New York Personal Injury Law Blog

Did Rep. John Murtha Die From Medical Malpractice?

2010-02-09T09:44:00.008-05:00

Rep. John Murtha (D-PA) died yesterday, a week after routine gall bladder surgery (cholecystectomy). He was a powerful congressman with his finger on the button of Pentagon appropriations.

And with his high-profile death comes an opportunity to explore some medical malpractice issues.

So let's do this in Q & A form:

What is the first reaction as to why this happened?

First up is the most common reason for malpractice litigation with gall bladder surgery: That the common bile duct was mistakenly cut. I don't know what happened here, of course, since I don't have the medical records or the autopsy results, but you can bet that is one of the first places people will look.

As basic background, the liver produces bile that helps us digest. It is transmitted to the intestines via ducts. The gallbladder stores bile. A schematic is seen here at left.

Was this due to infection, instead of a common bile duct injury?
Some are claiming that the death occurred because the intestine was mistakenly cut during surgery, and that this caused an infection. Someone investigating the case would then naturally ask the following questions:

Was the cut intestine noticed during surgery, and if not, why not? Cutting something that you're not supposed to cut is one thing. But failing to notice that it was cut is a whole different thing. This is often the dividing line between when a malpractice case is successful or not. Bad results by themselves don't mean malpractice. Failing to recognize mistakes, however, is a different concept entirely.

If noticed during surgery, what was the response? This surgery was done via a laparoscope, in which the scope is passed through a small incision, with surgery done with a camera-assist. Depending on when and where the bad surgical cut happened, and whether it was noticed at the time, the logical questions are who, if anyone, was called in to assist in the repair and how was it done?

When were the first signs and symptoms of infection noticed and reported and what was done about it? If the cut was noticed during surgery, then in addition to any potential antibiotics that may have been given, would have been very strict discharge instructions to the patient on the signs and symptoms of infection and the critical nature of prompt action.

If this is a known risk of the procedure, why blame the doctor?
This one is a classic, and defendants love it in the courtroom. But it is the wrong question to ask. The issue is not whether something was a known complication or risk, but whether it was avoidable with good care.

Think of it this way: Is a car accident a risk of driving? Does the fact that accidents are a risk of driving mean that the guy who ran the stop sign is not responsible?

Was Murtha just one of up to 98,000 estimated deaths from malpractice in the US each year (Study: To Err is Human)? Time will tell on that one. And we will see to what extent if death has an effect on the health care debate in Congress and the desire by some to grant certain immunities to the medical industry for malpractice.

On a last note, not only was Murtha deeply involved in political-military issues, but the surgery took place at the National Naval Hospital in Bethesda, MD. This adds another potential political element to any investigation or legal action in the event that family moves in that direction.

Caveat Jurista! (Let the Lawyer Beware And Welcome ABA Journal Readers)

2010-02-06T14:51:00.010-05:00

Maybe someone that knows Latin can help me. I'm looking for the proper way to write "Let the Lawyer Beware!" much the way the buyer must beware (caveat emptor). An online dictionary tells me that consultus is the Latin for legal expert, and from which consultant is derived; though jurista seems like a possibility and it also looks and sounds better.

So this post has nothing to do with being afraid of lawyers, but rather, as a warning to those with the juris doctorate.

Frankly, I've always hated the use of Latin phrases in the law, as it always seemed pretentious. My usage is usually de minimis, limited to res ipsa loquitor and a few other well known phrases. But if using Latin helps save someone from outsourcing their marketing (and ethics) to others, it will be a good thing.

Why write on this again? Because I'm featured in the ABA Journal this week, in an edition that deals with online activities, Wired! The article is part of The Business of Law section, entitled Search and Deceive, and dedicated to comment spam and the problems hiring marketers for law firms. (Kevin O'Keefe is featured also, and as you can see from the picture they used, he's clearly more photogenic than yours truly.)

Their piece is inspired by Martindale-Hubbel's use of comment spam that I wrote about late last year (Martindale-Hubbell Apologizes For Blog Spam; Suspends Spammer; Promises to Answer Questions)

The essence of the article is this:

With the proliferation of social media forums and fly-by-night legal directories, lawyers need to be even more cautious when they enlist the services of outside sales and marketing firms to improve website traffic and search engine rankings.

The many problems with FindLaw, of course, equally apply, but the FindLaw postings occurred after the original article was written.

It's good to see these problems now leaking out of the legal blogosphere to mainstream legal publications.

But I still need that Latin phrase. Though I'll accept Middle French, Middle English and any other dead language. Anyone? Bueller? (Yeah, I know, like he'd ever know Latin...)

John Stossel, You Gotta Love Him

2010-02-03T21:10:00.007-05:00

Now I know what you're thinking with this headline: "John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?"

No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluff interview with New York Magazine earlier today where this question and answer appeared:

Who is your mortal enemy?
Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers

Awww, isn't that cute. Johnny-boy wants to kill me and all the other personal injury attorneys in the country. We're his "mortal enemy."

The guy must have been sued big time and got clobbered to have that type of hissy fit. Oh wait. It was the other way around.

That's why Stossel is so much fun to write about. You see, he was the plaintiff in a lawsuit after professional wrestler Dave Schultz slapped him twice. But he didn't just sue the wrestler that smacked him down, but the World Wrestling Federation as well. The case reportedly settled for $400,000. Here is the video of the two slaps (with an out take above):

So what happened to change his mind? Usually, I refer to tort "reformers" as people who have never been seriously injured by the negligence of another. The hypocrites suddenly see the light when they become injured.

So here's my list of theories on why Stossel flipped backward after being compensated for his injury:

1. He wasn't seriously injured, but claimed that he was, and therefore assumes others that make claims are just like him;

2. He hated his own attorney, and therefore assumes others are just like him or her;

3. He realized that beating up on lawyers is super easy to do because when we defend ourselves we sound like, well, lawyers;

4. If you shill for big business, you get lots of speaking fees for conventions.

5. Since the time of that incident, he's been sued or threatened with suit a number of times and isn't too keen on being on the other side. From a profile on Stossel comes these revealing incidents that tend to support the "I hate being on the other side" theory:

Accuracy isn't one of Stossel's strong suits. He's admitted to making a number of serious mistakes in the past, he's been sued in connection with his reporting, and the "research" he's used to prop up his arguments has been routinely debunked by leading academics. In 2000, for example, Stossel declared that organic produce was worse for you than conventional fruits and vegetables; it turned out his report had been based on faulty research and he was forced to issue a public apology. When he argued that global warming was a myth, no less than 104 Nobel Prize winners took him to task. (For his part, Stossel said he was relying on another group of "unnamed" scientists.) More recently, he had to issue a correction and an apology to the evangelical pastor of an African-American church after he distorted his words.

Stossel is -- and this is fun to add -- not just a hypocrite on tort "reform" but on his avowed libertarian philosophy. He has stated that "Free markets, not coercive governments, are the consumer's best friend. The people who are really ripping us off are the lawyers, the politicians, and the regulators." Yet, when it comes to litigation, he wants Big Government to come riding to the rescue to protect him.

From a 2004 Washington Monthly story by Stephanie Mencimer comes this:

In April 2002, Stossel hosted a fundraiser in south Texas for Citizens Against Lawsuit Abuse, a corporate front group that was helping doctors seeking caps on malpractice lawsuit damages.

Ahh yes, Big Government coming in to protect negligent doctors. That is just what anti-government libertarianism is all about. Way to go Johnny-boy.

And now, after digging around a bit, I come to The Admission as to why he actually flipped. From the same Washington Monthly piece comes this whopper:

While he doesn't include it in the book, Stossel did once offer the real explanation. In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, "I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas."

