New York Personal Injury Law Blog

July 2nd: A Day to Declare Independence (And Celebrate Juries)

2009-07-02T21:29:00.003-04:00

On July 2nd, 1776, the Continental Congress voted for Independence. We celebrate, however, on the 4th when the Declaration was signed. I discussed this last year in: United States of America Declares Its Independence (Jury Trials Are One Reason)

But it's worth repeating this year on the heels this week of the WSJ op-ed by high profile law professor Richard A. Epstein, who proclaimed that the right to a jury trial was a mere "procedural feature," among other ludicrous claims.

And so it's worth repeating that not only is the mere "procedural feature" enshrined in the Bill of Rights, but it's also in the Declaration of Independence.

In the long bill of particulars of reasons we took up arms against the crown is this:

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

Have a good read:

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. -- Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. 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. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

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

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. -- And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Congratulations to Overlawyered

2009-07-01T09:50:00.003-04:00

Overlawyered today celebrates its 10 year anniversary, making it the longest legally-themed blog around. It has also provided me with one of the biggest surprises that I've experienced, and invaluable lessons about how to blog.

Its proprietor, Walter Olson, uses the site to document the high cost of litigation. He has his conservative political views, which are often diametrically opposed to mine. In fact, if the proposals of the Manhattan Institute (where he is a fellow) were followed, the rights of many (if not all) of my clients would likely be eviscerated. That means we knock heads every so often, as I do with his co-blogger Ted Frank.

And despite this, while still in my rookie year blogging, he added me to the blog roll of his site. I wrote at that time, back in August 2007:

When pigs fly, I hear you say.

Would the oldest legal blog in America -- dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits -- actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort "reformers" to task every so often? One who is a guest contributor at Overlawyered's arch nemesis, TortDeform? Well, yes. They would.

And he didn't just add me to his blog roll, but he links to me with some frequency sending me a steady source of readers. And those links don't just come in where I agree with him about a suit that was stupidly brought -- and in a nation of 300 million that will happen with some frequency -- but more often when I disagree with him on an issue. He is telling his own readers: And for the opposing view, see this post from a PI guy.

Lesson learned. Don't ignore opposing views. Read them, consider them, and respond to them if you wish. It is the ideas that matter. Same as in the courtroom.

Another lesson is that he has never once made a personal attack, despite all my criticisms. Which is also something that every legal battle should embrace. Respond to the message, not the messenger. Judges hate personal attacks.

And another lesson: Admit mistakes when they happen. You can't be constantly writing in the blogosphere, often quickly and with little editing, and not make mistakes. At his sister site, Point of Law, he showed the way mistakes are rectified.

And so, a tip of the hat today to Walter Olson. Not just for figuring out this blogging thing faster than any one else, but for doing it with class and style.

The False Premises of Medical Malpractice "Reform" (Response to Richard Epstein in WSJ)

2009-06-30T13:59:00.018-04:00

There's an old saying, "garbage in, garbage out." If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the "reform" of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don't hold water.

Whopper #1, Epstein writes:

"American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury."

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show -- at least in NY, where I practice, and where Epstein is now a visiting professor at NYU -- specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he's tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four "procedural features that drive up malpractice costs." They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This "procedural feature" is called a constitutional right. The Seventh Amendment's right to jury trials in civil actions is what Epstein is actually complaining about. I reprint it here so that he doesn't have to look far for it:

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 re-examined in any Court of the United States, than according to the rules of the common law.

Epstein's real problem isn't with some procedural feature, it's with the Bill of Rights and our nation's founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second "procedural feature" is the:

"contingency-fee system, which allows well-heeled lawyers to self-finance litigation."

Of course, if the lawyers didn't fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting -- and risking their own money for -- is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That's a great way to give immunity to those that were negligent.

The third "procedural feature:"

"...is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner."

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won't be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of "loser-pays." But that just means that victims can't afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

"...extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere."

I've never heard of discovery that didn't have judicial oversight in the event of abuses. Epstein doesn't provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for "reform" that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort "reformer" actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?")
----------------------
More from John Stossel at ABC, who supports "reform," even though he had no hesitancy himself in suing another for injuring him. Some "reformers" are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with "tort reform for thee, but not for me."

Metro Train Accident and Client Solicitation

2009-06-30T06:34:00.004-04:00

In the wake of Continental Flight 3407 crashing near Buffalo, I tracked how a number of firms from around the nation using Google ads to hustle clients (see here, here, here, and here). The point was to discuss New York's attorney anti-solicitation rules, and see if they were effective by comparing the local attorney advertising response to two other disasters. The other disasters were the Staten Island Ferry crash in 2003 and the Metrolink train crash in Southern California in 2008.

So now we can add another disaster to the mix: The Washington City Paper reports that:
Lawyers Use Web Site, Google Ads to Find Metro Crash Victims (via Overlawyered). An individual named Jared Reagan started a website (metrotrainaccident.com) and then started hustling lawyers to advertise on it. There is no indication that Reagan is even an attorney.

So what does this mean? For those lawyers that retain Reagan to act as their agent to solicit via web sites, it means that those lawyers have outsourced their ethics to him. Let's be clear about this equation:

outsourcing marketing = outsourcing ethics

Notably, the site itself does not list any New York lawyers, either because he hasn't reached us with his own solicitations for his site yet, or because New York attorneys, under stricter ethics rules than those in other states, have learned to become wary of outsourcing their marketing such people. See: New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

On a final note, New York's ethics rules are currently being challenged in court. Oral argument was heard before the Second Circuit in January. Judge Sonia Sotomayor was on the panel. A decision is pending.

