to the right. (Best two bucks I ever spent. Pants were extra.) And that is that life is short and if you want to do something, then you had better go do it. Sooner rather than later. Traveling will not be easier to arrange five years from now, if that is in your mind. Nor will starting up your own practice.

When I decided to start my own practice on my return, it wasn't with any grand plans. I just wasn't quite sure what I wanted to do next and decided to do some per diem legal work while I mulled it over. And so began the simplest start of any law business: I bought business cards. Then taped one to a white sheet of paper and xeroxed it onto good paper and I had letterhead. I rented a drop at Mailboxes Etc., and I was in business. I answered some ads for lawyers needed for depositions and court conferences, and typed reports on the old Smith Corona. I used this stuff called carbon paper. You can find it in museums.

I went from doing high-end medical malpractice actions prior to travel, to being a rent-a-lawyer that was faxed a few sheets of paper the night before conducting a deposition in the courthouse in a small auto accident case. The firms that hired me, often without even knowing who I was or asking about my experience, were not exactly engaged in the highest form of lawyering. It was a big come-down, but if I was going to take a shot at my own business, starting with rather limited funds, the time to do it was at 29, not 49.

The business didn't stay quite that small, of course. I found some medical malpractice cases in some offices that weren't be worked up (or more likely, they found me), started trying cases with success and arguing a couple of appeals. I got an office, and a computer. I cut off the ponytail I had grown. I'm now in business for myself for 19 years now and sitting in my third office location after leaving the home version.

I'm not going to claim it was easy. Working for yourself as a small business is a big stress, regardless of the type of business. And the lousy cash flow economics of personal injury law, where you front the case expenses with your own money for years on end, virtually guarantees that growth will be slow. And that assumes you chose your cases wisely and won, and therefore got your disbursements paid back and actually made a fee.


But it has been a fun ride, and I have no regrets. Going out on your own is very much an adventure, in this case one that I stumbled into. But it's one I'm glad that I undertook. Whether I change again sometime in the future to link up with others is not something I know, only something I am open to. But that is because I try to continue on with an open mind on all sorts of things. You can't see much when you're mind is closed.

Trying new things led to the creation of this blog, without really knowing what, exactly would come of it. Are there risks in writing stuff (or publishing pictures) for anyone to see? Sure. But you also never know where it will lead. (And it may lead nowhere, so I try to make sure I enjoy it, simply for the sake of doing it.)

It was that open mind that also allowed me to say yes when my five year old said he wanted a mohawk earlier this year. Because hey, I know what it's like to have once had a full head of hair, and to enjoy it while you can.

Labels: Odds and Ends

You haven't seen too much in this space lately because the practice of law always trumps blogging.

But these items jumped out at me and deserve a read:

The truth about Texas tort "reform" (TortDeform);

Last week Ted Frank took to task Marc Rodwin, the author of a study that debunks the idea of a crisis in medical malpractice premiums. Rodwin responded; And then Frank fired back.

Dear Diary, Ruthie had put up Blawg Review #160. Please check it out;

Brooks Schuelke puts up Personal Injury Law Round-Up #63;

The Daily News says to dump dangerous doctors and screen the disproportionate share of doctors that get sued so often (PopTort);

Some really interesting legal drafting. I mean the kind you've never seen before (Quad Cities);

And last: Did you know I was a healthcare blog? Seems I missed the HealthCare100 by thismuch.

Today's New York Times has an editorial on doctors saying they are sorry for mistakes, and the dramatic decrease in litigation that results. This philosophy of apology is anathema to many doctors, who according to a study, still cling to the White Coat of Silence in covering up their mistakes and those of their colleagues.

A couple dramatic examples from the Times editorial, which follows a May 18th story on the subject:

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

This drop in claims comes as no shock to me, since one of the primary reasons people make that first call to a lawyer is anger at being mistreated or being unable to get information. That doesn't mean they have a viable lawsuit of course -- any decent medical malpractice attorney will decline 95% or more of the inquiries -- but it is often the reason for the call.