If he ever decides to give up his career as a pseudo-journalist, he would make a perfect spokesman for the US Chamber of Commerce, which has, ahem, started its own frivolous lawsuit.

As a famous reporter has been heard to say, Hey, give me a break.

SuperLawyers Gets Sold, Creates Conflict With FindLaw (And My Days As A SuperLawyer Seem Numbered)

2010-02-02T23:20:00.011-05:00

I was amused some months back when I was named one of New York's personal injury "SuperLawyers." I had some ambivalence about it since it was difficult to know much about the magazine's methodology in making selections.

But no matter now; the company has now been sold to Thomson West and my days on the list, it seems safe to say, are numbered. I'd bet good money I won't be on it next year.

Why? Because Thomson West also happens to own FindLaw, whose dreadful history of selling links, ripping off a certain blog name, exploiting dead victims for its dreck-blogs by a writer who appears to know little about the law, and diminishing the profession of law in general, has been a recent topic here. FindLaw gets paid big buck by some lawyers, and it has lost business as a result of my posts regarding its conduct. And if you charge $10,000 a year to lawyers, it doesn't take more than a few lost ~~pigeons~~ accounts to tick people off.

So you can bet that FindLaw will make sure that SuperLawyers keeps a healthy distance from me next year. But they really have a bigger problem than little old me.

You see, folks, FindLaw will want it's big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word "synergy" into the ears of the powers-that-be.

So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.

Over at Bob Ambrogi's Law Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies. He writes:

[Christopher Kibarian, president of the Business of Law group] said that a key priority for Thomson will be to provide assurances of the independence and integrity of Super Lawyers ratings. Super Lawyers already employs a rigorous selection process, he said, one that has been recognized by bar associations and courts across the country for its credibility and sophistication. It combines peer nominations and evaluations with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

On top of that, Thomson will create an independent advisory board to ensure the integrity and independence of the ratings process.

Will it operate independently? Ask yourself this: Do you trust any company that would exploit a dead child for ad copy on a faux-blog?

FindLaw's credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer's brand, which already suffers from credibility problems. But as long as they keep FindLaw's dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.

If Thomson West has any hope of success here it will have to figure out way to rise to a higher place. As the legal blogosphere confronts ugly lawyer commercials, ghostbloggers (more, more and more) comment spammers, and marketing hustlers of every stripe, the major companies should be trying to reassure its customers that if they are entrusted with the marketing of a lawyer (and therefore with the lawyer's ethics) they won't screw things up. And right now, the opposite is happening.

Court Finds Insurance Covers Fireman in Own Car

2010-02-02T06:40:00.007-05:00

This is the issue in a nutshell: If a volunteer firefighter is in an accident while responding to an emergency, and the insurance policy of the car that clobbered him is already exhausted, can he get the benefits of the fire department's own Supplemental Uninsured/Underinsured Motorist Endorsement (a/k/a the SUM policy)?

In a matter of first impression, the trial court in American Alternative Insurance v. Pelszynski said yes. The matter came before Suffolk County Supreme Court Justice Mark Cohen when the fireman filed for arbitration on the policy and the insurance carrier brought an action in Supreme Court to stay the proceedings, claiming the fireman's car was not part of the coverage.

Justice Cohen shot down that idea, relying on a New York State Insurance Department informal opinion, dated February 8, 2002, which interpreted the SUM policy as similar to one where a person drives his own car for a business. He wrote that:

The opinion found that an employee of the business operating their own vehicle during the course of employment and while acting within the scope of their duty would be covered under the SUM endorsement.

If the coverage was available to someone in their own car using it for a business, then it should likewise be applicable to the fire department.

If it was the fireman's lawyers that found that insurance department opinion for the judge, then that was some good lawyering by his counsel, Kevin Grennan.

h/t NYLJ ($)

Addendum: More from Roy Mura in the comments and at Coverage Counsel

R.I.P. Jane Jarvis, Shea's Queen of Melody (And a Lesson For Lawyers)

2010-02-01T09:22:00.010-05:00

Jane Jarvis, the long-time organist for the New York Mets at Shea Stadium, died last week at age 94. Shea Stadium's Queen of Melody inspired fans over the course of 15 years, and her playing, oddly enough, held lessons for lawyers. Stay with me here. I have a point this time.

Those of my age that grew up spending times watching the Mets at Shea remember her playing for the fans, and the fans responding, and Jarvis tinkling the ivories back at us. It was like an exuberant conversation during her 1964-1979 tenure as she kept us entertained between innings and during other breaks. Anyone who spent time at the now-gone ball yard remembers Jarvis doing Meet the Mets on the Thomas organ.

Ultimately she was replaced by over-amplified canned music (and a thousand other distractions of the modern ball park). But canned music, of course, can't respond to the fans. Her playing was personal. She could see and hear what was going on, and speed up, slow down and modify on the fly. Live music is like that.

So where does the law come in to this? Lawyers often used canned materials too. We borrow briefs and memos from others for use.

But here is the important part: Too many lawyers, it seems, borrow the brief and don't actually read it. They don't make it personal to the actual facts of the case. The writing doesn't crackle with originality and pertinence, because oft times it is neither.

I once read a brief that was filled with "this honorable court" and "respectfully" this and "respectfully" that, and behind all the obsequious writing was garbage. I always figured that if one wanted to be respectful to the court, one would tailor the brief to the actual facts and points that needed to be made. The writer would make it easy on the eyes instead of forcing the judge (or clerk) to go burrowing through the darn thing trying to figure out what the actual point is.

Other briefs I've seen over the years have clearly been filled with cut-and-paste from other briefs, or straight out of WestLaw. It's pure laziness and the message that the judge no doubt receives is, "If the lawyer didn't care, why should I?"

There isn't anything intrinsically wrong with a form book, of course. If you are doing something for the first time it's good to see how someone else did it. The mistakes are in believing that this the only way to do it, or that the form shouldn't be changed at all. The mistake is in ignoring your audience.

Jarvis used sheet music to get her songs down when learning them. But then she adapted each song, just as the lawyer must adapt each and every argument (if, that is, you actually want to communicate a point to the judge)

Jarvis was a virtuoso when it came to the organ and the crowd. And that was because she didn't sit back and rely on the forms she started with.

A 2008 article in the Daily News described Jarvis's experience this way:

When it comes to music and the Mets, Jarvis once wrote the book. "I made all the decisions," she says. She had a song for when the Mets trotted to their positions, and a song for when they smacked a homer, and then there was the Mexican Hat Dance to get things going when the home team really needed it during the seventh-inning stretch. An entire generation of Met fans came to identify the team's championship run in 1969 with her lilting keyboard work.

Rest in peace.

(P.S. Pitchers and catchers report in 17 days. I think Jarvis would want me to mention that)

Updated:

New York Times obituary
Recalling a Meeting With the Pied Piper of Shea (NYT)

FindLaw's Continuing Problems with its "Blogs"

2010-01-29T12:09:00.014-05:00

FindLaw continues to have problems with its so-called law blogs. Today's problem: Their writer doesn't appear to know a damn thing about law.

Why does FindLaw continue this charade of having blogs by producing crap content?

From its Philadelphia Personal Injury Law Blog (coded "NoFollow" so it doesn't get Google juice) comes this mega-screw-up of a headline:

Doctor Found Innocent Of Malpractice

Oy. That's what happens when non-lawyers try to write law blogs. Legal terms get thrown around willy-nilly without the writer knowing what they are doing.

It's always been one of my pet peeves in newspapers when I see a headline declaring that someone was found "innocent" of a crime. Criminal juries, of course, don't determine innocence. (Nor do civil trials.) Criminal trials just determine whether the prosecution sustained its burden of proof beyond a reasonable doubt. But at least when I see newspapers do it they aren't conflating the criminal with the civil.