Michael Jackson: The Mother of All Malpractice Suits?

2009-06-26T11:43:00.010-04:00

With Michael Jackson's sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor's orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate's executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You'd like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child's view of the world.

Best guess from my perch in the cheap seats:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

Update:

Did Demerol Cause Michael Jackson's cardiac arrest and death? (Kevin, M.D.)

LAPD 'searching for Michael Jackson doctor' (TimesOnline)

(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Why is LegalX.net Spamming Me? (Ethical Issues with Attorney Search Sites)

2009-06-24T23:43:00.002-04:00

LegalX.net is one of the gazillion attorney search sites that seem to float about the web. You pay them a fee, and they add you to their directory while they try to hustle clients. Many of them seem to me to have questionable ethics. But this one, LegalX, has been trying to spam the comments of my blog like crazy over the last couple weeks. And it appears they are doing it to others.

Now I'm used to getting comment spam from various companies hustling gold, drugs and knickknacks of all sorts. And even on occasion from lawyers. But I've never been hit with this kind of persistence from a law firm or lawyer search company.

This is interesting on two different levels. First, attorneys that pay these marketers have entered into, what appears to me, an agency relationship. And their agents are sending out spam. But the attorneys are likely responsible for the acts of their agents. So the hundreds of law firms that LegalX appears to have taken money from are now associated with one of the most insidious practices of the web. Due to ethics rules that exist in some places for attorney marketing, ethics and lawyering go hand-in-hand. So when a firm outsources its marketing, it also outsources its ethics.

Second, I think that there is very little that is actually gained by the spam. There is no link juice, since comments on blogs are routinely set as "do not follow" so that Google doesn't give them any link love. Their pagerank doesn't benefit from the practice.

And some of the posts are one to two years old. This same drivel below, for example, was presented for comment in one of the Dr. Flea posts as well as one on the Million Dollar Advocates Forum:

It is essentially important for human beings to follow laws and orders without which a man can be brutal enough harm others. It can be easily mentioned that law plays a vital role in arranging the mob in a systematic manner. So, one should never fail to follow laws of any kind, concerning anything.

It also appears to have been spammed hundreds of times on other attorney blogs, which you can discover if you Google the first part.

Awhile back, I switched over from having open comments to moderated comments that need to be approved. I didn't want to do that, but it was the only way to keep the spam out.

In sum, LegalX appears to be engaging in a widespread spam campaign. When it comes to blogs, it's hard to think of more reprehensible conduct from a company.

Who is LegalX that has persuaded so many law firms to turn over their cold hard cash to them? Great question. Glad you asked. And I wish I had a good answer. Its website gives a Canadian address, 7018 14th Avenue, Burnaby, British Columbia, but no names. Some further searching finds that it was for sale in October 200 8 by an anonymous individual located in Los Angeles under the pseudonym "fargreater." Fargreater says that:

all seo optimization done by widecircles.com the advanced optimizers

Whether the site was sold to someone else that is doing the spamming, or it remains in this person's hands, I don't know. But it was also for sale (either still or again) just a month ago by someone named "Johnfa."

I also checked out the "blog" that is on the site. I put that in quotes because the one post I read, entitled "Medical Malpractice Happens," was in large part an unattributed rip-off (/MedMalHappens-LegalX.pdf) of this post by Patrick Malone at The Huffington Post.

Now cutting to the chase, who would want to hire a lawyer that has a mysterious company spamming for them? And yet, hundreds of law firms appear to be listed at their site. Most are likely to be unwitting dupes, though some may simply be turning a blind eye to the conduct. Either way, is that the type of lawyer someone would want? (Assuming that these lawyers have, in fact, paid to be listed on this site. Their advertising page says it is $349-489/year for a listing.)

If I were a stockbroker, I would not only mark this stock "avoid," but also the lawyers that paid them any money.

[Note: LegalX.net is the spamming lawyer site. But there is also a LegalX.com, which is a litigation outsource support firm with a Los Angeles phone number. While both seem to have an L.A. contact, I do not presume they are related.]

Welcome Washington Time Readers (And Sonia Sotomayor Fans)

2009-06-23T22:14:00.006-04:00

I am quoted in an editorial of The Washington Times for Wednesday, June 24 (Sotomayor's Ethical Oversight). The editorial deals with Sotomayor's former firm Sotomayor & Associates, when there don't appear to have been any associates. My original post can be referenced here: Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

The first half of the editorial comes pretty much straight from my posting. From there the Times goes off on a tangent trying to find greater significance.

I will leave it to others to comment on whether the Washington Times took a long stretch in the significance of the violation. (For the last two weeks I've been too busy with work to put together much new content on this blog.)

In the meantime, if you are a new reader, here is a "greatest hits" for this blog, so that you can consider subscribing or adding this site to your RSS feed. But remember, do it today because the price will double next week.

Linkworthy (Round-Up of Round-Ups)

2009-06-19T11:36:00.001-04:00

I've been way too busy to post much of anything this week, but these round-ups have a ton of great stories:

Ron Miller has personal injury related links;

TortsProf with the weekly personal injury law round-up;

Nikki Black rounds up New York's legal news;

Blawg Review #216 is up at Family Lore. I've been called a lot of things in my life, but this is the first time I've been called a Lord.