I wrote about this subject a year ago (see: More Doctors Encouraged To Say "I'm Sorry") and said:

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

So empirical evidence is now supporting the anecdotal evidence that I have acquired over the past 20+ years of medical malpractice litigation.

Just as in politics, and so many other things, the cover-up is often much worse than the initial mistake. Because while the accident may be negligence, the cover-up is an intentional act of deception. And when that deception comes from someone that you have trusted your life with, the sense of betrayal is profound. There are few emotions in this world that can compete with the sense of betrayal.

So if doctors and hospitals want to put me out of business, then say you're sorry and act like the decent people you likely are when things are going right. But if you want to keep me practicing medical malpractice litigation, then keep turning your backs on the patients when things go wrong, and let them make that upset and angry phone call to me.

Labels: Medical Malpractice

Double amputee Oscar Pistorius of South Africa can compete in the Olympics with prosthetic legs, according to the Court of Arbitration for Sport (ABAJournal and JammieWearingFool, with video);

New York lawyers sue attorney general over pension probe (Adjunct Law Professor Blog);

A study debunks the medical malpractice crisis (Ambrogi @ Legal Blog Watch);

Lawyers average salaries place them on 17th on list (Elefant @ Legal Blog Watch;

The whistle gets blown at Blawg Review #159;

Brooks Schuelke brings us Personal Injury Law Round-Up #62;

Senator Russ Feingold has an op-ed on arbitration clauses (TortDeform);

An incoming law student learns how easy it is to trash your internet reputation (Above the Law); and

Live-blogging U.S. v. Feiger, to watch Gerry Spence in action (Norm Pattis)

Labels: Random Notes

A new account of the JetBlue toilet lawsuit by Gokhan Mutlu is now out, differing substantially from the original story. The version that was in the news on Monday resulted from a $2M suit filed in New York for forcing this passenger to sit in the toilet. The story sounded "ludicrous" to me, and I said so (See: Jet Blue Hit With Toilet Lawsuit).

While JetBlue didn't respond in public to the allegations, another version, albeit third hand, dripped out in the comments in my blog in the post above.

According to this account, Mutlu was riding free and the captain was the one who got him on the flight:

He begged [captain] to help him get on flight - excersising Caring value CA said he would ASK jumpseating (Not [deadheading]) FA if she was willing to give up seat for pass rider. She was.

Then when the captain went to answer the call of nature mid-flight:

When on bathroom break, non rev approaches barrier and again really thanks CA for helping him get on. CA replies no problem - I didn't really do anything -if you want to say thanks its the FA who gave up her seat..have a nice day.

And that, apparently, was the last the captain saw of the man until after the flight:

Sees nonrev after flight - very upset. He let [flight attendant] sit in his seat and she fell asleep. Other FA's would (correctly) not let him sit on FA jumpseat. He was too timid to wake up FA and didn't know what to do.

I can't say if this is inaccurate water-cooler gossip or an accurate account. The account is likely a mixed bag, as most such stories are when passed along like the game of telephone, but I think it's safe to say that JetBlue's account will likely vary substantially when they do respond to the suit.

The original story just seems a bit too bizarre. There would simply be waaay too many witnesses for any flight crew to allow such a violation of flight regulations to occur -- and it would involve the entire flight crew letting this happen. I remain skeptical of the original account.

More:

• JetBlue Sued by Man Forced to Ride in Lavatory (Lowering the Bar)

  [T]his guy (and/or his lawyer) is demanding more than the entire lifetime economic output of most Americans as compensation for being required to sit on the toilet for about three hours.
  
  I had a roommate that used to do that for free.

• Man Claims Jet Blue Made Him Sit in Airplane Lavatory for Hours ($2 Million Lawsuit Included) (The Gothamist)

  If this is what a Jet Blue "buddy pass" is, we totally pass.

• Follow-up: Forced to sit in the toilet stinks, but does it deserve $2 million (Gadling)

  My point, which is really a question, is this: Why $2 million? Although I am on Mutlu's side, for what that it's worth, I'm wondering whether his suing JetBlue for $2 million doesn't seem a tad, well, greedy, like he saw an opportunity (no doubt goaded by some lawyer) for a quick pay day and took it.