Memo to writer Emily Grube who continues to churn out this awful dreck at the behest of her employer: This was a civil trial and you used the language of the criminal world by waltzing into the guilt-innocence issue. That's a whopper of a mistake, as we say in legalese.

But it's clear this wasn't an inadvertent mistake, because it continues in the content with this gibberish:

It took the jury less than an hour to find that Dr. Robert Stratton was not guilty of providing poor emergency room care to Dennis J. Kowalick.

Civil juries don't determine "guilt." That is a criminal law term. The civil jury in a malpractice case will determine negligence. And I can't believe anyone would hire a writer for a law blog when that writer didn't understand such fundamentals.

FindLaw obviously continues this crap because it thinks it will get SEO juice. These "blogs" are merely ads designed to dump as many SEO friendly terms onto the web, quality be damned. And if FindLaw need to use a dead child for its self-promotion, well so what, because the ends of self-promotion and making money are more important than anything else, right?

I assume that no one at FindLaw cares, since they've permitted this stuff to go on for months now. I would have thought that its professor-contributors from Writ: Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few, would have raised a ruckus since they are now associated with these shitblogs. Perhaps they don't care either.

If FindLaw can find professors to write Writ, you would think they could find a lawyer or two to write blogs. But then, FindLaw would have to actually give a damn. Marketing appears to trump all else and remains the holy grail; produce quantity and not quality.

As Scott Greenfield discusses, anyone can have a blog, but not everyone should.

The wonder of it all is that there are lawyers that actually outsource their marketing to FindLaw. I assume that they remain utterly clueless as to what this company does in their names, though if they find out they could save a bundle (and their reputations) by taking their business elsewhere.

And a final obligatory note: You don't have to be a lawyer to write a law blog, as Walter Olson shows at Overlawyered and Point of Law.

More:
Are FindLaw's "Blogs" Tainting Its Clients, Commentators and the Profession of Law? (1/4/10)

Detroit Lawyer Fined For Chasing Buffalo Air Crash Victims

2010-01-25T22:48:00.006-05:00

Detroit attorney Carl Collins III has paid a $5,000 fine for chasing victims in the wake of the February 2009 crash of Continental/Colgan Flight 3407 near Buffalo, according to The Detroit News. According to the US Attorney's Office he sent letters out to victims' families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters.

Both of these actions came from federal authorities. New York has its own 30-day anti-solicitation rule (for all mass disasters), which applies to out-of-state attorneys as well. New York has thus far been silent on the issue of whether anyone has been pursued for violations.

The chasing was a big topic for me early in the year, as I tracked a string of law firms that started to electronically chase clients by running Google Adwords, before pulling the ads after they were exposed. You can read those posts at this tag: Buffalo Air Crash. This air crash was the first true test of New York's 30-day rule that went into effect in February 2007. The 30-day rule was not effected when other parts of the new rules were tossed out by a federal judge in July 2007.

Some of those ads had been run through various marketers, with the effect that lawyers had outsourced their ethics along with their marketing. I had discussed the concept of such ethics laundering to beat New York's 30-day anti-solicitation rule a year ago.

As of today, I am not aware of any attorney having yet been sanctioned for such e-chasing (which I covered two years ago in Attorney Solicitation 2.0 - Is It Ethical?) but that day is surely coming.

My thanks to Buffalo attorney Roy Mura, of Coverage Counsel fame, for passing on the Detroit News story.

Trial Lawyer Lobbying On Health Care Bill

2010-01-25T10:36:00.007-05:00

Over at Point of Law, Carter Wood points out that the American Association of Justice spent 1.33M in the 3rd quarter for congressional lobbying, ~~much~~ some of it on the health care bill. In his commentary, Wood says:

The filing provides more evidence that the trial lawyers helped craft language establishing state demonstration projects, preventing serious reform.

Now this is what the health care insurance industry spent: $38 million in 2009. (via WSJ Health Blog). [Update: This is limited to the health insurers, and does not, for instance, include drug makers. Also, note that the lobbying by the attorneys' group includes a wide array of consumer issues.]

One of the constants of the tort "reform" lobby is pointing out what consumer groups spend to preserve rights, and ignoring the vast sums that come out of the Fortune 500 to lobby for various corporate immunities.

Should Obama Sit Jury Duty?

2010-01-25T09:49:00.006-05:00

So news comes out that President Obama has skipped jury duty in Chicago. Is that a good thing?

Here in New York, it used to be that there were exemptions from jury duty for lawyers, doctors, and a panoply of others. Everyone and their brother seemed to have a legit excuse. The legislature killed that off, and now all the exemptions are gone. Rudy Guiliani famously sat jury duty while mayor, as did Mayor Michael Bloomberg and former Chief Judge Judith Kaye.

But how about the President?

On the plus side of having him sit, it promotes jury duty and the concept that power is dispersed among the people. The distribution of power among the citizens and away from the Crown was the very essence of the Revolution. The Declaration of Independence, once you get past its magnificent opening, leads into its bill of particulars regarding the usurpations of power by King George with this:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States

And among that list of usurpations is this:

For depriving us in many cases, of the benefit of Trial by Jury

And this is not just enshrined in the Declaration, but the Bill of Rights. The Sixth Amendment protects those charged with crimes and the Seventh Amendment guarantees juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

There is little disagreement among the people of the need for the dispersion of power -- though oddly there are conservatives that wish to consolidate power among the few and call this "reform." This concept of greater government power has thus far been widely rejected. (I never really understood how conservatives that preach limited government wish to endow it with more in this circumstance, but that is an issue for another day.)

Notwithstanding the noble goal of jury duty, any lawyer that has spend 12 seconds in the jury selection process knows that many people want to talk their way out of it, even personal injury lawyers. But I have sat, as has my wife and my brother.

On the flip side of having Obama serve jury duty is the security problem, not just for the courthouse but for the nation as a whole as it requires the man with the button to be in one place for an extended period. Leaving aside the issue of distraction for the other jurors, the forcible placement of the President in one place could turn into a life and death problem for all of us.

So, while I am a huge fan of the jury system, when it comes to the top honcho, I believe that deferment until he leaves office is appropriate.

FindLaw Uses Dead Child To Advertise Attorney Services

2010-01-22T13:35:00.013-05:00

Demonstrating that, perhaps, there is no sewer deep enough for it to descend into, FindLaw has used the death of a child to promote the services of the lawyers that pay them fees.

On its Philadelphia Personal Injury Law Blog (coded as "nofollow" so that site doesn't get Google juice) FindLaw's writer, Emily Grube, re-hashes the tragic accident of a nine-year old that was hit by a car while playing with its scooter. After the re-hash comes this deep-thinking analysis:

There are many difficult questions about this case: Was the driver aware that she hit White? Was she aware that he was under the car? Did she continue to drive in an attempt to flee the scene?

Truly profound. I know I feel more educated having read it. At the end of it comes the call-to-action: "If you have been involved in a similar situation such as a hit and run, or a pedestrian injury, you could discuss your possible personal injury case with..." blah, blah blah

The "blog" is one of the dreck-blogs that I wrote about previously (Are FindLaw's "Blogs" Tainting Its Clients, Commentators and the Profession of Law?), that offer little content beyond repeating a local story, making damn sure the name of the victim is repeated in the event the victims (or their survivors) Google the event, and ends with a call-to-action. There is, of course, no comment area since discussion isn't the point of the ad.

(If the name of the writer sound familiar, Ms. Grube also writes dreck-blogs for other FindLaw sites, having apparently left what little dignity she may have been born with in the dust.)