The Deadlocked NY State Senate and The Big Cookie Solution

2009-06-16T21:11:00.006-04:00

The New York State Senate is now deadlocked at 31-31, and the lawsuit to impose a judicial solution on a legislative problem was tossed out today. What to do with this mess? The solution is actually quite easy.

First, the idea of one party or the other being in charge because one particular vote was legitimately taken or not is a waste of time. For elevating form over substance is useless when both parties have the power to deadlock Albany. To get anything done, an agreement is necessary.

The solution for the Senate is the same one my father used for dividing The Big Cookie between two sons. One kid cuts it in half and the other kid gets to pick which one he wants. That way the cutter has to be fair. The game of "you cut, I pick" is diabolically simple.

The Senate should do the same. One party divides all the power positions into two separate groups and the other side gets to pick the one they want. Who cuts and who picks? A simple coin toss. There. Was that so hard?

Tomorrow I will attempt to cure the common cold.

Shortening the RSS Feed - Some Blog Changes

2009-06-12T13:45:00.003-04:00

Over the last couple of months I've had a couple folks scrape all the content from my RSS feed and use it on their own "blogs." I use quotes because they looked like they had no other purpose than taking the content produced by others and surrounding it by ads for their own commercial benefit.

I made clear to them that simply because content is syndicated in an RSS feed doesn't give them the right to scrape it for their own.

Nevertheless, to prevent this in the future, I'm going to experiment with truncating the RSS feed. If folks find the lede interesting, they can then come to the site and read the rest. It isn't really the way I want to blog -- reading this stuff should be easy -- but I also don't like having stuff stolen.

While I'm at it I may also tinker with those little social networking buttons that I see elsewhere. Where will it lead? Beats me. But over the last year this little corner of cyberspace and turned up not only in national press, but also international (India and Great Britain).

And I'm open to suggestions and feedback from others as to whether or not the changes work well.

Linkworthy

2009-06-12T10:24:00.001-04:00

The Citizen Media Law Project does a step-by-step analysis of how Tony La Russa's lawsuit against Twitter went viral;

Did a local news reporter cross the line of propriety here in a Sexaholics Anonymous report?

In an breathless "expose" ... an obviously inexperienced "investigative" reporter for a local cable news organization climaxed her over-the-top report by melodramatically bursting into a closed meeting of Sexaholics Anonymous "demanding answers" to her "disturbing questions" and expressing "frustration" that the startled sex addicts would not interrupt their meeting to sit down with her for impromptu on-camera interviews.

White Coat Notes continues his series of what it's like to be a medical malpractice defendant. In part 4, he talks about deposition prep and in part 5, the deposition itself.

Ron Miller has big concerns over Obama caving to medical lobby by enacting a "reform" in order to pass health insurance legislation.

The New York Times has an article today about A.I.G. balking at paying claims regarding the US Airways flight 1459 that ditched in the Hudson in January. In addition to lost property, some folks are now suffering from post-traumatic stress disorder. No surprise here, as I indicated on the day of the crash that was likely to happen.

And Blawg Review #215 sets sail at Carolyn Elefant's My Shingle, with a distinctly nautical theme.

NY Ct. of Appeals: Attorney Newsletter Not an Advertisement (And What of Blogs?)

2009-06-11T13:59:00.009-04:00

Two New York blogging attorneys found themselves in a decision today out of our highest court, in Stern v. Bluestone. Andrew Bluestone writes the New York Attorney Malpractice Blog, and was sued when he sent his newsletter via fax to local attorneys. He was defended by Scott Greenfield, of Simple Justice fame, who argued the matter in the Court of Appeals.

And since SCOTUS nominee Sonia Sotomayor may play a roll in the First Amendment issues I'm about to discuss, this could be particularly interesting.

Bluestone was sued by Peter Stern, another local practitioner, for violating a federal law (the Telephone Consumer Protection Act) that prohibits using a fax for unsolicited advertisements. But was his newsletter regarding attorney malpractice an advertisement for his services? Both the Supreme Court (our trial level court) and the Appellate Division, First Department (intermediate appellate court) said it was advertising. You can read some of that prior blogospheric commentary here:

Judge Rules Attorney's Faxes Are Prohibited Advertising (NY Law Journal, 9/6/06)
Bloggers Head to NY High Court As Both Defendant and Counsel in First Amendment Lawyer Advertising Battle (2/1/08 on this blog)
$21,000 Award Upheld Against Attorney Who Faxed Unsolicited Ads (NYLJ, 2/4/08)
What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers (Carolyn Elefant @ Legal Blog Watch, 2/4/08)
Is the How Appealing Blog "Commercial Speech" and Thus Less Constitutionally Protected? How About This Blog? (Eugene Volokh @ Volokh, 2/6/08)

Most troubling about the First Department decision was this:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. . . .

Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.

Why is that troubling? Because blogs may also come under regulation from New York's advertising and anti-solicitation rules, albeit it in a different context. As Greenfield noted back on his own blog in February 2008:

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers. It was held to be advertising, for only commercial solicitations fall within the TCPA. With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Every blog that has a name on it, in other words, could be deemed advertising. There are a bazillion shades of gray between an article that appears in a legal journal and what you read here. How, exactly, does a court make that determination of what the primary purpose of the publication is?

But today the Court of Appeals reversed, holding that the newsletter is not an advertisement. The Court noted that the FCC had this opinion on the subject of what is, or is not, an advertisement:

so long as the newsletter's primary purpose is informational, rather than to promote commercial products"

The Court then went on to decide that:

In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement" of his services, which "does not convert the entire communication into an advertisement"

But this leaves an issue hanging: Who decides what the "primary purpose" of a blog or newsletter is?