Labels: Interesting Cases in the News, Personal Injury

I'd previously written of how Dennis Quaid's newborn twins were victimized by malpractice when they received a massive overdose of heparin.

And I'd also written how he sued Baxter Healthcare over the mix up.

Today he testified before Congress. This is the most important quote:

"Like many Americans, I believed that a big problem in our country was frivolous lawsuits. But now I know that the courts are often the only path to justice."

Those who advocate tort "reform" generally have this in common: They've not been seriously hurt by someone else's negligence and never imagine it can happen to them.

Labels: Dennis Quaid Lawsuit, Medical Malpractice

Raymond Marquez smoked for 30 years and then quit. Then, after being locked up at Rikers Island for 29 months awaiting trial, he got bladder cancer. He blamed the City of New York for the cancer, since the city's Department of Corrections runs the jail and permitted indoor smoking while he was there. Smoking is the leading cause of bladder cancer.

According to Marquez, smoking indoors was permitted between 1998-2001 when he was awaiting trial, and that the secondhand smoke traveled through the ventilation system. The policy changed in 2003 to ban indoor smoking.

While Marquez said he had smoked from age 15 to 45, he also said that he had stopped for 23 years. He also claimed, incredibly, that he never inhaled. The medical underpinning of the suit was his claim that after 20 years of smoking cessation the risk of bladder cancer is as low as that of a non-smoker. The 78 year old plaintiff said, therefore, that the cancer must have come from the jail house smoke.

A New York jury that returned a verdict Friday didn't think much of the claim from the plaintiff, who used to be "the foremost kingpin of the city's illegal numbers rackets" and was known as Spanish Raymond. He had previously pleaded guilty to gambling charges, but was acquitted of the new charges. (The acquittal was not before the jury.) And after a two-week trial on the smoking case, and just over an hour of deliberation, the jury tossed it.

When I first heard about the litigation, it sounded like a dog, and I don't know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff's son, who happens to be a local attorney. (I once went down that road myself, representing my father, with thankfully much different results.)

It seems now that the city wants to use this suit for its propaganda benefits, claiming in a press release (below) that this is an example of "ridiculous lawsuits." Using anecdotes is a fairly typical method of trying to win tort "reform" arguments, but it is also pretty useless in this setting. Pulling out the bad cases for display to the public tells you nothing about the good ones that the city remains mum on.

(Full Disclosure: Defense counsel Scot Gleason is a good friend of mine who has also worked for me in the past on an "of counsel" basis.)

See also:

• NYC jury rejects former inmate's secondhand smoke lawsuit (Newsday)
• Ex-Inmate Loses Lawsuit Over Secondhand Smoke (New York Times)
  
• New York City Law Department Press Release: RaymondMarquez.DOC
• Harlem numbers king sues city for $15M (HarlemWorld, 3/11/08)
• Harlem numbers king taking on city with $15M secondhand smoke suit (Daily News, 3/10/08)
  

Labels: Personal Injury

Another day, another idiot. I see the headline, "NY man sues airline over flight spent in toilet," with a demand for two million bucks, and all I can think is, Did the tort 'reformers' pay them to do that?

It isn't even Christmas yet. Not even close. And yet there seems to be this compulsion to hand gifts to corporate protectionists trying to slam the courthouse doors closed.

The basic facts of the story are that the plaintiff was allowed to board a packed Jet Blue flight, but was then told he had to sit in the toilet for the second half because a flight attendant needed his seat. While the facts seem ludicrous, I'll give the guy the benefit of the doubt for the moment that someone effed up by putting one too many people on board, and that he deserves compensation of some kind (and that the FAA should investigate). If everything he says about the facts were true, as reported in the newspaper, a free ticket or two would certainly be in order. That's why we have Small Claims Court.

My beef is with the idiotic demand for millions for "extreme humiliation" in New York's Supreme Court.