In my prior posting, FindLaw was using dead adults in its pseudo-blogs, which appear as little more than ads designed to chase clients. The extent to which such ad-blogs violate local ethics laws has yet to be explored by any ethics committee that I know of, though surely that day is coming soon.

So who sponsors this kind of crap? When you click their link, these are the firms I found at the top of the link, that would benefit from FindLaw's use of dead children in its ads:

The Law Offices of Eric Strand
West Chester, PA

Law Offices of Basil D. Beck, III
Norristown, PA

Law Offices of V. Erik Petersen
Harleysville, PA

Hark and Hark
Philadelphia, PA

Law Office of Henry S. Hilles, III
Norristown, PA

So long as lawyers continue to pay money to FindLaw for its services, this will no doubt continue. (See, FindLaw, How To Leave and Save Your Reputation.)

And the continued existence of such crap will continue to hurt the legal community and our clients, and make it even more difficult to find objective jurors.

Lastly, it's worth noting that Mark Bennett had previously published a partial list of New York attorneys that were supporting this kind of conduct (Call This Notice). Yet FindLaw continues, and subjects more of their clients to being associated with its ugliness. So it appears that FindLaw doesn't really care about the reputations of the very people that hire them. Considering that FindLaw is the agent of these firms, that's important.

The only way for FindLaw's clients to preserve their reputations appears to be to ship out, because it doesn't appear that FindLaw will shape up.

NY Court Clerks Get New Rules On Rejecting Papers

2010-01-22T06:25:00.002-05:00

When you are up against a deadline, the prospect of a court clerk rejecting papers can not just be problematic, but fatal. And because of prior instances where some clerks have rejected papers based on their understanding (or misunderstanding) of rules, the Office of Court Administration has issued changes.

There are now just four reasons for a clerk to reject papers:

1) papers that do not have an index number,
(2) documents commencing or concluding a lawsuit that do not list the names of all parties,
(3) filings offered in the wrong county, or
(4) documents not signed as required by court rules authorizing sanctions for frivolous contentions.

The rules come because the White Plains general practice firm of Tilem & Campbell brought a lawsuit to challenge what they saw as inappropriate rejections of papers by clerks.

From today's New York Law Journal (reg. req.)

FindLaw in Class Action?

2010-01-16T16:40:00.006-05:00

A comment came in yesterday about a possible class action suit against FindLaw. I didn't publish it because it was a blatant advertisement for a couple of firms who bizarrely thought I created this blog so that they could freely advertise. Go figure.

But the ad itself is worth discussing so it now follows with the names of the law firms redacted.

The potential class deals with FindLaw promising attorneys that it will put them on the first page of Google, which, of course, is impossible to do for all of your clients if you have more than a few clients and you use normal keywords. Lawyer search service hustlers are pretty much everywhere these days, and slime predominates from WhoCanISue and SueEasy to FindLaw, to MalpracticeLawOffice and AnAttorneyForYou amongst the gazillion companies sleazing their way across the web.

The redacted version of the ad, originally submitted on the post on how to save thousands of dollars a year by dumping FindLaw, looks like this:

We understand that many attorneys are dissatisfied with services and products provided by FindLaw. Many laws firms have told us that their business dealings with FindLaw did not come close to meeting their expectations. For example, we have been informed that FindLaw made promises about placement on the "first page" of search engines that were not delivered?

Attorney [redacted] and [redacted] have joined forces to investigate any potential causes of action that may flow from FindLaw's business dealings with lawyers across the United States. A number of attorneys have contacted us and have asked to retain our services, therefore we are in the process of gathering more information and documentation to assist us in our investigation. Any feedback, documentation and suggestions that you would like to share with us would be greatly appreciated. We are also looking for experts in the areas of legal marketing and the Internet.

If you would like to learn more about this matter or offer your assistance, please click on the link below in order to connect with our law firms. You can expect to receive a prompt and confidential response. [redacted]

While I certainly see the anger in those that wasted big bucks with FindLaw, such a suit on these terms seems to be a no-win situation since the actual contract that the lawyers signed with FindLaw would govern, there are unlikely to be any such written "first page" assurances, and the verbal assurances (even if admissible given the existence of a written contract) would likely differ from case to case. That would tend to be problematic given the need for common questions of fact for the victims in a class action.

It would also be problematic given the sophisticated nature of the potential plaintiffs and the fact that only a moron would believe every customer could be on the first page.

To the lawyers that tried to use my blog to chase clients: If you want to chase, do it on your own dime.

While the above class action seems to be a likely loser, there may be another avenue to explore. If lawyers want to claim that FindLaw's dreck-blogs tarnishes their reputations (as well as the reputations of every other attorney in the country) and constitutes a breach of contract, then more power to you. Perhaps a suit lies in such a claim and I wish you well in nailing them to the wall for their scuzzy conduct. Here is a copy of the FindLaw Master Agreement.pdf for you to go looking for additional ammunition.

I'm just trying to help. If anyone goes that route, give FindLaw my best regards. If you succeed based on my tip, please remind them where it came from.

Linkworthy

2010-01-15T11:00:00.002-05:00

A dramatic slip and fall caught on video. Too bad he was trying to throw a chair through a Burger King door at the time. Will he be dumb enough to sue?

Point of Law has AAJ's agenda for protecting consumer rights. They don't like the list. I do.

The Second Circuit Court of Appeals opines on champerty and maintenance in New York. You don't know what that means? If you practice personal injury law, you better damn well find out at Blawgletter.

Is that really a stodgy, New York, government bureaucracy on Twitter?

How many auto accidents take place each year because of drivers distracted by cell phone use and texting? The answer is here;

OK, CareerBuilder has placed an ad on the web that I don't think you will ever see on television. My wife is still laughing...

In honor of the 20th Anniversary of The Simpsons, that law-talking guy...

Scott Greenfield has an example of a good lawyer ad from one of the bastion of fine personal injury firms in New York, Trolman Glaser and Lichtman -- even Walter Olson seems to like it! Too bad the firm also is part of the wretched FindLaw system of using dreck-blogs for advertisements. Hey TGL, if you're reading this, isn't it time to get on the phone with your FindLaw rep and tell them to stop creating stuff that hurts our clients and our reputations? It's already hard enough to find impartial jurors for personal injury cases, we don't need them making things worse;

Finally, Blawg Review #246 at The Client Revolution, looking into the crystal ball at the future of law.

Donations for Haitian Relief

2010-01-13T16:49:00.000-05:00

For those looking to make a donation for Haitian earthquake relief, Consumer Reports has a round-up of reputable charities.

These are before and after pictures of the presidential palace:

FindLaw - How To Leave and Save Your Reputation (and Money)

2010-01-13T06:20:00.004-05:00

Today I have a guest blogger that shows you how to save thousands of dollars a year. Those savings take place if you made the mistake of hiring FindLaw as your law firm's marketing company (or are contemplating doing so).

The company hit my radar big time, of course, when FindLaw decided it would be fun to rip-off my blog name. A deeper look discussed how FindLaw's "Blogs" were tainting not only its clients, but its professor-commentators and the profession of law as a whole.

Today's guest is a former sales rep that left on less than amicable terms because he couldn't make an absurd sales quota selling a product that was so heavily over-priced. Today he has his own company. The financial analysis of FindLaw's offerings now follows:
-------------------------------------------------------
By James Eichehberger
(co-owner of Swell Sites, a small, Minnesota web design company)

There's been a lot of chatter, mostly disgust, around the ethics and quality of FindLaw's blogs as well as what I'll considerately call a lack of creativity in naming them. I'm sure that this, like the linking scandal of 2008*, will evoke a variety of reactions from people involved in the legal marketing community. The great majority of lawyers will read these posts and feel self-assured in the fact that they don't do business with FindLaw.