It's worth noting that that exact phrase is part of New York's anti-solicitation rules. I started writing about it in February 2007 when the new rules went into effect (See:Who, Exactly, Must Comply With New York's Attorney Advertising Rules? and more on the subject as a whole here: New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.)

With so many potential shades of gray, it seems that if and when the issue is ultimately litigated, we will be faced with Justice Potter Stewart's famous words regarding the definition of pornography, for it seems equally applicable in the context of deciding what is attorney advertising and what is not when it comes to blogs:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So when will it be ultimately litigated? Hold on to your hats....the issue of New York's new anti-solicitation rules is now before the Second Circuit. And Justice Sonia Sotomayor was on the panel that heard the case.

Elsewhere on today's ruling:

Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise (Eugene Volokh)
N.Y. High Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications Act (NYLJ via Law.com, 6/12/09)
Attorney Newsletters and Liability for Unwanted Faxes (Full Court Pass)
We're Not Just Self Promoters (Greenfield @ Simple Justice, 6/13/09)

---------------------------------
Full disclosure: I know both Bluestone and Greenfield, and both have appeared in my blogroll for the last couple of years.

Ken Feinberg: The New Human Punching Bag

2009-06-11T06:00:00.001-04:00

You have to admire the mettle of the man. Kenneth Feinberg is stepping into a new role that comes with this one thankless guarantee: No matter what he does people will hate him.

The President called and he answered the call. But the role that he fills is one of overseeing executive compensation for companies that had been bailed out by the government, to see that taxpayer money isn't wasted on overpaying executives.

Is that easy? Of course not. Many revile the policy and the whole concept of such stringent government oversight. And that means, as the government's delegated front man on the issue, that he will suffer the slings and arrows of angry people. People will yell that he allowed too much compensation for greedy execs while others will scream that it was not enough to woo talented people. He's gonna get it coming and going.

His job will be utterly thankless.

When he stepped into his role as Special Master of the September 11 Victim Compensation Fund he also had problems. Some thought it unfair that the families of high income executives received vastly more than those from more humble positions. And others said the families of the high earners didn't get their due because their earnings were so high. As I said previously, I thought he was an extraodianry public servant.

This time, though, he won't have the back-drop of a nation under attack. He has a recession. I expect he will hear much more in the way of hardball assaults since the raw emotion and immediacy of September 11th won't be with us. He's certainly got guts to stick his body into the path of the flailing assaults he will no doubt see.

But in the deep background there is this to consider: Feinberg was picked both by the very conservative team of John Ashcroft and George Bush as well as the present administration. So there are people out there, on both sides of the aisle, who see Feinberg as a fair man that will do his best with integrity. And that ain't bad.

Elsewhere: D.C. Lawyer Kenneth Feinberg to Serve as Pay Czar (Elefant @ Law.com Legal Blog Watch)

New York's Extraordinary Government

2009-06-10T23:56:00.007-04:00

Let me briefly summarize the state of New York's government.

As I write, the Senate is in disarray due to a coup. The Republicans were ousted in the last election after holding that chamber for 40 years. Eight months later two Democrats allegedly switch sides and dump their party in the name of "reform" but no one can decide if the vote was legal. And they are actually fighting over who has the keys to the Senate chamber.

Our governor was ousted in a prostitution scandal. Our new governor has approval ratings so low you need a shovel to find them, largely due to his fiasco in trying to replace Senator Clinton.

Our judiciary has sued the governor and the legislature because they haven't had pay raises since the days of the flood.

So the only thing left to do is make fun of New Jersey.

Welcome New Readers (USA Today, Fox Business News -- Ken Feinberg Story)

2009-06-10T23:02:00.007-04:00

After my interview with the Financial Times the other day regarding Ken Feinberg -- Special Master of the September 11 Victim Compensation Fund and now the Obama administration's delegated compensation czar for bailed out companies -- I was called by USA Today and Fox Business News.

I did the Fox segment yesterday live on Neil Cavuto's show at 6 PM. The role of talking head on a live cable news show was something new for me. While I'd been interviewed many times before for news shows (where I sometimes hit the cutting room floor), I'd never done the live thing. The subject was my experience with Feinberg in conjunction with the Victim Compensation Fund, in an attempt to glean some tidbits as to how he might work in his new role. Unfortunately, they didn't put the video up on the web. Here is Cavuto's lede as he spoke to his business viewers in The Pay Czar Knows No Limits:

Kenneth R. Feinberg.

Don't know the name?

Don't worry.

Pretty soon, he'll know yours.

Here's the deal.

And tomorrow morning USA Today has this piece where I am also quoted:New executive compensation chief has fortitude for job:

If Feinberg's new duty comes with a measure of stress, no one may have a better disposition to handle it, says Eric Turkewitz, a lawyer who represented two 9/11 plaintiffs. He says he found it remarkable that Feinberg never delegated. Working pro bono for 33 months, Feinberg listened, by himself, to 1,000 cases, "hour after hour, day after day, month after month," with a box of tissue by his side and boxes of replacement tissue in the closet, Turkewitz says.

I can't say the reporter nailed it exactly, though, as that would do a disservice to his hard-working staff. While he made all the decisions, and he was the man sitting solo in the room with the families and the tissues, there was a large staff that he delegated an exhaustive amount of legal and administrative stuff to.

