New York Personal Injury Law Blog

Why is SimmonsCooper Spamming My Blog?

2009-01-09T10:00:00.008-05:00

Every blogger gets spam. I expect it from the various hustlers who permeate the web. But I didn't really expect it from a law firm. From a big law firm.

SimmonsCooper* is a personal injury firm in Illinois. They focus on asbestos litigation and the disease it causes, mesothelioma. According to their web site, they have 17 partners and 39 associates and of counsel talent on hand, so this isn't a small shop.

But apparently SimmonsCooper thinks it would be a mighty fine idea to send spam advertising to my blog in the comments area.

The first message came in January 2nd, and I deleted it and ignored their transgression. Then they did it again today. The post they were spamming was a September 17, 2007 piece on the Graves Amendment and immunity for car renting/leasing companies. Not a lot there about asbestos, I'll tell you that. But that didn't stop them from posting this drivel: If you or someone you know has been diagnosed with blah, blah, blah.

Note to SimmonsCooper: That's pretty scummy stuff. It's also a waste of your time and resources because:

1. The note is old and unlikely to be read by many;

2. Those that do read it aren't looking for an asbestos attorney; and

3. You get zero Google juice out of it because my blog, like others, has a "do not follow" command for the comments area so that spammers don't waste their time polluting our little publications.

If you want to advertise your services, go ahead. Knock yourself out. It's legal because of that First Amendment thingie. I've got a web site too. Nothing wrong with that concept. I have to hope that any lawyer that does advertise will do so in a dignified manner.

But sending spam to my blog is not dignified.

Now I'm going to take a guess here and say that SimmonsCooper hired some idiotic SEO company to spread their name around. Perhaps they are ignorant of the fouls being committed in their name, or perhaps they are simply turning a blind eye to what their agents are doing in their name. Perhaps they are just shocked, shocked, I tell you, that their agents would behave in such a slimy manner.

I can only hope they pick their experts in a better fashion than the people who do their marketing.

----------------------------------------------------------

* Link is via a TinyUrl redirect so that the spammer doesn't profit from any Google juice due to this posting.

Avvo: "No Concern" Over Convicted Sex Offender

2009-01-05T20:11:00.006-05:00

Avvo, the lawyer rating service, says it has "no concern" over a convicted New York sex offender, whose license was suspended last week. Steven J. Lever, a former Kirkland & Ellis associate, was the subject of a sharply divided opinion from New York's Appellate Division, First Department, with a three judge majority suspending him for three years over the dissent of two others that sought to have him disbarred. The lawyer plead guilty in September 2005 to sex offense charges related to soliciting sex over the internet from what he believed to be a 13-year old girl. (See: Sex Offender Keeps Law License)

The Avvo opinion on Lever gives their definition of "no concern" as follows "We have not found any instances of professional misconduct for this lawyer." (Pdf version here: Avvo-Lever.pdf)

Avvo also says it has found "no misconduct" regarding the lawyer, with the definition of "no misconduct" being exactly the same as "no concern:"

"We have not found any instances of professional misconduct for this lawyer."

Avvo has been oft criticized for its ratings because the subjective nature of lawyering isn't truly amendable to any rating system. Avvo had contended that, while the subjective part was difficult, the objective part of rating attorneys by looking for misconduct actions was something it could do.

While I wouldn't expect last week's disciplinary decision to be reported in just one week, the actual criminal action against him was resolved three years ago. And Avvo missed it. (There are also zero comments by others on the Avvo site related to this lawyer.) If it is Avvo's policy not to research crimes committed by attorneys (and I'm guessing that based on the fact that they didn't report this sex crime conviction), then even its limited value of analyzing objective data is a failure.

Avvo thus apparently fails not only with the subjective rating system, which defies quantitative analysis, but also with the limited objective analysis of data that it aspires to. Because if you don't find the data, the analysis isn't worth squat. Garbage in, garbage out.

See also on Avvo:

Avvo: My chat with Paul (Simple Justice, 6/27/07)
Avvo Responds to Lawsuit and Critics (WSJ Law Blog, 6/29/07)
Avvo Rating System: Thanks, But I'll Pass (3/2/08)
Why AVVO Will Hurt Lawyers (Build a Solo Practice, 1/7/09), with more links at Lawyer Rating System Endorsed by WSJ - Does This Make You Feel Better? (12/27/07)

And previously regarding Lever:

Just How Much Moral Turpitude is Too Much? (Simple Justice)
Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years (NYLJ)
A Tale of Two Lawyers (Maryland Injury Law Blog)
Lawyer Who Sought Sex with 13-Year-Old Suspended (Village Voice)

My Blawg Review of the Year Nominations

2009-01-02T12:46:00.005-05:00

The anonymous Editor of Blawg Review has once again foisted upon those that have written a Blawg Review (or are currently signed up to write one) the miserable job of picking the "best" of the year.

The problem, of course, is that picking the "best" is highly subjective. There's no scale to weigh these things. And yet, someone must sit on this jury.

And so, since I'm now a juror, I'm going to pick based on who I think the best storytellers are. And that's because, as attorneys, what we do is tell stories to present our client's side of how something occurred. If a juror's eyes glaze over in boredom then being right won't help you. And woe unto the lawyer that self-promotes. Do either jurors or readers want to hear self-promotional stuff?