However, I'm afraid that current FindLaw customers will have one of two reactions. Some will look at it as an issue that is isolated to the blogosphere, and therefore doesn't effect them and their products with FindLaw. The second group will realize that, whether or not they have their names posted on these blogs, this is yet another incarnation of FindLaw's questionable ethics, and it's time to move.

So the question for current FindLaw customers (the group that is willing to acknowledge that their reputations are at stake) becomes how do you transition out of your current site and retain some of what you've already paid for? To that end, I've put together a group of questions that can jump-start the idea that you can indeed rescue your website from being held hostage and save thousands of dollars a year.

1. What am I really getting from the FindLaw Directory?

In reviewing traffic reports with your sales rep or account manager, it's common to see the traffic delivered by FindLaw rolled into one big number. To be clear, there are two distinct elements that bring traffic to your website from FindLaw. First, your FindLaw profile, (which will typically include "pview" in the URL on your traffic report) and then any directory placements, which can run from $30 to upwards of $1,000 per month. [Ed. note, FindLaw links coded as "nofollow" to avoid giving link juice.]

It's important to understand the average price per click that you are paying for traffic from FindLaw's top listings. In many cases, those coveted clicks from FindLaw cost well beyond $100 each. Tracking how many of these clicks actually convert to contacts by following the pages they access on your site is a very easy task with many common (and free) traffic programs. It's troubling that FindLaw's traffic reporting is unable to follow these users and show conversion for this extremely expensive traffic.

2. Why am I paying monthly for my website?

There are really two answers to this question, depending on where you are in the life of your website with FindLaw. FindLaw websites are billed monthly, so the idea is that they take the cost of a website and prorate it over 12 monthly payments. So if you are in the first 12 months of your contract, it can be argued that you are still paying for the creation of your website.

Outside of those 12 months is where the math gets blurry. The monthly rates don't change (significantly, anyway) based on the length of the contract, and what you get in terms of content or SEO doesn't really either. Unless you are engaged with your website to the point of calling to ask what you are eligible for on a quarterly basis, your website just gets more and more expensive the longer you keep it with FindLaw. A former FindLaw General Manager said on his way out (before having moved back over to West) that the best way to get real value from a FindLaw website is to buy one and then cancel it as soon as possible.

3. What do you get beyond the initial development of your site?

That's a question that FindLaw was trying to answer the entire 5 years that I worked there, and to my knowledge, they still haven't figured it out. If anyone reading this can tell me of an experience where they received real value outside of the initial development of a new project I'd be interested in hearing about it. My guess is that most FindLaw customers will struggle to recall ever being proactively helped with their sites. They will tell you about "refreshes" which are additional content opportunities, but they are not easy to set up or completely clear on who is eligible.

The service is supposed to include additional search engine optimization (SEO) work, but at the time I left, they could also just have someone from the SEO team "audit" the site, and then determine whether or not they wanted to work on it. Same thing with content; unless you ask about the schedule, and then give specific direction on what content you'd like written, you likely will not get any. I'd liken the whole situation to trying to write step by step instructions on how to tie a shoe. Tying a shoe is easy, but when you try to tell someone else how to do it, it becomes infinitely more difficult than if you had done it yourself.

4. What elements of my FindLaw website do I actually own?

Here's where there is actually some good news for FindLaw clients. There are three basic elements to your site:

Domain Name
This is the the name that brings up your site. Regardless of whether you owned that domain name before you purchased your site, it IS yours. At any time, for any reason, you can request that the ownership of your domain name be transferred to an account under your name. That gives you the ability to keep a site up and running should you decide to move away from FindLaw in the future. It also protects you from them holding on to it should you get into any type of a dispute over your contract term, cancellation date or total amount owed to the company. Your domain name is the online version of the front door to your law firm...your law firm should be the sole owner and controller of that domain name.

Content
The content on your site that was "custom written" is yours to keep. Because you directed the writing of this content, and it was written about your firm, it is yours. The content includes the meta data which is a large part of their search engine placement strategy. Transferring your content, as well as the 3 or 4 lines of coding aimed at search engine placement, onto a new server space will typically yield the same, if not better, results on Google.

Not ALL of the content belongs to you. If you have any FAQs, eNewsletters, Practice pages or practice centers, those are actually leased from FindLaw. Re-publishing that content on to a new hosting space is a violation of the contract and licensing of the content.

Design
The design is owned by FindLaw, but can be purchased for a fee defined as 4% of the annual value of the website. So if you were paying $12,000 a year for your site, buying the design and all images used would typically cost about $500. For that cost, you get a disc or a link to download all of the HTML files and graphics that made up your site. What you get isn't going to be easily rebuilt by a novice, but someone with a general knowledge of websites could reconstruct it in 2 to 6 hours, depending on the complexity of the design and number of pages.

5. How much should I expect to pay for a website from FindLaw?

There are hundreds of variations, but a template, 8 page site tends to run about $500 a month on a 12 month contract. So at a minimum, the site is about $6,000.* The second year monthly fees typically drop to about $350, so a 24 month stint with FindLaw with an 8 page website will cost right around $10,000.

This price increasing over time with the relatively low service level in the second year and beyond, is really where the opportunity to save some real money comes in to play. If you already have a FindLaw website, there are several ways to get it set up on your own hosting space. Attorneys who are very web savvy may be able to handle the migration themselves. If you are not very comfortable with web development it may be far more efficient to hire someone to do it for you.

6. How much does it cost to get my FindLaw site rebuilt on another platform?

There is no perfect answer for this, but you should expect to pay somewhere in the range between $1,000 and $4,000 depending on the size and complexity of your website. Whether you are setting up a new website or working to get your FindLaw site migrated, here are a few things you're going to want to make sure have been taken care of (in no particular order):

a. XML Sitemap Submission
b. Traffic Reporting that shows where people are coming from (a counter is not enough)
c. Domain validation through Google (available in their Webmaster Tools)
d. Meta Data on each page of your site that you would like included on Google
e. Keyword rich content that reflects the approach and feel, not just the practice area, of your law firm.

I hope this information is helpful to people who are looking to gain a better understanding of exactly what they purchased from FindLaw, or looking to start up or advance their web marketing. I hope none of this came across as "axe-grinding" but at the same time, the reason that FindLaw can continue to get away with these other questionable projects is because there are thousands of lawyers who are paying thousands of dollars for what's basically a trumped up web hosting plan.
-------------------------------------------------------

*Ed. notes:

1. For more info on the prior scandal with FindLaw selling links, see FindLaw gaming Google, and possibly scamming lawyer customers? Also see: Is the FindLaw Story Getting Distorted? where former FindLaw reps out the company's disreputable policies in the comments.

2. This blog and my firm's website were built by a small provider for a fraction of the cost of FindLaw's services. The idea that lawyers would pay such ridiculously high rates to build a website, and then pay hundreds of dollars more per month to host it, is bizarre.

All the content on my two sites (for better or worse) comes off my keyboard.

Why Use Orthogonal?

2010-01-12T07:22:00.011-05:00

A confluence of two events:

Last week, wordsmith extraordinaire Bryan Garner twitted this little gem of a quote:

"Some of the worst things ever written have been due to an avoidance of the ordinary word." -- Henry Bett

Fast forward to yesterday, and in the US Supreme Court, University of Michigan law professor Richard Friedman was arguing the Constitution's Confontation Clause and used "orthogonal" to signify propositions that are extraneous or irrelevant to each other.