Brooklyn Man Sues Match.com for Humiliation and Disappointment

2009-06-10T12:44:00.007-04:00

A Brooklyn man filed suit yesterday against Match.com for humiliation and disappointment. That humiliation, of course, will be nothing compared to being known as the guy that sued Match.com for humiliation and disappointment. His name is Sean McGinn.

It seems that the women McGinn was sending missives to were no longer on Match.com, but the service kept their names and profiles up anyway. Having sent hundreds of letters, this tended to waste a lot of time. He was steamed. He started a class action based on deceptive practices.

But it seems to me that if he has a legitimate beef about his time being wasted, then that is what he should have sued for. Overreaching into the realm of a personal, psychological injury is just the kind of thing that will get you skewered up, down and sideways. It's a distraction from the real issue, and not a healthy distraction.

It's not unusual to overreach, of course. Judge Robert Bork famously did that when his lawyer sued -- when he slipped ascending the dais at the Yale Club for a speech and hurt himself -- for "in excess" of a million dollars, punitive damages, legal fees and interest from the time of the accident. Even if the hematoma on his leg that he claimed he needed surgery for was significant, New York law doesn't even provide for legal fees and interest from the time of the accident in such an instance, and punitive damages were an idiotic claim. The reputation of this tort "reformer" was badly tarnished by his hypocrisy in overreaching.

The lesson? Don't overreach in demands. Because an legitimate complaint will get overshadowed by the illegitimate ones.

Also:

Dot-Com has 'Date' in Court (NY Post)
Lawsuit claims that dating website Match.com sticks it to hopeful users (NY Daily News)

NY Ct. of Appeals: Code Violation Is Insufficient In Dog Case

2009-06-09T10:59:00.005-04:00

The New York Court of Appeals today tossed out a personal injury case premised on a violation of a local leash law. (Petrone v. Fernandez, June 9, 2009)

The dog in question here did nothing wrong. Rather, the defendant's rottweiler was lounging on the unfenced lawn of its owner and the plaintiff, a mail carrier, made a bee-line back to her car in panic. She broke her finger trying to leap through the window to safety. The dog never barked or attacked and returned to its owner when called.

Plaintiff wanted to prove negligence against the owner by virtue of the unleashed dog, as being unleashed was a violation of a local ordinance. But New York's high court tossed that out, since a suit based on personal injury from an animal rests solely in strict liability. The rule of strict liability is simple. It is premised on "harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities." So sayeth the court.

And what of the leash law violation being evidence of negligence? Irrelevant. According to the court:

[D]efendant's violation of the local leash law is "irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability"

The pictured pup, by the way, is our own. And he's very friendly. Unless you fear being licked to death.

Welcome New Readers (Financial Times of London, Ken Feinberg Story)

2009-06-08T22:10:00.005-04:00

For those finding this site after reading my quotes in a June 9th story in the Financial Times (of London), welcome.

(For other readers, the story deals with appointment of former September 11th Victim Compensation Fund Special Master Kenneth Feinberg to "a new role overseeing banks' compensation schemes to ensure that they do not reward unnecessarily risky behaviour." See: From 9/11 heartache to bankers bonuses)

I had previously written quite a bit of praise of Feinberg and his endless hours hearing the stories of victims in order to administer the fund that had been set up in the wake of the attack. (See: The Days After September 11th -- A Tribute To An Attorney)

From the article coming out on Tuesday the 9th is this part:

Eric Turkewitz, a New York lawyer who represented two of the victims, said he remained impressed by the stamina of Mr Feinberg. "He was a tremendous public servant," he said. "This is a guy who was personally hearing cases from early in the morning until late at night. How he did it and stomached it and stayed fresh for it after tale after tale I don't know."

If new visitors want to see at a glance some of the stories I've written about over the last couple of years, you can see this "best of" list that I update periodically.

And if it seems interesting, feel free to add me to your RSS feed. No extra charge.

(Related: Welcome Economic Times of India Readers!)

What It's Like To Lose

2009-06-08T17:16:00.003-04:00

There is no way to get around it: If you try cases for a living you will lose some. That's just the way it is. But it's not exactly the stuff you would read on someone's website or firm brochure. Writing about your losses is the biggest taboo there is.

So I guess that's what blogs are for. While someone at some point must have written on what it is like to lose a trial, I surely can't find it. So, taboos be damned, here goes.

First off, there are different ways to lose a case. It could be the failure to present a bit of evidence. It could be a judge looking to torpedo your case or an unethical opponent. A pure question of fact (who had the green light?) could do it. Or just a case improvidently brought.

But there are times when, even after losing, you look back and say you would take the same case again. Because you still believe in it. Those are the gut-wrenching ones. The clients you felt for. The righteous battles. The ones that left you up every night with a pad and pen by the bedside and your heart ultimately on the courtroom floor when the jury came back.

One such trial still haunts me, a breast cancer case from 17 years ago that I was asked to try for another firm. The facts were simple: A woman in her late 20s felt a lump and her doc said not to worry about it. A year later it was still there, and by then it was too late. She had a mastectomy a month before she was married. She was young and vivacious and the picture of the girl next door. Except that she was dying. The cancer had spread and we all knew she would be dead within a year of the trial. And she was.

There was no problem with the evidence. No problem with the experts. A cross-exam of the defendant that, if I were doing it again, I wouldn't change at all. And if I wanted to somehow stop my voice from catching and cracking during summation, I wouldn't be able to if I tried. It was that kind of trial. It was, when all was said and done, a pure issue of fact as to what happened in a doctor's office on a particular day.