To keep the attention of jurors (or Blawg Review readers), I want to put them in the action. There are no warm-up comments, thank yous, explanations, or other time-wasting crap. Every opening argument I've ever given starts exactly the same way: "Today we turn to the clock back to..." and off we go into the middle of the story where I like to start. It's all about the story. Jurors need to be interested in what's going on. And so do review readers.

Mere lists of facts can be boring. I don't generally use them unless I have to.

It can also be hard to shoehorn posts into specific legal topics for a Blawg Review, which many try to do to fit the theme of their blogs. It's a trick that is tough to pull off. But tell a good story, and leave yourself open to any facts (good blog posts) that you see, and you've opened the review up to range near and far on anything of interest.

In fact, when I did my reviews based on the NYC Marathon and Thanksgiving with Arlo Guthrie, storytelling was the technique I used. I kept away from legal themes and I focused on social gatherings, where anyone can talk about anything. I didn't spend any time with introductory comments. Chuck a little fantasy into the mix of putting people at your side during a race or a dinner, and you can go anywhere with the story so long as you grab their attention and hold it. And I tried, as much as possible, to do it in such a fashion that readers would want to click the links and be sent away from my review. Because that, after all, is the idea behind these weekly reviews.

And so, without further ado, I nominate these three storytellers for Blawg Review of the Year, followed by eight Honorable Mentions:

Rush Nigut of Rush on Business took us during Blawg Review # 147 on the annual Register's Annual Great Bicycle Ride Across Iowa. He was kind enough to put bloggers right into the middle of the race. Without Rush, I never would have learned about Mr. Pork Chop.

Mistress Ruthie hosted Blawg Review #160 at Ruthie's Law, captivating this juror not with the story, but with the persona of the storyteller. She (?) doesn't waste time with an introduction explaining what she is doing. She just does it. And you get it. And you merrily click on links and come back for more amusement. The law doesn't feel like work.

Greg May at the California Blog of Appeal hosted Blawg Review #155 dedicated to bad poetry and stress. Instead of one long story, he has lots of little ones. Sometimes in verse. Since the way he told the stories made me want to click on the links, he gets one of my nominations.

Having done that, I also need to give an Honorable Mention to the following:

Charon QC at Blawg Review #141, set the bar high at the start of the year with a review that puts many others to shame. Even if you never clicked a link, the review was (and is) worth reading for the wordsmithing alone.

Marc Randazza at the Legal Satyrcion did a brilliant job on Blawg Review #190 Bill of Rights Day. Did I say previously that "mere lists" can be boring? Or sticking to legal themes often doesn't work? Well the Bill of Rights is the greatest of all Top Ten Lists, and Randazza picked a legal theme for sure, and proved me wrong on both counts on how to put a review together. Easily one of the ten best of the year.

Mediator Victoria Pynchon at The IP ADR Blog picked virginity as a theme for Blawg Review #171. Now how bold was that? She also happened to have done what appears to be the longest review of the year, chock full of so many links it boggles the mind as to how long she must have worked on it.

I liked Joshua Fruchter's Blawg Review #187 on Evolution Day at his site LawyerCasting. Since the law, and the practice of law, is constantly evolving, it is a theme that lends itself to most anything the writer wants, and in this case he successfully integrated his theme with his practice area. And that is a tough trick to pull off.

It's worth noting that some had difficulty sticking with the themes they picked, and they wisely abandoned them rather than try to force the issue. George Wallace at Declarations and Exclusions went with a pirate theme at Blawg Review #153, before admitting (aaargh) "We have no posts to link actually involving pirates, in the traditional non-intellectual property sense, but we can present a selection of items dealing with more shorebound offenses." And off he went for a great review, albeit having little to do with piracy.

Perennial Blawg Review of the Year winner Colin Samuels, at Infamy and Praise put up a daring Blawg Review #189 with the Rime of the Ancient Mariner theme. While picking one of the great stories of literature to tell, he ran into problems when he realized he couldn't quite sustain the literary element with a journey through the law. (Of course, it didn't stop him from doing an exceptional and captivating review.) He wrote:

The Mariner chose a life at sea and experienced all that it offered -- the mundane and the extraordinary, the routine and the exceptional, the company of crewmates and the boatload of corpses. Similarly, our experiences with the law mix the usual with the unusual and....

Forget it. I'm reaching; you know I'm reaching. Let's end this charade, shall we? Look, I'll level with you... I need a section in this Blawg Review where I can put a number of excellent posts concerning substantive legal issues. I'm going to do it here and I'd appreciate it if you'd just nod and go with it, OK? Thanks.

David Gulbransen at Preaching to the Perverted did Blawg Review #182 in a very imaginative exam format, which perfectly suited the fact that he had just taken a blizzard of them.

Anita Campbell at Small Business Trends went with a straightforward list for her Blawg Review #177. And if you are going to go with a list, this is certainly the way to do it. Nice and clean. David Giacalone of f/k/a, who famously wrote that he often finds "themed Blawg Reviews to be annoying, strained and distracting" probably loved it.

Finally: To those nominated and those honorably mentioned, I've tried to find your law firm web site in addition to your blog to give you a little Google juice, because you earned it. I missed some, but if you send me the link, I'll add it in. Email: blog [at] TurkewitzLaw [dot] com

Chief Judge Kaye Keeps Door Open On Hillary's Senate Seat

2008-12-31T13:21:00.004-05:00

Dan Slater from the WSJ Law Blog interviewed New York's chief Judge Judith Kaye today on what she will do next now that she is retiring.