Where do I start? How about here: The lawyers who brought this suit don't do personal injury law for a living. How do I know this? Easy. They sued for $2,000,000 for personal injuries. Except that every personal injury attorney in New York, or at least every one that does this on any kind of regular basis, knows that New York banned the practice of monetary demands in personal injury suits years ago. (See: New York Cleans Up Claims Act)

So after getting the big tip off that this firm didn't practice personal injury law, I logged on the court's computers to double check. The suit was brought by a firm called Akin & Smith. And if you check their web site you will see that they practice in the field of employment and discrimination suits. I see nothing about personal injury. [See Update 1 below]

Hey guys, thanks a lot for helping to smear those of us that actually practice in this arena. Really, we appreciate it. I have three cases coming up for trial for people whose lives have been profoundly altered by negligence, and now I have to hear jurors talk about crap like this?

If this guy sues JetBlue for extreme humiliation for what they did to him, can attorneys who actually know what they are doing sue him for what he has done to us?

Update 1 -- 5/15/08: It seems I missed the mark on whether this firm does personal injury work. I recieved this email about the firm from Louis J. Schepp:

You talk about the plaintiff's attorneys, Akin & Smith as not doing personal injury work. During my days (29 years) at Liberty Mutual, I had dealings, in the last few years, with this firm in cases involving personal injury in both State and Federal Court. They do a sufficient amount of personal injury work, that they should know the rules about ad damnums, but may have wanted to get the press that large ad damnums bring.

On the other hand they may have wanted to start the clock on removal as soon as possible. Putting the ad damnum in the complaint is good strategy, (the statute does not provide any real penalty for putting it in) as it starts the time running on Federal court removal. I had a number of cases that I removed to Federal court, that I would not have been able to do so, if the ad damnum had been in the complaint, since the 30 day time limit is unforgiving.

Update 2: JetBlueLoo Follow-Up: What Really Happened? (5/15/08)

------
Link is via TinyURL redirect, so their website doesn't benefit from any Pagerank as a result of this post.

Labels: Personal Injury

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork -- active tort "reformer," conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate -- to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I've covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn't really specific). Among the demands were:

• An amount "in excess" of $1,000,000 in compensatory damages;
  
• Punitive damages;
• Legal fees
• Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don't know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn't really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That's worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn't know the law, and didn't hire someone who did. (In fact, Judge Bork's BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit "embarrassingly silly." It was so bad that Judge Bork's own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court's computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court's calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork's reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani's judicial search committee, and then earlier this week to John McCain's. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.

Labels: Bork Trip And Fall Suit

From a family doctor at Musings of a Dinosaur, comes this worthwhile read: Managing Risk:

"Despite its bad rap, the legal system really does work more often than it doesn't"

The Mommy Blawg hosts Blawg Review #158;

John Guyette from the Center for Justice and Democracy gets the call for jury duty, which he recounts at The PopTort; and

Brooks Schuelke puts up Personal Injury Law Round-Up #61, that includes among its nuggets this medical malpractice story of a screwdriver being substituted for a titanium rod in back surgery.

Labels: Random Notes

The brouhaha that started out on Long Island with part-time private lawyers being listed as full-time public employees in schools and getting pension benefits, has now mushroomed into a full blown scandal. According to tomorrow's New York Law Journal, New York Attorney General Andrew Cuomo is predicting that "hundreds and hundreds" of attorneys will ultimately be implicated in his office's investigation of government entities improperly enrolling non-employees in public pension funds.

And this is the scary part, while "there will be people beyond lawyers" found to be receiving improper public pension benefits, "the predominant class will be lawyers."

The story broke February 15th with this story in Newsday after an investigation by auditors with the New York State Comptroller's Office: Five districts falsely reported lawyer's job status. At that time a part-time municipal attorney found to be on the employment rolls of five different school districts defended himself by saying it was "common practice." It appears now that that may have been true, that it was common practice. But if everyone in your area runs a stop sign, it is no defense when you get busted to say that everyone does it.

Careers are about to go up in smoke. Many, many careers. This "PensionEsq." scandal will be with us for a long, long time.