Don't feel bad if you don't know what the word means. Neither did justices Roberts or Scalia, and probably several others. Prof. Friedman was forced to explain, and thereby detracted from his argument. He sheepishly confessed, "That is a bit of professorship creeping in, I suppose."

And that's called being two smart by half, where there is such a desire to prove you're smart that you lose your audience. And that's just dumb.

A well-made argument, like a well-written brief, shouldn't make make people work to figure it out. It should come easily and naturally, and lend itself to being received while having the feet up on the coffee table with a drink at hand.

More at Volokh from Orin Kerr, who has a transcript of the exchange, and who notes that the Supreme Court has never used the word "orthogonal" in a written opinion. Nor is it likely to, I might add, in my lifetime.

Update: Scott Greenfield also wrote about orthogonal this morning, with a contrary view:

Did it distract from his point? Sure, though the point that the argument he was challenging was tangential was hardly difficult to follow. Did it eat up time? Obviously, though not much. Did it break the tension, allow Friedman to relax as he moved forward and create an endearing moment that will enhance Friedman's likability and hence credibility to all wings of the court. You bet.

Eugene Volokh seems to agree that use of orthogonal was a distraction.
---------------------------
Update - 1/25/10 - And the verdict is in: Orthogonal does not appear in the decision.

NYC Transit Authority Gets Bench Slapped By Brooklyn Judge

2010-01-11T12:52:00.007-05:00

Justice Robert Miller is not happy with the New York City Transit Authority. And when Justice Miller, one of the trial judges of Brooklyn's Supreme Court, is not happy, that means a good bench-slapping.

As exquisitely detailed in this January 5 decision in Williams v. New York Transit Authority, the TA failed repeatedly over the course of three years to provide discovery from an Event Recorder Box (the train's "black box"). The result is $15, 450 in costs and sanctions.

The suit concerns a 2005 accident when subway passenger Ronald Williams fell asleep on a train that subsequently entered a subway yard after the last public stop. He thereafter fell from a subway car and was struck and killed by a train.

Plaintiff's counsel was asking, not unreasonably, for the accident reports and Event Recorder Box to get more details on what happened and why. After three years of trying to get that information, including a prior sanction against the Transit Authority for failing to properly respond ($250 that went unpaid), the court had had enough.

The decision catalogs conduct that appeared to supersede mere ineptitude on the part of the Transit Authority, which tried to assert that its conduct was not "wilful or malicious" nor that they have engaged in "a pattern of dilatory and obstructive conduct." The court found, based on the overwhelming evidence, that the arguments weren't made in good faith, writing that "If the actions were not wilful, they were inept and evinced a total disregard for the NYCTA's discovery obligations..."

For those that like to see why our litigation system takes as long as it does, or is as expensive as it is, here is one more quote from the decision to add to the mix:

A review of the testimony establishes that if the NYCTA had exercised due diligence or any diligence, this entire discovery dispute could have been avoided and the vast expedition of time by the parties and the Court would have been saved.

Our municipal corporations have often been given more leeway by the courts than private litigators, as a panel of judges recently wrote in excoriating the City's Corporation Counsel. ("[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.")

Perhaps, after so many years of problems, the courts are finally prepared to hold municipal parties to the same standards as the private parties.

And in case you were wondering what the court believes is a fair hourly fee for those of us that work on contingency and don't generally track our hours, Justice Miller finds $350/hour for a partner and $250/hour for an associate.

Blawg Review of the Year Nominations

2010-01-11T07:30:00.006-05:00

I hate doing this. But the anonymous Editor of Blawg Review, pictured at right, is asking those of us that have done reviews in the past to nominate the top reviews of the past year. I've now done three of them -- based on the NYC Marathon (2007), Thanksgiving with Arlo Guthrie (2008), and The Bogeyman at Halloween (this year) -- but asking someone to pick favorites from the past year is like asking you to pick 5 people to come to a party when you have 25 on your list. Yuck.

Anyway, this is what I think makes for a good review, and the way I make my selections:

1. Does the BR make me want to click on a link? If there is a long description of the linked post I don't have to click. But a tease makes me want to click, along the lines of Above the Law's Non-Sequiturs and Overlawyered's roundups.

The more times a BR sends me away to another blog, the higher marks it gets. Sending you away from its website is what made Google famous.

2. Does the review have a story? Stories make for fun and easy reading. I make opening statements that way as it helps the jury to keep pace with what is going on, and that is also why I like seeing reviews around a story.

3. Does the post have a long intro? I hate intros. Like jurors at a trial's opening, I will never be more attentive than when the first words spill forth. Don't lose me at hello.

4. Does the post have a legal theme? If it does, it gets generally negative marks from me, because it forces the writer to jam otherwise interesting posts into artificial categories. The themes I used were all non-legal; they were social gatherings where the conversation flows this way and that and can therefore accommodate any topic without odd segues and contortions.

Without further ado, the best of the year from my wholly subjective viewpoint:

Blawg Review #198 at the East Central Illinois Criminal Law and DUI Weblog, based on the seven deadly sins. The writing made me want to click on link after link;

Blawg Review #220 at Overlawyered. Did I say I liked stories? Stupid rule. No splashy theme, and little distraction. Walter Olson and Ted Frank (who subsequently became my lawyer) just wrote in a style that made you want to click on links;

Blawg Review #223, where Scott Greenfield's sphincter was firmly in control. Since he hates doing these reviews, and was pinched to do it on a day's notice, it came out as a delightfully curmudgeonly rant. It's tough to beat a well-written rant;

Blawg Review #233 at Popehat revolving around Joshua Norton I, Emperor of the United States of America and Protector of Mexico. Did I say I hate long intros? Stupid rule. They had me at Welcome. Great story and I found myself not only clicking links, but wasting time on Wikipedia afterwards;

Honorable mentions to:

Blawg Review #203, with drunken debauchery by Geeklawyer. If they were giving out prizes for style he would win it hands down;

Blawg Review #204, with Elie Mystel slaughtering sacred cows at Above the Law would have made the cut. But they just won one of those ABA Blawg 100 popularity contests, and one win is enough;

Blawg Review #205A, George Wallace's April Fool's Day appendix at A Fool in the Forest, because you know, I have a thing for April Fool's Day;

Blawg Review #209 by John Hochfelder at his New York Injury Cases Blog. If there was a law blogger Rookie of the Year award, it would go here. Wait, I'm a law blogger and I can make up an award just like anyone else. Here John, it's yours. (Sorry, no badge.) His review was dedicated to his father, a marine, and the posts followed his life.

Blawg Review #238 by Joel "A Jew With A Gun" Rosenberg at WindyPundit. He celebrated International Tolerance Day. And any review that opens with Tom Lehrer's National Brotherhood Week is bound to be a winner. Or at least get honorable mention.

Blawg Review #241 was hosted by Colin Samuels on Pearl Harbor Day at Infamy and Praise. Saumels wins this award every damn year, so there is no way I'm going to vote for him. You just gotta spread the wealth around a bit.

OK, there you have it. I posted my utterly and completely subjective favorites based on rules I made up and then ignored, and now everyone that wasn't mentioned hates me. Thanks, Ed.