Two weeks ago I said she should be considered for Hillary's Senate seat, with Caroline Kennedy being a particularly bad choice. (See, Chief Judge Judith Kaye -- For U.S. Senate)

And the last question Slater asked was on that point. And the Chief Judge kept the door open with this non-answer:

We've heard rumors that you might replace Hillary Clinton in the senate.

I'm not thinking yet about my chapter three. You're still talking to the chief judge, Dan. Have some respect. [Laughter]

Sex Offender Keeps Law License (Updated)

2008-12-30T14:38:00.003-05:00

In a decision released today, a sharply divided panel of the Appellate Division, First Department determined that an admitted sex offender will keep his New York law license. A majority of three justices suspended the license of the admitted offender for three years. Two dissenters insisted he should have been disbarred. The case is Matter of Lever.

Steven J. Lever was caught in a sting operation when "he engaged in sexually explicit conversations over an internet chat room with an undercover police officer posing as a 13-year old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact." The then 30-year old patent lawyer, formerly at Kirkland and Ellis, had logged on to a chat room targeting older men and younger women. In six separate conversations over a period of three months he engaged in discussions with "significant sexual content" and then arranged to meet the girl at the Ronkonkoma train station in Suffolk County for the purpose of oral sex.

In 2005 he plead guilty to to the misdemeanor crime of attempted criminal sex act in the third degree.

The matter was first heard before a referee, who recommended just a six-month suspension, taking into account the mitigating circumstances that Lever had admitted to his conduct, cooperated with police, and that there was no actual contact with a minor, among other things.

The case proceeded to a six-member Hearing Panel that didn't appreciate the light nature of the referees six-month recommendation. The panel took the view that "preying upon ... minors for sexual gratification by means of the internet should be dealt with more harshly." A majority of the Panel therefore recommended that Lever be suspended for three years, or until the end of his criminal term of probation, whichever was longer, and that any reinstatement be conditioned upon a psychiatric evaluation. A sole dissenter on the Panel believed that a one-year suspension was appropriate.

From there the matter went to the Appellate Division, which resulted in today's divided opinion. In a per curiam majority by Justices Gonzalez, Nardelli, and McGuire, the court noted that "use of the internet to prey on minors for purposes of sexual gratification is despicable and dangerous misconduct, that has brought shame to himself and to this State's bar." They went on to write that "serious misconduct of this type necessarily requires a significant sanction that will convey to members of the bar and public that this Court will not permit attorneys who engage in such immoral and criminal behavior to continue practicing law."

But the majority voted not to disbar since they saw a distinction between an attempt to have sex with the minor and actually doing it. The court wrote:

Given that most State's penal statutes treat sexual contact with a minor as a higher-grade crime than an attempt to commit such a crime (as would be the case in a sting operation), there is no basis for us to ignore that distinction in attorney disciplinary proceedings. Respondent's sanction should be premised on what he was convicted of doing, not what he might have done if circumstances were different.

The majority went on to give great credit to mitigating factors in arguing against disbarment. They wrote:

Further, even if we agreed with the dissent that the offense, by itself, would ordinarily require disbarment, the substantial and credible mitigation evidence offered by respondent in this case requires us to consider a lesser sanction. From the beginning, respondent has admitted responsibility for his actions and has taken "uncommon" efforts to rehabilitate himself. After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was "low." Further, respondent cooperated with the criminal investigation and with Committee staff in their investigations, and he has no prior disciplinary record.

Justice James Catterson, writing in dissent and joined by Justice Saxe, called the act of dissenting in a disciplinary case an "unusual step" and urged disbarment, writing "I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing."

Justice Catterson went on to explain his reasoning as follows:

[Lever's] counsel characterizes [his] conduct in a three month campaign of seducing a girl that he believed to be thirteen years old as a "disturbing social problem." This attempt at minimizing the acute danger of sexual predators should be summarily rejected. I recognize that New York attorneys convicted of various crimes are routinely suspended and ultimately return to practice law after a suitable period of time. Of course, there is a very broad spectrum of crime from the venal to the mortal and the discipline imposed upon attorneys must necessarily reflect that diversity.

However ... we are charged with the duty of protecting both the courts and the public from unfit attorneys, and even attorney discipline must have some absolutes; some event horizon that dictates disbarment. Generally, conversion of client funds has epitomized that litmus test. I believe that a convicted and registered sex offender merits disbarment, even when the crime, as in the instant case, is inchoate.

Justice Catterson's point at the end, that taking client money is the most common reason for disbarment, is well taken. Readers are left to decide on their own if sexual predation is worse than the taking of money. I, for one, think it's a slam dunk, and hope the matter is appealed to the Court of Appeals so that this attorney is disbarred.

----------------------------------------------
Update, 12/31/08: The New York Law Journal has published a long article regarding this rare split decision on a disciplinary matter.

Blawg Review of the Year?

2008-12-29T21:27:00.003-05:00

The anonymous Editor of Blawg Review is once again setting up the selection of Blawg Review of the Year as a contest.

Since I did a Thanksgiving-themed Blawg Review (#188), with a little extra help from Arlo Guthrie on guitar, I have a vested interest in who wins.