Scott Greenfield, author of Simple Justice (and criminal defense lawyer extraordinaire) has been providing extensive coverage to date:

• The Busiest Lawyer on Long Island (2/15/08)
• Let's Not Forget Who's Minding The Store (2/17/08)
  
• How To Explain Why the Lawyers Were So Wrong (4/4/08)
• Oversight needed on special-district lawyers (Greenfield op-ed in Newsday and open thread at his blog on it)
  

Updated with commentary/news on the scandal:

• "The Predominant Class Will Be Lawyers" (5/9/08; Greenfield):

  The patchwork quilt of what I call "baby governments" is rife with corruption, but it's mostly of the petty sort. A dime here, a dollar there, a harmless little violation of the open meetings law, a blow-off of the freedom of information law. Selective and vindictive resolution of problems or enforcement of law. That sort of stuff. The sort that allows the big fish in tiny little ponds to feel self-important and powerful, all on someone else's dime.

• Pension Probe Will Snare 'Hundreds' of Attorneys, N.Y. Attorney General Predicts (5/9/08: Albany's Insanity)

  For those of you that continually come out and defend the inept governments of this state, for those of you that just love to personally attack people like us for calling it like we see it, just read, it is just like we have been saying for years, time to open your eyes, take off the blindfolds and go after this crap.

• Cuomo Sees Fraud in Some Lawyers’ Pensions (5/9/08; New York Times)

  Over the years, Mr. Cuomo said, the benefits have become a standard and expected perk for the lawyers, who often have political ties to the officials handing out the benefit. The system has proliferated, Mr. Cuomo suggested, because of New York’s profusion of state, county and local governments.

  
  

Labels: Attorney Ethics

OK, this has nothing to do with personal injury law. So if you came here just for that, you can leave now. This has to do with running.

For the second time in seven months I find myself gracing the front page of the local sports section, with the photo you see at right looming large in the center of the print version. (The first time was October 14th, with a substantially geekier picture, not that I look so sharp here.) It's a feature story about trails in Westchester County, just north of NYC.

But here's the important part about the piece: This past winter local officials linked together numerous parks in to create the 12+ mile Colonial Greenway, which loops its way through numerous Westchester communities that line Long Island Sound. The fact that such a thing can even be created in one of the most developed suburban areas of the nation is incredible. And the fact that the trails pass through different jurisdictions made creation of the system a difficult task, with different people responsible for different sections.

Just to give some perspective on what has been created, it is possible to hike or run 15 miles or more (depending on which trails you choose) without ever doubling back or even crossing your own trail, with 90% of that loop on dirt through the woods (a few street sections are unavoidable.) There is really nothing quite like it in the New York metropolitan area.

I started running these trails back in 2000, and spoke to local officials about linking them together in 2002. Now, six years and many meetings later, signs are up, trails are blazed, and money has been allocated for improvements throughout the system.

I'd like to find some analogy to the law, but the best I can find is that working with public officials in numerous jurisdictions is somewhat like litigation. It can take a long time, but if you prevail, it is worth the effort.

When the trail gets officially dedicated, I'll return to the subject.

The map is here:

Labels: Running

This is one of the weirder legal arguments I have seen. And it comes today on top of the very weird subpoena that had been issued by Virginia attorney Clifford Shoemaker to New Hampshire blogger Kathleen Seidel a few weeks ago.

The brief background is that Shoemaker represents Lisa and Seth Sykes in a Virginia suit over whether mercury in vaccines causing autism. Seidel isn't part of that recently discontinued suit; she is just a blogger (albeit a very knowledgeable one) in New Hampshire who writes on the subject at her blog, Neurodiversity.

Now Weird Move #1 came when Shoemaker served a subpoena on Seidel asking for all kinds of crazy stuff that has nothing to do with his suit, including production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com." This included the out-of-this-world crazy demand regarding "religious groups (Muslim or otherwise), or individuals with religious affiliations"(See: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena).

I, and many others, suggested sanctions might be in order and, lo and behold, the judge agreed. (See: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned) I can't be the only one waiting to see the justification for what appears to be religious fear mongering, among other issues in a subpoena that seems dedicated to harassing Seidel.