I wanted to ask the jury what piece of evidence had influenced them. I wanted to learn for the next time so I would not leave another client heartbroken. But after several anxiety-filled days of deliberations, and a jury forewoman in tears when the verdict came back at the end of a long day of waiting, it was not to be. They refused to talk to us. In fact, they sent word through the court officer that they wouldn't even come out of the jury room that they had returned to until everyone involved had left the courthouse.

If I had the choice of trying any case again, it would be that one. It's the one I want back more than any other, and it has nothing to do with the time and money that went into it. Even 17 years later I can still feel that loss.

And no, you won't find it on my website. Over there you will find the good stuff, and the legalese required by New York ethics rules that past results don't guarantee success for future cases. Nobody puts a loss on their website. Nobody jokes about "coming in second."

The only way to avoid losses, of course, is not to try cases. And such a "trial lawyer" would then join the ranks of those known to be afraid of the courtroom, and thus, people who will settle cheap. Alternatively, one can also have such a high volume of business, or be so unable to handle the stress, that clients no longer exist. One old-timer I know said he had no clients, only files.

Criminal defense lawyers, I imagine, face some similar issues. Unlike the personal injury lawyer, though, the criminal defense lawyer will (usually) get paid, and hopefully not with chickens or other barter. Their clients naturally face substantially different risks of losing. Some of them deserve it, and the lawyers know it. Others may have been over-charged by prosecutors, or had rights violated, or have desperate families at home, any one of which may provide that emotional motivation needed to push counsel forward even harder than they otherwise might, and which can also crush you in the end.

If a criminal defense lawyer has all of his clients plea out, then, like their counterparts in the civil world who would rather settle for 40 cents on the dollar than try a case, they will sleep at night and not have to worry about ever losing. Some lawyers, it seems, simply do not care enough about the human that is their client, and therefore may not try as hard as they should.

And then there are the heroes of the legal world: The defenders in death penalty cases where there is no doubt about the guilt of the accused. And the defense lawyer accepts the scorn and contempt of the community for defending a monster in exchange for the honor of standing up for an abstract principle about whether governments should mete out death. Losing has an altogether different meaning in that context.

I'd like to think there is some moral or happy end to this post, but I can't find it. A gut-wrenching loss -- where you were unable to help your client despite all of your best efforts -- comes with the territory when you step into the well of the courtroom. And it hurts like hell, sometimes for years. Such is the nature of law practice for anyone that cares about the client. Walking the high wire without a net, and that is often what trying a case is, is an environment that isn't for everyone, and the level of burnout (and, perhaps, alcohol consumption) is high.

Of course, having such experiences would be a good thing to see in a potential judge, as I discussed in the The SCOTUS Nominee and The Tissue Box Test. It would bring a depth of diversity and understanding that those who made it to the bench straight from the ivory tower don't generally have. So in the judicial sense, at least there would be lessons of some type that might be applied elsewhere. But that is just philosophy. It doesn't help me in the trenches.

I don't know where these ruminations will lead, if anywhere. But I've spent a bit of time looking at other web sites as I wrestled with my unhappiness over my own, and I know that losing is the great elephant in the room when it comes to legal marketing. For every one of those victories that lawyers talk about, someone else went down to defeat. Of course, it's never discussed, and understandably so.

I will leave it to others -- if they care to write about a loss, and I don't blame anyone for staying silent on it -- to follow-on with this thread if they so choose.
------------------------------
Updated:
Ron Miller posted this on what it's like to lose back on July 13, 2007.

New York Medical Malpractice Insurer Is Insolvent (Bumped and Updated)

2009-06-05T14:39:00.000-04:00

Crain's New York Business reports that Physicians' Reciprocal Insurers, New York's second largest medical malpractice insurer with 25% of the state's doctors, is currently insolvent. The company is in the hole to the tune of $43M.

According to the article, while some insurers get taken over by the State Liquidation Bureau when they go bust, this isn't the case for the medical malpractice insurers.

New York has been having troubles in recent years with rising malpractice rates. Was it because of an increase in claims? Nope. You can read the reason here: Why New York Medical Malpractice Insurance Jumped 14%, and match that with a freeze in further increases by former Gov. Eliot Spitzer during his brief time in office.

Likely contributors to the shorfall:

Artificially low malpractice rates while the market was soaring;
NY previously "appropriating" $691M of medical malpractice insurance reserves to balance the state budget ;
Sptizer caving in to the medical lobby to prevent rate increases.

OK, that was the past. Filled with lousy public policy. Now to the present. Does this mean that the company is in imminent danger of demise? Not according to the company. From the article:

PRI President Anthony Bonomo says that while his company has a "negative surplus" of $43 million, making it insolvent under the state Department of Insurance's accounting rules, it is far from going out of business.

"This is no Ponzi scheme," Mr. Bonomo said. "DOI actuaries will always say the sky is falling." Mr. Bonomo is lobbying for a Senate bill that would allow insurers to switch to a cash-flow basis of accounting.

Also, previously, Eliot's Mess: The Ramifications for Medical Malpractice "Reform" in New York (3/12/08)

Originally published 5/21/09 - Bumped and updated on 6/5/09
----------------------------------------------------
Update - 6/5/09: From the PopTort -- Report Shows No Link Between Medical Malpractice Suits and Insurance Rates for NY Docs:

A new report released today and endorsed by a coalition of consumer organizations (including CJ&D!) shows that "despite rising malpractice insurance premiums over the past several years there has actually been a drop in medical malpractice payouts made by New York doctors."