Ed. has thankfully provided a short thumbnail sketch of each review, so if you are one of the people allowed to vote (see The Rules below) you will not be left scratching your noodle trying to remember which one was which.

Here are the rules, which Ed. has nicely labeled "The Rules," so we easily follow along...

The Rules
Any of the issues of Blawg Review #141 to #191, inclusive, is qualified to be nominated for Blawg Review of the Year 2008.

Every blog that has ever hosted Blawg Review, or is scheduled to host an upcoming issue of Blawg Review, is entitled to post its nominations of as many of the qualified issues of Blawg Review (other than one's own) as it wishes to acknowledge for consideration for recognition as Blawg Review of the Year 2008.

Such nomination posts shall be calculated as votes for Blawg Review of the Year only if the nominating blogger advises the Editor of Blawg Review by email of a link to such nominations.

After 11:59 PM, GMT, on January 31, 2009, the Editor of Blawg Review shall determine the Blawg Review of the Year that has earned the most qualified nominations recorded in posts of which the Editor has been duly notified by email before that time.

Editor reserves the right to amend these rules as may be necessary for the sake of clarity and fairness.

If you haven't done a Blawg Review, I would encourage it. If you're like me, it a great way to have fun. Of course, if you're like Greenfield, it can be a misery, which is to say, your mileage may vary.

One last thing: Unlike the ABA contest on the 100 Best Blawgs, in this one you can't stuff the ballot box, as is happening over there.

Chief Judge Judith Kaye, for US Senate, Gets A Bit of Attention

2008-12-29T13:56:00.005-05:00

The accolades for retiring New York Chief Judge Judith Kaye continue, with a story in today's New York Times. There is also a humble tribute to Kaye by Lawrence Cunningham at Concurring Opinions, calling her "One of the country's greatest contemporary judges." She leaves the bench January 15, 2009, having won admiration from people from across the political spectrum.

What will she do now? Two weeks ago I advocated that she be considered for the U.S. Senate seat being vacated by Hillary Clinton. Now Daily News columnist Bill Hammond makes the same suggestion.

The idea of Caroline Kennedy getting the seat because of her breeding makes me deeply uncomfortable. That is the worst possible reason to hand someone a Senate seat on a silver platter.

Anyone else think Kaye should be considered?

Chamber of Commerce Flubs Tort "Reform" Propaganda Campaign

2008-12-18T16:46:00.008-05:00

The Chamber of Commerce has blown its own propaganda campaign regarding frivolous lawsuits. At this website designed to spread the myth of the frivolous lawsuit as a bona fide problem, they mistakingly included a pro-consumer eight-minute video called Mr. Fancy Pants. If you hold your cursor over the pictures after the video runs, you will see which one it is.

The video was produced by Injury Board, a collection of plaintiffs attorneys, and discussed last year at TortDeform.

Whoever put the Chamber site together apparently didn't listen past the opening minute or so, which gives the propaganda angle. The rest of the video goes on to explain how the Chamber puts together their lobbying efforts and that judges already have the power to sanction litigants over frivolous cases.

I expect the Chamber to pull down the video after I post this, and perhaps slap someone upside the head for not bothering to actually watch the stuff they put up on their own site. I'm sure their corporate contributors will be delighted. Since it will likely disappear from their site, I'm putting the video here since it is also on available via YouTube. Enjoy the video...now being actively promoted by the U.S. Chamber of Commerce:

P.S.: These additional videos linked at the end of a clip are likely embedded by YouTube. If you look at the bottom of the video that I posted, for example, you will see unrelated "pants" videos. Which means that corporations that want to use this stuff need to re-code the YouTube videos to exclude those frames and links.

"Pants" Pearson Loses Bid for New Trial Against Dry Cleaner

2008-12-18T11:00:00.003-05:00

Former administrative judge Roy "Pants" Pearson, who infamously brought a $67M lawsuit against a dry cleaner for allegedly losing a pair of trousers, has lost his bid for a new trial. That he subsequently lowered his demand to only $54M didn't seem to matter (Previously: Pants Lawsuit Ends in Victory for Dry Cleaners.)

Covered extensively up down and sideways by every writer with a keyboard, the D.C. Court of Appeals has now weighed in to reject the appeal.

Pearson's claim, briefly summarized by the Court in a 23-page opinion, was:

Pearson's claims regarding the "Satisfaction Guaranteed" sign are premised on his interpretation that the sign is an unconditional and unlimited warranty of satisfaction to the customer as determined solely by the customer, without regard to the facts or to any notion of reasonableness -- a position he has consistently advocated both in the trial court and on appeal...

[Pearson] argued unambiguously that "[a]s a consequence of offering an unconditional guarantee of satisfaction a merchant is required to satisfy a consumer's demand for lawful compensation (for example, for any amount of money). (emphasis added by Court of Appeals, at page 13 of decision)

The trial court, said the appellate bench, showed "basic common sense" to reject the unlimited claims of Pearson and that Pearson's fraud claim "defies logic."

The court's opinion is rather matter-of-fact about the case, with a long recitation of the facts and extensive citation to case law. There are no gratuitous comments about the ludicrous nature of the demand, other than the legal analysis of it being without basis, and no discussion of sanctions.