So that brings us to today and Weird Move #2, wherein Shoemaker hires local counsel in New Hampshire to defend him against the potential for sanctions, that he was ordered to do within 10 days. And local counsel, to no great surprise, needs more time to respond due to the press of business. A perfectly reasonable thing to ask, mind you, and an application 99% of judges would grant. Except for some itty, bitty, little details.

In the motion papers, one of the new lawyers (John McHugh, based in New York) decides to take this pot-shot at Seidel instead of just asking for more time:

[Seidel] and her associates have done more than comment on these positions; they have taken action to discredit the Sykes family, Lisa Sykes as a minister of the United Methodist Church, and witnesses who have given support to the family's positions. They have interfered with these witnesses' professions, professional relationships, and economic opportunities.

Last time I checked, the First Amendment hadn't been repealed. Criticism is fair game.

But wait, there's more! After slamming Seidel, the new counsel then goes on to admit that:

However, your Declarant is new to this case and to Ms. Seidel, and while I have been attempting to gather the information needed, I have been unable to complete that
task due to the press of other work as well as the fact that Mr. Shoemaker has either been in hearings or preparing for imminent hearings, all in other cases, or taking third-party depositions in this action since he received this order. While I have interviewed some victims of Ms. Seidel's activity, I have not yet been able to gather the material I would need to show the Court the justification for the Subpoena and its scope. (Emphasis added)

So Weird Move #2 actually manages to include a few different issues:

• Why is it necessary to look for justification for the subpoena after it was issued?
  
• Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It's only Shoemaker's rationale that matters to the sanctions motion.
  
• If Shoemaker has no time to talk to his counsel about Seidel and the subpoena because Shoemaker is up to his eyeballs in hearings, why is local counsel trash talking Seidel in the motion papers?

Shoemaker seems to be speeding toward a sanction. Here's the motion: SykesMotion.pdf

Labels: Attorney Ethics

Robert Bork's lawyer, Randy Mastro, has been tapped as a member of Senator McCain's steering committee for judicial selections. Mastro is currently a partner at Gibson Dunn, and a former Deputy Mayor under Rudy Giuliani.

Of interest to this blog, however, is that he fouled up Judge Bork's trip and fall lawsuit against the Yale Club, causing embarrassment to the former judge due to claims for "in excess of" of million dollars, punitive damages, attorneys fees and prejudgment interest. Mistakes were made in the Complaint (and the Amended Complaint) that even rookie lawyers wouldn't make. I chronicled many of the unnecessary legal problems that were created by the botched suit here:

• Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees
• What Should Bork Do Now? (my suggested amendments to the suit)
  
• Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages (My open letter to Bork on the Amended Complaint)
• Bork's Attorney, Randy Mastro, Picked For Giuliani's Justice Advisory Committee
  

And so it appears that the old adage remains true: It isn't what you know, but who.

See also:

• McCain Says He Would Put Conservatives on Supreme Court (Washington Post)

(Hat tips to Scott Greenfield and Walter Olson)

Labels: Odds and Ends

Former New York Gov. Eliot Spitzer entered private practice yesterday with Spitzer & Associates. Part of his practice will be personal injury law, among other matters within his unique world view. This includes, as he makes clear, some unique slip and fall cases as well as defective product litigation.

His entire announcement is here:

Labels: Eliot Spitzer

Michelangelo's David returns to Florence badly damaged after a short stay in the U.S.;

Kevin, M.D. on what makes a good medical blog (DocBlog?), all of which pertains equally to law blogs;

Brooks Schuelke puts up Personal Injury Law Round-Up #60;

Blawg Review #157 is up at Labour Law;

And Medical Humanities puts up Health Wonk Review, referring to this blog as "a general must-read on tort law and medicine." Yeah, that gets a link.

Labels: Random Notes

Some New York judges have taken aim at the law firms of legislators for cases pending in front of them, due to the failure of the legislature to give them a pay raise, according to the New York Post. New York's judges here have not had a pay raise, even for cost of living, for nine years.

According to the Post, emails have circulated with titles like "How to Get Our Salary Adjustment," and the e-mails have included a "blacklist" of 50 state legislators who are registered as attorneys and the firms where they are employed.