Linkworthy (Jamie Spotzz, Old Jews Telling Jokes, and more)

2009-06-05T06:49:00.002-04:00

White Coat Rants, posting about his experience as a medical malpractice defendant, puts up his 2nd post on the subject, this one dealing with the retention of experts. A snippet to get you interested:

[My defense lawyer's] firm and the insurance company contacted me with the name of an expert that they had chosen to review the case. Everyone seemed impressed with his credentials. He was from a teaching program and his curriculum vitae was reportedly quite large. Hey, great, so if his testimony isn't that good he can roll up his "CV" and smack the plaintiff's expert around with it. Or we can use the CV for a doorstop during trial. Go for it.

Scott Greenfield suggests, strongly, that the generation of lawyers now appearing have some unreasonable expectations, and urges them to step away from the duckie. And don't miss the all-star video that goes with the post.

Cracked has The Six Most Terrifyiing Malpractice Cases Ever (h/t Ed.)

A Staten Island ferry crash victim gets an $18.3M award after his lawyer, Evan Torgan, turns down $10M. Then judge Jack Weinstein hacks the 33.3% legal fee down to 20%. Now the full fee is back, and even the plaintiff is happy about it.

A sinful Blawg Review #214 is up at Charon QC;

The Personal Injury Law Round-Up is up at TortsProf;

What do baseball players do when they retire with decades of work life ahead of them? Did you guess "Become a spammer for yet another search engine optimizing company?" Ken @ Popehat has the details in Search Engine Optimizers: One Step Up From the c1@li$ marketers. But don't miss the comments where former ballplayer Jamie Spotzz --unless it is an imposter -- ups the ante with a legal threat.

I learned of OldJewsTellingJokes.com from Orin Kerr at Volokh, and immediately found the story of the chicken dispute. How does the dispute get resolved? Ar their lawyers involved? Yeah, well, you gotta watch...

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

2009-06-04T16:34:00.008-04:00

I was skimming the questionnaire of SCOTUS nominee Sandra Sotomayor to look back at her life in private practice. And I found this starting on page 143 of the Committee Questionnaire:

ii. whether you practiced alone, and if so, the addresses and dates;

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New York 11231, from 1983 to 1986, but this work was as a consultant to family and friends in their real estate, business, and estate planning decisions. If their circumstances required more substantial legal representation, I referred the
matter to my firm, Pavia & Harcourt, or to others with appropriate expertise.

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor's position and her associate's position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it "Sotomayor & Associates"?

Did she have any associates when she was advertising herself in that manner? My guess is no, given that this was a side business that she says was devoted to consulting for family and friends. And if she had no associates, then it is a no-no to tell the world that you do. That's misleading.

From the American Bar Association comes this all-inclusive statement that such conduct is prohibited in every state:

Are there any Associates (or "Law Groups") in the House?

There are several state bar opinions that address a lawyer's use of terms in a firm name that carry with them the implication that there is more than one lawyer in the firm. Examples of such terms include "X and associates" or "The X law group". Citations to these opinions, along with digests of them as they appear in the ABA/BNA Lawyers' Manual on Professional Conduct follow.

All State bar opinions are in agreement that a lawyer may not use the term, "and Associates" if there are in fact no associates in the firm. See, South Carolina Opinion 05-19 (2005) (A lawyer seeking to open a governmental affairs and lobbying firm consisting of the lawyer and two nonlawyer employees may not name the firm "John Doe and Associates, P.A." The name violates Rules 7.1 and 7.5(a) because it misleadingly implies that the firm has more than one lawyer.), Ohio Opinion 95-1 (1995) (A lawyer who is in solo practice may not use the phrase "and Associates" in the firm name to indicate that the lawyer shares space with other lawyers, acts as co-counsel with other lawyers, or has non-lawyer employees. A lawyer who is the sole shareholder in a professional corporation may not use the phrase "and Associates" in the firm name when the lawyer in fact has no employees.)

In New York, the conduct would fall under DR 2-102, which bars misleading advertising on a letterhead. [See Comment 2] If in fact Sotomayor had no associates at her firm, it would appear she overstepped the bounds of self-promotion by making her firm seem bigger than it was.

Now I am well aware that there are a whole lot more serious ethical violations that take place. But I do my fair share of writing on the subject of advertising and self-promotion when it comes to practicing lawyers, and it wouldn't be fair to others to give Sotomayor a free pass on the subject.

Previous Sotomayor posts here:

The SCOTUS Nominee and The Tissue Box Test

Judge Sotomayor and the First Amendment (And the Pending Case)

Advice and Consent on SCOTUS Pick - First Time in Decades?

Sotomayor is Most Like Which Baseball Figure? (Yes! It's a real question!)

Update: I Googled the law firm name with this query: "Sotomayor & Associates" Sonia. I did not find any discussion of Judge Sotomayor's private practice under that firm name.

Another Doctor Live-Blogs A Malpractice Trial (Updated)

2009-06-01T15:44:00.006-04:00

It's happening again. A doctor is live-blogging his/her medical malpractice trial.

Regular readers will remember that Dr."Flea" had live-blogged his under his pseudonym two years ago, only to have the plaintiff's lawyer find out and confront him on the witness stand with some writing that contradicted his trial testimony. The world found out when his blog disappeared, and two weeks later his name and picture were blasted across the front page of the Boston Globe, above the fold.