The court may realize that such sanctions and commentary are unnecessary since, in the court of public opinion, Pearson has been tried and convicted and there was nothing new to add.

The decision is here, courtesy of How Appealing: Pearson-v-Chung.pdf

The Bubbe Maisse Report (aka "Judicial Hellholes")

2008-12-17T16:34:00.005-05:00

A bubbe maisse is a Yiddish expression for a grandmother's tale. In the electronic era we call them urban legends. And the American Tort "Reform" Association, a business group dedicated to making sure consumers can't seek fair damages for harm that was caused to them, has issued its annual "Judicial Hellholes" report to help create some more such legends.

The report claims to identify the "worst" jurisdictions for lawsuits, which is to say, the worst for them and not for the consumer. In actuality, it is a small catalogue of rants, quotes and stories, many of which they put out each year in order to garner attention for their cause.

But this is the important part: There is nothing in the "report" that approaches empircal evidence. They simply canvass big business for the places they would least likely to get sued, or cherry-pick some decisions that they don't like.

There is some whining about "trial lawyer money" influencing judges, but no indication as to how much money was spent by the Fortune 500.

I briefly noted last year's report, quoting the Center for Justice and Democracy when they called the report "dishonest." Adam Liptak, writing about it last year in the New York Times (The Worst Courts for Businesses? It's a Matter of Opinion), noted that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

So I went breezing past the anecdotes in this year's report to see if they responded to the criticism that it was completely subjective. Try a I might, I could not find any discussion of methodology. I know, you're not surprised.

Also missing from the reports, since they like anecdotes so much, are the stories of tort "reformers" who found found themselves screwed or humiliated by their own prior advocacy, when they were injured.

And so, without further ado, since ATRA loves anecdotes so much, I'll share a few of my own:

Another Tort "Reformer" Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort "reform." Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort "Reform", Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius --

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana -- the same sort of arguments that not underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort "Reform" Gone Bad. And the Personal Injury Round-Up: With this story from a "reformer" and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
...
As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages... The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort "Reformer" Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort "reformer" Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a "book of hate" and said Muslims "need deportation."

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees --

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Aren't anecdotes fun? You can use them to "prove" anything. And with these anecdotes, I "prove" that a tort "reformer" is just an argument by someone who was never injured by the negligence of another.

See also:

Hellholes Update: AAJ Responds (Ambrogi @ Legal Blog Watch)

ATRA's Judicial Hellholes 2008 (Olson @ Overlawyered, with links to others)

Drug Lawsuits Keep Atlantic City A Judicial Hellhole (Silverman @ Pharmalot)

Madoff Fallout--Liablity of Third Party Money Managers

2008-12-17T10:41:00.006-05:00

While investors who lost tons of money by directly investing in the Madoff Ponzi Scandal may be unable to recover any money from his firm, those whose funds were invested indirectly through money managers may be able to proceed under a negligence theory.

While money management isn't the focus of this blog, negligence is. And in today's New York Times there is a story (European Banks Tally Losses Linked to Fraud) of how "a team from Societe Generale's investment bank here was sent to New York to perform some routine due diligence" and easily discovered that the numbers didn't add up. That was in 2003.

And here is the money quote from the article, and the reason other money managers who blindly dumped tons of money on Madoff, may be facing significant lawsuits:

The red flags at Mr. Madoff's firm were so obvious, said one banker with direct knowledge of the case, that Societe Generale" didn't hesitate [to blacklist the firm]. It was very strange."

If they were obvious to this bank, why weren't they obvious to others? This would help to drive a stake through the heart of a defense that Madoff was so crafty that no reasonable investigator would have found the fraud.

A phrase comes to mine: due diligence. Or lack thereof.

See also:

Potential Madoff Litigation Ropes in More Lawyers (AmLawDaily)

Hedge funds failed to spot Madoff risks (Business Week)

Madoff fraud: "Deep pockets, look out" (Olson @ Point of Law)

NY Law School Races to Court, Sues Merkin Over Madoff Investments (Slater @ WSJ Law Blog)

Linkworthy (Disorder in the Court Edition)

2008-12-16T12:04:00.005-05:00

In the news is not just one courthouse brawl, but two.

First, in New York: A defendant goes bonkers, and a New York Times reporter happens to be in the jury pool:

"Obviously, things didn't go as I planned this afternoon," the judge began, with dry understatement.

Next up, from New Orleans, two lawyers go at in the courtroom in a civil case. They are rivals in a class action suit (h/t Ron Miller);

Dennis Quaid settles against Cedars-Sinai Hospital for $750,000 for the Heparin overdose of his twins. (The Quaids had previously sued Baxter for crappy labelling, but not the hospital.) Doesn't that exceed the arbitrary 250K California pain and suffering cap?

TortsProf has the 12/12/08 edition of the Personal Injury Law Round-Up, in case you missed it.

And Eliot Spitzer has his coming out at a party hosted by Slate. Where? At the Happy Ending Lounge, site of a former massage parlor. I kid you not. (ft.com/gapperblog)

Chief Judge Judith Kaye -- For U.S. Senate

2008-12-16T09:42:00.009-05:00

Blaring across the front page of today's New York Times after a couple weeks of speculation is the story of Caroline Kennedy vying for Hillary's Senate seat. One of the most disturbing parts of the article comes from an anonymous source who says that Gov. Paterson likes the idea of a Kennedy-Paterson ticket in 2010 when they both must run. This is the money quote:

"The upside of her candidacy is that the 2010 ballot will read Kennedy --- Paterson," said one of those advisers, who was granted anonymity to speak candidly about the governor’s thinking. "David craves national attention and money. If you connect the dots, it leads to her."