Linkworthy

2010-01-08T11:00:00.002-05:00

Medical researchers go hunting for a link between disease and lawyers, and Max Kennerly takes the "research" and rips it limb from limb;

The PopTort has become, over the last several months, a truly outstanding blog. They wrote recently how Katrina hospital victims were, literally, dead in the water, and how tort "reform" in Texas failed to bring docs back to rural areas;

Kevin, M.D. has a round-up of his most popular posts from 2009, many of which have a legal angle to them;

Avvo makes 8 predictions for the legal field for 2010;

The NY Court of Appeals hears oral argument on the issue of "sole proximate cause" of the worker as a defense to strict liability under our Labor Law;

Since when did cyber-stalking become a gender issue? Eugene Volokh starts the conversation and Scott Greenfield (who is being stalked along with other guys, I might add) says to hell with that. (Previously here, Twitter Followers and Stalkers -- Can You Tell the Difference?);

Am I my blogger's keeper? Carolyn Elefant and Brian Tannebaum on ethical issues and lawyers' professional obligations regarding marketing;

And Blawg Review #245 comes at us from Charon QC with this exquisite theme:

I have no theme -- other than to look at as many good blog posts and bloggers as I can under various quasi-random headings.

NY Judge Bans Social Security Numbers In Subpoenas

2010-01-08T10:00:00.001-05:00

Last year I warned about the danger of lawyers allowing social security numbers to be filed in the courthouse (Client Privacy and the Courthouse File)...

One day the scandal will happen, and I want to make sure my clients don't get caught up in it. The problem is simple: Our court files are open to the public and all manner of private information gets place into those files...

And yesterday, in the New York Law Journal, (no link) comes the story of Supreme Court Justice F. Dana Winslow of Nassau County refusing to sign subpoenas in a medical malpractice case because the social security numbers were on it.

In an interview with the NYLJ, the judge said that he gets papers with Social Security numbers on a weekly basis but this was "the first time I had a chance to do anything about it" because ordering the subpoena would have placed it in the public record.

The filing of Social Security numbers in federal court was banned locally many years ago and its been years since I changed this once-routine item in my own office. I've even made a habit of asking defense counsel, before the deposition starts, not to ask for the number on the record since the transcripts often get filed as part of motions. Most comply. Those that don't are met with an objection, but they never fight it. Everyone understands that this works both ways. Defense counsel doesn't want their own clients private information in the courthouse file either, and much can come out in deposition.

The state system, it appears, is finally getting around to dealing with the issue. The Office of Court Administration said they were "examining" the issue of social security numbers. How many years it will take to examine this oh-so-complex issue remains to be seen.

Can A Cartoon Law Exam Help You in the Practice of Law?

2010-01-06T22:04:00.007-05:00

We start with a law professor that wants to make an exam "fun" by having students relate a cartoon to course materials. Then we move to a practicing lawyer that rips that idea to shreds and beyond. But, believe it or not, I think the concept can lead to better lawyering.

This little idea emanated from Howard Wasserman at TortsPrawf, who wrote:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Scott Greenfield, who often writes of how out of touch law professors are with the actual practice of law, was not amused by this "fun." He wrote:

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.

But the idea clicked in my head, though not for the reason Wasserman stated. Many practicing lawyers, the folks in the trenches, can't write because they can't sharply identify the issue and present it up front. One-frame cartoonists, however, know all about succinctly nailing the issue.

That succinctness is something I first practiced when working for my dad after law school, because one of his office rules was that every case had to be reduced to a "one-liner." Thus, a complicated medical malpractice case, that might have many different issues, would be reduced to:

1 year delay in diagnosing breast cancer in 52 year old woman, married, three kids

And that one-liner came in handy not just for office management, but when you approached the bench at a conference and the judge asked what the case was about. Five seconds later the judge knew what is going on and could delve into those parts of the nitty-gritty that might be needed for the conference. That one-liner also served as the opening of every brief.

Law school exams teach you to write, and write and write. Then write some more. And that may be wrong. Perhaps they would better serve aspiring lawyers if they taught them to more sharply focus the issues and write less.

How sharply? Give each student a maximum of 75 words to define each issue. That is a skill they can use in the practice of law. With just 75 words, its tough to bluff.

That 75 word limit comes, by the way, from writing guru Bryan Garner. If you can't define the issue in 75 words, he teaches, you probably don't know what it is. Everyone that attends Garner's CLE class walks out amazed after watching numerous videos of appellate judges discussing how poorly the issues are framed by the lawyers, and even how difficult it might be to find them in voluminous papers.

So that cartoon idea does have some merit to it, though not for the "fun"reason. Teach the students to write less, not more.

And as to the length of this post, if I had more time I'd have written less.
---------------------
Addendum: Scott Greenfield wrote last year about how Twitter cruelly forces that type of brevity.

Are FindLaw's "Blogs" Tainting Its Clients, Commentators and the Profession of Law?

2010-01-04T06:45:00.008-05:00

J'accuse.

In looking at FindLaw's new gaggle of so-called "blogs" that are little more than crappy search engine fodder and client solicitations, I struggled to find the right word to describe them. The ramifications of these crap-blogs are important, because FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole. And because this is likely to be a source of discussion going forward, it also means these so-called "blogs" need an appropriate name.

Just as the two-week holiday started, I noted that FindLaw ripped-off the name of my blog, recently creating their own New York Personal Injury Law Blog. (Link coded as "nofollow" to avoid giving Google juice). But the problem, as noted by others, isn't just that they ripped off my name, but that they did so with unadulterated dreck. That was one of many new, similar sites that they created.

To be clear, dreck-bloggers aren't interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation 2.0, a subject I dealt with two years ago. Put bluntly, many of these dung-blogs are electronically soliciting clients. E-chasing, for lack of a better word.

In this posting, for example, FindLaw re-writes the story of a local accident that killed four and injured two, and in just the third sentence its author spits out:

If speed was the factor that caused this collision, then the families of the victims (and the surviving victims themselves) could hire a New York injury attorney to sue the person responsible.

The author made sure to name each of the deceased, provided two separate links back to the list of lawyers that pay FindLaw, and included a call-to-action. (If you have suffered a personal injury...blah, blah, blah.) There is, of course, no natural audience for such a "blog." The postings do not allow for comments, nor is there any attempt at creativity or analysis.

An example of how FindLaw prostitutes itself to the alter of Google -- FindLaw's prior reputation and quality writing in its Writ commentary be damned -- is in the "about" section. They place 97 words in two sentences of which a remarkable 37 are keywords, to come up with this contorted piece of SEO "writing":

The New York Personal Injury Law Blog covers news and developments in the area of personal injury and tort law in New York state, and New York City specifically, and helps to connect people with New York injury lawyers. The New York Personal Injury Law Blog is intended to serve as a resource for people working through a personal injury issue in New York, or those who are interested in New York personal injury and tort law generally, including New York personal injury attorneys who wish to keep up with the latest news developments.

[Note: I wrote about the problem of keyword clutter previously in I Hate My Website.]

As Scott Greenfield puts it at FindLaw Plays Dirty (where he warns others of FindLaw stealing their well-known blog names):

These aren't blogs, of course, in the sense that we understand them. There are mere names designed to trade in on search engine keywords, and capitalize on Findlaw's SEO ability to get their scam blogs higher than yours on the search engine's first page.

And as Sheryl Sisk puts it in Findlaw vs. NY Personal Injury Law Blog: The Opening Salvo:

Let's be clear. This isn't a case of innocently or mistakenly adopting a geocentric keyword-rich blog name. Findlaw's not staffed by idiots. They knew what they were doing.

What are the consequences of FindLaw's folly in creating such sites? 1) it demeans the lawyers that paid them for listings, who are now associated with the scat-blog; 2) it diminishes the work of the professor-commentators at Writ that they currently use; and 3) it brings down the legal profession as a whole by legitimizing such conduct. Let's take these one at a time:

First, it demeans the people that hired this once-prominent company to market for them. Marc Randazza, on seeing Findlaw's mierda-blogs, wrote in Findlaw, are you really that douchetastic?:

They hired a milquetoast writer to author a milquetoast blawg for the sole purpose of selling ad space to sh*tty lawyers who can't develop a reputation on their own.