A prime target is Weitz & Luxenberg, with thousands of asbestos and other mass tort cases pending in New York's judicial system, because Assembly Speaker Sheldon Silver is a partner at the firm and is blamed by many for the delay in passing legislation for the salary increase.

Particularly interesting is that some judges are recusing themselves from cases that involve the Speaker's firm. This money quote comes from the Post article:

"I think the speaker is a slug," said Cattaraugus County Judge Larry Himelein, a Democrat who said he couldn't be fair to Silver's firm. "The whole New York state political process is a joke."

According to the article, "judges say the recusals are about avoiding any conflict of interest because of the ongoing pay dispute."

But if the judges claim to be biased against the Speaker's firm then, of course, the opposite must also be true: They will be forced to recuse themselves from any case where Wachtell Lipton is counsel, as that firm is representing Chief Judge Judith Kaye pro bono in her suit on behalf of the judiciary in favor of pay raises against Silver, Senate Majority Leader Bruno and Governor Patterson). (See: Wachtell and Judicial Ethical Violations in New York's Judicial Pay Raise Suit?)

The pay raise issue will be no doubt be the source of additional litigation by savvy attorneys who don't want judges sitting on their cases when Wachtell is also appearing in the case. This work slowdown by judges on Weitz & Luxenberg cases will be powerful evidence of bias in the judiciary for those firms involved, on both sides.

Addendum: Last week, the state's Advisory Committee on Judicial Ethics issued this opinion that Chief Judge Kaye's lawsuit on behalf of the judiciary does not require judges to recuse themselves when a legislator appears before them as counsel, or his/her firm, or a firm representing one of the parties, but that they may do so as a matter of individual conscience.

Regarding my post on Wachtell's appearance, the advisory opinion states:

Regarding the appearance before a judge by a member of a law firm representing one of the parties in the Chief Judge's litigation itself, we note again that the inquiring judges are not named parties in that lawsuit. Consequently, the law firms involved in that action neither represent those judges nor parties adverse to those judges. Accordingly, the Committee concludes that recusal is not required when a member of a law firm representing one of the parties appears (see Opinions 07-176; 01-24[Vol. XIX]).

The advisory opinion does not address the issue I had raised with respect to the substantial gift of pro bono services that was made, and accepted by Chief Judge Kaye, to the judiciary.

See also: Chief Judge Writes N.Y. Governor to Deny Work 'Slowdown' by State's Judges (NY Law Journal via Law.com)

(hat tip, Overlawyered)

Labels: Judiciary

Personal injury blogs have once again been ignored. This time it comes from the new web directory, Alltop. Constructed by web impresario Guy Kawaskaki, it's law page is chock full of great law blogs, some mainstream and some in small niches. My quick count shows 105 of them, and it has the potential to be a great resource for people to see who is writing about what in a single glance.

But not a single blog deals with personal injury law as its main subject. Now you would think that with all the yelling and screaming about tort "reform," jury verdicts, federal preemption, punitive damages and related subjects, that one or two blogs that devote themselves to the subject would be on the list. But they aren't.

Have we seen this before? Yup. (See: Vote For Me In Blawg 100!! (Oh Wait, You Can't))

So, in the event that the Alltop law page gets updated, here's a tip to Guy for a few blogs on the subject to consider:

• Bill Childs (TortsProf)
• John Day (Day on Torts)
• Beck/Herrmann on defending BigDrug and BigDevice (Drug and Device Law)
• Bill Marler on food poisoning (Marler Blog)
• Byron Stier and Howard Erichson (Mass Tort Litigation Blog)
• Perlmutter & Schuelke, publishing weekly personal injury round-ups chock full of links to good personal injury blogs
• TortDeform on civil justice defense
  

For goodness sakes, pick one or two from the list, or use some of the many other fine ones that I haven't mentioned. But ignoring an entire field of the law seems to be a mistake if the intent is to aggregate law blogs.

See also:

• Blawgs Get Kawasakied (Blawg Review)
• Blawg Stuff, How To Keep Up (Simple Justice)
• Finding Good Blogs (Deliberations)
• Law Alltop Launches (The Inspired Solo)
  

Labels: Blogging