Kennedy's qualifications, apparently, are that she chose her parents well. She has done some fund raising for education, but is not known to have had a full time job in many years (though she does have a law degree).

Sorry, but that's not good enough. In fact, I find it downright offensive. We've seen what happens when the child of a famous politician vaults into public service based on that fame, and not on actual achievements. After eight years of George Bush, I don't care to see anyone, of any party, get an important position based on their name.

So here is a suggestion to consider for the vacant Senate seat: Chief Judge Judith Kaye, who has served as New York's chief judge longer than anyone else, and done so with distinction. (There is a video tribute to Kaye at the New York Law Journal website. h/t Ed.) She is retiring now because she hit the mandatory retirement age of 70 (see: Chief Judge Kaye Says Goodbye).

Now I don't know if Kaye actually wants the job. We've never met and she doesn't know me from a hole in the wall.

But it seems to me that she has served with distinction, is widely trusted and respected, and thus should at least be considered for the position along with other qualified individuals.

Given that Paterson was known to be peeved that a woman was not part of the panel of potential replacements for Kaye for the chief judge slot, and that he would like a woman to replace Hillary, it seems that, as one of the most accomplished women in the state, her name should be in the mix for consideration.

One final item, given the scandal with Gov. Nutjob out in Illinois trying to sell Obama's seat to the highest bidder -- I hear he may consider eBay for this -- it makes it even more important for Paterson to make sure that the person he picks is well-qualified.

Will Dreier Partners Be Liable for Stolen Money?

2008-12-14T20:41:00.007-05:00

Much has been written about Marc Dreier's substantial theft of his firm's assets and the raiding of the attorney escrow fund where client funds were held.; as much as $380 million may have been purloined. Everyone has discussed that he is the sole equity ~~partner~~ holder.

But what of the non-equity partners? As of today their web site lists 49 such individuals. Can they be held responsible for the firm's losses? Given that the firm shockingly has no malpractice insurance (though the insurance carrier may well have tried to disclaim coverage anyway), this surely must be a cause of sleepless nights for the non-equity partners.

The short answer is, yes, they might be liable under New York law. I happened to have litigated the issue back in the 90's on behalf of my father after he separated from Fuchsberg & Fuchsberg, where he was an income partner. Fuchsberg tried to claim that, despite 20 years of representing to the world that my father was a partner, he was in reality a glorified employee. The arbitrator disagreed with Fuchsberg's employee argument, and the final verdict landed on the front page of the New York Law Journal.

So -- aside from the details of a written partnership agreement that I obviously don't have access to -- below are the types of issues that will have to be sorted out to determine whether the Dreier non-equity partners are really partners for the purpose of sharing in the losses. Some of the issues listed below come from D'Esposito v. Gusrae, Kaplan and Bruno

Was the individual listed as such in Martindale-Hubble, on the firm's letterhead, website and/or tax return;
Did the partner receive distributions of net profits from the firm, and if so, was this a fixed amount (indicating more employee-like) or did it fluctuate (more partner-like);
Was the partner responsible for the firm's rent or losses;
Was the partner a signatory of the partnership and/or operating agreement;
Did the partner make any kind of capital investment;
Did the partner exercise any control over partnership affairs.

Bad times are ahead for those that made partner and might now be on the hook for losses that could throw them into bankruptcy, even though they didn't own any of the firm's equity. Rest assured that the partnership agreement is being read today by a gazillion lawyers with a fine-toothed comb.

Addendum: One critical place the lawyers will need to look to sort out the liability issue is the income tax return filed for partners (form K-1). That form lists the percentage of profits that they are entitled to as well as the percent of losses (regardless of whether there were actual losses prior to this). Any non-equity partner that is responsible for losses on that K-1 may be in for particular trouble.

See also:
Dreier Troubles Show Danger of Single Equity Partner Structure (Weiss @ ABA Journal)

The Bill of Rights and John Peter Zenger (Updated)

2008-12-14T12:01:00.005-05:00

With Monday being Bill of Rights Day, it gives me a chance to write about a shopping plaza. Yeah, I know, that isn't really the first thing to jump to your mind when discussing our rights. But as you can see from my photo, this particular shopping strip is called Bill of Rights Plaza, and it's a couple miles from my home.

As it happens, Westchester County, just north of NYC for you out-of-towners, played a pretty big part in the creation of freedom of the press. It started with an election in 1733 on the village green in front of St. Paul's Church in Eastchester. It seems that some folks wanted to vote, and others tried to stop them. Yes, I know that some things haven't changed.

John Peter Zenger wrote about those voting irregularities, and in doing so was critical of the colonial governor. But since criticizing the British crown or its colonial puppets was not something to be tolerated, he was promptly arrested and put on trial for seditious libel. The truth of his writings was irrelevant under the law of seditious libel. To help insure a guilty verdict, the governor picked the judges.