Ouch. Now I happen to personally know some of those lawyers on the FindLaw list, and know that they are fine lawyers. I'm sure they had no idea that FindLaw would associate garbage with their names when they hired the company as their agents.

But you know what? Others don't know that. And by creating a turd-blog and associating it with those lawyers, potential clients will come to the exact same conclusion as Randazza. And they will believe that those otherwise reputable lawyers agreed to be part of this ugliness.

And Randazza has more (he always does):

Here's a rule of thumb... if a blog post ends with "for more information, contact the lawyers at Douchestein and Dickwadbaum," then it is an advertisement, but, it isn't advertising the lawyer's services. It is advertising that lawyer's stupidity, desperateness, and cluelessness. I would advise any potential client who sees a "blog" that ends its posts that way to turn around, run away, fast as you can, and do not look over your shoulder.

To the lawyers that paid money to FindLaw: You've just been sucker-punched. You outsourced your marketing to FindLaw and this is what they created for people to find you. Worse still, some of FindLaw's posts may qualify as electronic ambulance chasing. We're talking serious ethical issues here with e-chasing, and I wonder who the lucky lawyer will be that becomes the test case. When you outsource your marketing you outsource your ethics.

Second in line to get clobbered are the professor-commentators on its roster, such as Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few.

All of their work on FindLaw's Writ has now been instantly devalued and diminished by being associated with the BS-blogs that FindLaw created. Once upon a time it was a feather in the cap to be published by West's FindLaw. Not any more. Do they care?

The professor-commentators now stand side-by-side with Emily Grube -- the author who appears at several of the sites despite the fact they vary both by practice area and jurisdiction-- whose bio says she is a "writing specialist" with "experience correcting papers created by freshmen to graduate students."

Perhaps it's understandable that FindLaw couldn't hire more lawyers to write about the law, given this tight job market with firms now at capacity, actively recruiting and unemployed attorneys so difficult to find. It's not required that a law blogger be a lawyer of course, as Walter Olson of Overlawyered and Point of Law demonstrates, but it just makes it a lot easier to recognize and discuss relevant legal issues.

It's worth noting that many others stood up and took notice of FindLaw's ugly conduct -- during a holiday week, no less -- including: FloridaLegal, Molly McDonough (ABAJournal), BlawgWhisperer (ABAJournal), Ron Coleman, Kevin O'Keefe, Nicole Black, Don Cruse; Lawrence Koplow; Tim Hughes; Copeland Casati; Ryan Daniels; Lydia Bednerik; Kevin Underhill; Gerry Oginiski; A Reasonable Suspicion; and Roy Mura. Some of those folks, also happen to have prominent blogs that FindLaw might rip-off next.

Lastly, and perhaps most importantly for the legal profession as a whole, FindLaw may have taken a smallish problem with a haphazard smattering of phony "blogs" that have popped up over the years, and given them (and newcomers) cover to act in the same unprofessional manner. Instead of raising the bar of discourse for lawyers they have lowered it. For if one of the pre-eminent names in the legal field thinks it's OK to create a farkakte-blog (and you may have to hit that link unless you know a smattering of Yiddish), what message does that send to other lawyers? To the public? Is FindLaw now so desperate for business, so fearful of Martindale-Hubbell, Avvo and Google Scholar, that they are willing to race down to the muck and tarnish us all?

Greenfield wrote that:

For those of you who have placed their reputation in Findlaw's hands, be prepared to be tainted by the company you keep.

But I think it is actually worse than that. While such dirt-blogs were previously confined to desperate lawyers here and there, FindLaw now opens the ~~floodgates~~ sewergates for lawyers to create slime for the web, for if it's good enough for the once-vaunted Thomson West, it's good enough for them.

Now if I could only find a good word to describe FindLaw's number-two-blogs and their ilk. I know there's a good one out there someplace. When others find that word, I'm sure it will hit the fan.

Lead Paint and Constructive Notice to Landlords

2010-01-03T16:23:00.003-05:00

An interesting decision came out of the Appellate Division, Third Department on December 31st with respect to lead paint cases, that sharply clarifies some of the issues needed to bring such a case.

Before getting to the case, a little background: Lead paint cases are, generally speaking, brought by the parents of infants that have ingested cracked and peeling lead paint, and seek to hold the landlords responsible for the injuries (which are often neurologic in nature, including learning disabilities). The paint is a relic from pre-1978 days (when it was banned in residences due to its poisonous nature) and, in addition to being eaten by small kids, can also fill the air with lead dust during renovation. Lead in toys from China has been a hot bead of problems over the last year, for just this reason.

In Charette v Santspree, the appellate court dealt with the level of notice that a landlord had to have to be held accountable for the poisoning. But in this case, despite the lack of any complaints, the court held that the landlord had constructive notice of the condition. That is, they should have known about the cracked and peeling paint.

In proving constructive notice, the plaintiff needs to show five things: That the landlord
(1) retained a right of entry to the premises and assumed a duty to make repairs;
(2) knew that the apartment was constructed at a time before lead-based interior paint was banned;
(3) was aware that paint was peeling on the premises;
(4) knew of the hazards of lead-based paint to young children; and
(5) knew that a young child lived in the apartment.

Since there was evidence of all five elements here, the court refused the defendants' request to toss the case out on summary judgment.

But in an interesting turn, the court acknowldged that the defendants had the winning argument regarding lack of knowledge for the private areas of the apartment building (which had six tenants). But the defendants lost because there was substantial evidence of the paint peeling in the common areas. And defendants would have seen those common areas when coming on a monthly basis to collect the rent. That would have given the landlords either actual, or constructive, notice of the evident peeling paint in those areas.

Given that the plaintiff "observed paint chipping and peeling from the walls in the common areas of the building not long after she took possession of the second floor apartment and that these conditions continued to exist throughout her tenancy," both the recent and past owners of the building had summary judgment denied.

All in all, the case represents a nice review of the issues of notice regarding lead paint cases, and a bit of a road map on how to proceed and the available theories that exist.

Twitter Followers and Stalkers -- Can You Tell the Difference?

2010-01-03T08:40:00.003-05:00

In 1993 The New Yorker published this now-classic cartoon with the caption, "On the Internet, nobody knows you're a dog." Initially created for a little chuckle, it's turned into a prophetic warning. Anyone could be lurking on the other side of that keyboard.

One example is now playing out at the websites of Scott Greenfield and Mark Bennett, who are being cyber-stalked, as you can read at the two links at the bottom. The stalker happens to be a convicted rapist, and Twitter is his tool.

And this is worth writing about as a lesson to newcomers to the blogosphere and those who think acquiring a jillion Twitter followers, or a bazillion Facebook friends, will magically lead your nascent law firm down the Yellow Brick Road to Oz. It doesn't work that way. And it could even be dangerous.

You would be foolish not heed the cautions of Greenfield and Bennett. Don't be so quick to add Twitter and Facebook buddies under the pretension that these networks give you a level of familiarity with others if that familiarity doesn't actually exist. If you don't know how to say no then you aren't an adult.

Just as social networks are used by the innocent, so too are they used by trolls, malcontents and criminals. You don't want to learn the hard way about the difference between a follower and a stalker. This is particularly true since, as Kevin O'Keefe points out, there is software that will help buy Twitter followers. He issues his own mea cupla on once touting the benefits of large numbers of followers.

I've never been a fan of Twitter and the blizzard of garbage it sends over the transom at the user. If you use the service (or any other) quality must take precedence over quantity.

As Sergeant Phil Esterhaus used to say on Hill Street Blues, "Hey, let's be careful out there."

The Lessons of One Psycho on Twitter (Greenfield)

The Worst Lawyer in Houston (Bennett)