Zenger's defense -- and the reason I write about it 275 years later -- was novel; instead of contesting whether he he was guilty of the crime, he contested the law itself. Since what he wrote was true, he argued, he couldn't be guilty of libel. The jury was asked to disregard the law, a concept we now call jury nullification. And the jury found Zenger not guilty.

From this one trial was born a concept that every member of the press (and every blogger, whether you think you are press or not) cherishes, for it now forms part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Whether our nation's founders thought it would be a good idea to name a shopping plaza after the Bill of Rights is another story. But if it makes a child or two ask their parents about that sign, then it seems to be worth it.

Updated:
Marc Randazza at the Legal Satyricon has put up a sensational Blawg Review #190, dedicated to the Bill of Rights. He's got commentary from around the legal blogosphere on all ten.

See also:

The Right to Defend (Greenfield @ Simple Justice, 4/23/08)

The Rare Ruby-Throated Jury Nullification (Reed @ Deliberations, 2/26/07)

Frustrated Bronx Trial Judge Takes Aim at Appellate Court, Legislature And Attorneys Over No-Fault Law's Serious Injury Standard

2008-12-09T20:51:00.005-05:00

A clearly frustrated Bronx judge vented heavily in an opinion Monday on the vast waste of judicial resources that New York's No-Fault law has wrought. Supreme Court Justice Paul Victor, trial judge in Vidal v. Maldonado, cited to legislative defects, inconsistent decisions from his superiors at the Appellate Division, First Department, and "cookie cutter" motion practice in implicitly urging legislative reform of the confusing law.

New York's No-Fault law had originally been designed "to weed out frivolous claims and limit recovery to significant injuries." In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault. (See New York's No-Fault Law Problem With "Serious Injuries.")

But instead, due to legislative failure to explain the terms it used in defining what constitutes a "serious injury" under the Insurance Law, it has become a morass of motion practice and inconsistent decisions. This results in "a great expenditure of limited judicial time" trying to define "elusive standards" in the law.

One part of the "serious injury" definition, for example, is that the injury results in "significant limitations of a body function or system," while another definition is that the injury was a "consequential limitation of a body organ or member." Justice Victor wrote of the legislature that "The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used," and that with respect to the terms above "there appears to be no practical difference."

Justice Victor has now seen enough, a fact that is evident in the first caption of his opinion: Another Frustrating Assembly Line "Serious Injury" Motion. He goes on to explain how so many of these motions are fought, from both the defendants and plaintiffs perspectives.

The judicial time spent is extraordinary, the judge pointed out. That is because

"a thorough review of the record and current appellate decisions requires a great expenditure of limited judicial time. In any event, the decision rendered is usually challenged and refuted by the losing side; and thus many (too many) of these cases are appealed , and many of those appeals result in non-unanimous (and sometimes acrimonious ) decisions which are often difficult to reconcile with prior precedent."

He then goes on to discuss some of the precedent from the Court of Appeals, as well as the conflicting opinions of the Appellate Division, First Department, which reviews his decisions on appeal. And there seems to be little doubt they will be seeing this one.

One reason the appellate court is likely to see this is that Justice Victor explicitly rejected one of its opinions calling it "questionable and out of step with the more liberal guidelines provided by the Court of Appeals" with respect to how the law is to be applied. He did this while acknowledging that it is "a precedent which ordinarily would be absolutely binding on this Court."

In his view, however, he had no choice in rejecting appellate case law. In a section of the opinion after the details of the case are explored -- a section entitled Competing Statutes and Rules of Construction -- "A Judicial Dilemna" -- he says that due to conflicts, he must choose one or the other of how to approach the "difficult and frustrating" task of a judge weeding out frivolous claims or small cases, based solely on paper submissions.

According to the judge, "This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law."

The decision is a must-read for any New York practitioner that deals with automobile cases and the "serious injury" threshold of our No-Fault insurance law. It is a terrific exposition on the confusing state of the law brought on by the legislature.

Another Way Recession Affects Personal Injury Cases (Courthouse Closes Doors)

2008-12-09T11:39:00.005-05:00

I've previously described how this particular recession may affect personal injury lawsuits, which are generally perceived to be recession proof given since folks get hurt regardless of how the economy is doing.

But problems in a severe one can come up be due to insurance companies going belly-up and forcing delays as the suits get managed by the State Liquidation Bureau. Or there can be problems financing the cases if credit lines dry up.

Now a third reason: Cash-strapped New Hampshire is suspending jury trials and leaving judgeships vacant.

WSJ Law Blog Showing Bias Against Plaintiffs Firms in Dreier Case? (Updated)

2008-12-08T16:23:00.012-05:00

New York litigator Marc Dreier was arrested by Canadian authorities for impersonation in an apparent scam to procure $50M. It also seems that tens of millions may be missing from the firm's escrow account. I didn't know anything about the 250-person Dreier firm, but the WSJ Law Blog referred to it's firm founder and sole equity partner as "a prominent New York plaintiffs' lawyer." [Update: The reference to this being a plaintiff's firm has now been removed from the story.]

Hmmm, a plaintiffs' firm with 250 lawyers that I didn't know anything about? I checked their website and found this, showing it to be one of the BigLaw firms:

Dreier LLP has grown to a firm of more than 250 attorneys, with its principal office at 499 Park Avenue in Manhattan, and additional offices in Los Angeles and Santa Monica, California; Albany, New York; Stamford, Connecticut; and Pittsburgh, Pennsylvania. The firm's principal practice areas are commercial litigation, real estate, bankruptcy and corporate reorganization, employment law, corporate and securities, entertainment, sports law, intellectual property, including patent, trademark and copyright law, matrimonial law and tax.

The firm also has two affiliates within our offices which have specialized practices and are of counsel to the firm. Pitta & Dreier LLP specializes in labor law; and Pitta, Bishop, Del Giorno & Dreier LLP specializes in government relations. The firm is also affiliated with Dreier Stein Kahan Browne Woods George LLP which has its primary offices in Santa Monica, California and specializes in entertainment litigation and corporate transactions, as well as Dreier Sports Opportunities Group LLC, which is a sports marketing and consulting firm.

So why did the WSJ Law Blog decide to call it a "plaintiff's" firm? There are plenty of crooked lawyer stories to go around -- that will happen in a nation of a million lawyers -- and I suspect the number of lawyers gone bad is probably equally weighted on both sides of the litigation aisle.

Was this just a cheap shot at plaintiff's firms in general, which as a general practice are not favored by the business-oriented WSJ? Why magically turn a BigLaw firm into a "plaintiff's" firm? Or is the firm description too vague to be depended upon?

P.S. -- The whole story sound similar to my ear to the case of legendary car maker John DeLorean trafficking in cocaine to prop up his struggling car company. Short story theme: Big shot player gets in deep money trouble and panics to try to rescue the business by doing something monumentally stupid.

See also regarding the scandal:

Founding Partner, Left Higher and Dreier? Blame Canada (Above the Law, 12/4)

Breaking: Dreier Indicted in Federal Court (AmLaw Daily)

Arrest of NYC litigator Marc Dreier (Olson @ Overlawyered)

Dreier: The Cupboard is Bare (Greenfield @ Simple Justice)

DOJ Files Criminal Complaint Against Marc Dreier; Others Sue (WSJ Law Blog)

Dreier Founder Charged in 'Brazen' Alleged $100M Investment Fraud Attempt (Neil @ ABA Journal)

Linkworthy

2008-12-08T10:27:00.004-05:00

Jeffrey Toobin has an article in the New Yorker on retiring Chief Judge Judith "Don't call me Judge Judy" Kaye. Among the nuggets in the article, missing from my own piece on her retirement, was this gem on getting jurors to work together:

The jury room, with its dozing strangers awaiting the call to dispense justice, never fails to stir her soul. (Kaye always says "jury service," not "jury duty.") No detail is too small for her attention ... the in-house magazine for jurors has a crossword puzzle but, per her directive, no answers. "I want the jurors to learn to work together by figuring it out," she said

Coverage Counsel with a link to an up-dated FAQ from the NYS Department of Insurance on all the latest insurance issues;

David Giacalone of f/k/a fame on the History of Snowmen;

David Hyman has been doing a series of posts on medical malpractice caps at the Volokh Conspiracy. This is the first, with links to all others at the bottom of it;

Eric Dinnocenzo takes on a WSJ editorial on medical malpractice damage caps;

The ABA has a holiday card. With Claus Enterprises, Ltd. having a somewhat unique disclaimer;

TortsProf has the Personal Injury Law Round-Up, once again chock full of the latest stories of the week;

Blawg Review #189 is up by Colin Samuels at Infamy and Praise. If you were expecting a populist theme, say of the Alice's Restaurant variety, forget it. Three-time Blawg Review of the Year winner Samuels takes to the high seas with the Rime of the Ancient Mariner.

Top Ten Reasons To Vote For This Blog

2008-12-07T20:54:00.000-05:00

I didn't want to get down in the muck and politic for votes in the ABA Blawg 100 vanity contest, but the China Law Blog has apparently been stuffing the ballot box in the "regional" category that we're both in. And L.A. Legal Pad is right there in the mix.

I know that personal injury law fans won't let this outrage stand, me being in second place and all that, but if you were on the fence as to who to vote for, or how many times to vote, then here are the Top 10 Reasons To Vote For the NY PI Law Blog.

(The South Florida Lawyers Blog and the Texas-based Tex Parte Blog are also nominated in the regional category, but either they haven't figured out how to stuff the ballot box, or inspire their readership, leaving them in the dust.)

10. I'm offering everyone world peace if I win. Plus a toaster. China Law Blog is offering everyone a half-eaten, food-poisoned, jelly donut, sent to you on a slow boat from you-know-where;

9. I heard that L.A. Legal Pad spent $150,000 for its wardrobe. Do you really want to support that kind of spending?

8. That's my dog Tucker. A vote for me is a vote for the puppy. Do you want to say no to that face?

7. Tucker can bark Alice's Restaurant. In four part harmony. With feeling;

6. I'm only 21% evil, far below the U.S. Chamber of Commerce's 65% evil limit for my kind;

5. Jewish lawyers in New York are rare. Please support the species;

4. Rumor has it the China Law Blog is employing child labor to vote, in clear violation of local employment and election laws;

3. New York has better Chinese food;

2. We got the Empire State Building; L.A. has smog. China has worse smog

And the #1 reason to vote for the NY PI Blog:

1. If you can't trust Paris for an unbiased opinion of law blogs, who can you trust?

You can vote at this link.

(Graphic credit: Dan Turkewitz)