But since the content is so compelling -- a physician under the gun during a trial -- it was inevitable that it would happen again. And so it has.

From this first installment at Emergency Physicians Monthly comes The Trial Of A White Coat - Part 1. In it we learn of the doctor's surprise after being served with the suit:

The rest of my shift that day sucked. I looked at patients as adversaries rather than as people needing help. I ordered more tests than I probably needed to. Wasn't for defensive medicine purposes or anything like that. Everyone knows that defensive medicine doesn't exist. Maybe it helped me feel better about "not missing anything." Maybe I didn't want to get named in another lawsuit a few years from now. My head wasn't in the game at that point. My brain was full and I wanted to go home. The shift couldn't end quick enough.

There is much more at the link, and I won't kill the story by letting it all out here. Suffice it to say that it is compelling reading.

But does it come with risks? You bet, unless the trial is already over and this is being published on delay. If plaintiff's counsel discovers the blog, every word becomes potential fodder for cross-exam if there are contradictions with trial testimony.

And here is an interesting thought/risk: The doctor writes that some of the details have been obscured for the purposes of publication:

This is the first in a series of posts I'm going to do about my malpractice trial.
Names and minor facts about the patient and his family have been changed.
Everything else is the real deal

But could that act of obfuscation also be a source of cross-exam?

If you ask me, this is another doctor playing with fire if this case has not already been resolved. But I will also say this, the style of writing seems to be much more deliberate then the fiery passion with which Flea wrote. So it could be that we are looking at a significantly more cautious person this time around.

Hat tip Shadowfax @ Movin' Meat
===========================================
Update: In a new post, Whitecoat confirms what many had wondered: The trial is over. The live-blog is not a contemporaneous view of events.

There were some interesting notes in the comments of the blog, by the way, about fears of violating HIPAA by publishing information about the case. But that is not a real worry. The physician-patient privilege was waived when suit was filed in the public courthouse. And certainly anything that took place at any trial (if it got that far) would have been in the public domain.

Sotomayor is Most Like Which Baseball Figure? (Yes! It's a real question!)

2009-06-01T06:00:00.000-04:00

Sure, I know what you're thinking. That my question in the headline is silly, while everyone is probing every legal angle they can find on Supreme Court nominee Sonia Sotomayor. Every word she has uttered or written is being discussed and debated -- while being cogitated, contemplated, ruminated and regurgitated in various hashings and re-hashings -- all in the hopes of finding something controversial to be meaningfully exciting. And we haven't even had hearings. But you should know that my question isn't simply about whether this particular Yankee fan "saved baseball," or not. No, this is a question that must get asked because it will be asked whether we like it or not.

It will get asked, you see, because Oyez.org, which runs a super-serious Supreme Court website, understands as I do that there is a passionate interest in baseball at the Supreme Court. If you don't know about Oyez's multi-media Supreme Court web site and its baseball quiz, here is an intro:

The Oyez Project began in the friendly confines of Wrigley Field in the late 1980s as the Chicago Cubs continued to break the hearts of its many diehard fans. It was during one such game that the idea of creating a multimedia-based Supreme Court experience took root. The first iteration was a series of complex HyperCard stacks built on a baseball-card metaphor. The "Hitchhiker's Guide to the U.S. Supreme Court" demonstrated the power of multimedia integration with serious academic content. Many students worked on various versions before the development of a web-based application. The development of a web-based version of the project stems from the foresight of Richard Barone and Joe Germuska of Northwestern's then nascent Learning Technologies Group...

Oyez has a biography of every Supreme Court justice, and at the end of each bio they have a quiz, asking the reader to choose which baseball figure a particular justice is most like. For example, John Jay, the first Chief Justice, is compared with Kenesaw Mountain Landis, the first commissioner of baseball. Philly fan, and former fantasy camp player Sam Alito's bio is here and you can take your own peek to see how well you do with a modern day jurist.

Oyez gives this brief explanation of its quiz:

"The Law-Baseball Quiz" debuted in the New York Times on April 4, 1979. Created by law professor Robert M. Cover, it compared baseball players and Supreme Court Justices. Unlike Eddie Gaedel, the midget in baseball's most publicized stunt, the Quiz has delighted and stumped enthusiasts on many occasions since it first appeared...

So, given that SCOTUSblog guru Tom Goldstein opined that Sotomayor is a shoo-in, and that the only glimmer of controversy is whether she ever made judgments based on race, and this turns out to be a non-issue when her record is examined, we must turn to the burning question of the day: Which baseball figure will Sotomayor be compared with from the world of baseball?

And if you thought you would just Google "First Hispanic Baseball Player" and be done with it (Esteban Bellan, 1871, Troy Haymakers) don't be so quick on the trigger. For color barrier-breaker Thurgood Marshall was not compared with Jackie Robinson, but with Emmet Ashford, the first black umpire. Oyez makes you think. (Sandra Day O'Connor picked up the Robinson connection.) And there is also that background issue of whether Sotomayor even qualifies as the first Hispanic justice, given Benjamin Cardozo's Portuguese roots.

Which brings us to the penultimate Sotomayor question -- since the dead horse beating rule has not yet been invoked on all things Sotomayor nor has anyone successfully jumped the shark here -- will she be compared with an Hispanic player? A Puerto Rican player? A woman umpire? Or someone that isn't nearly so obvious? Let the guessing begin...

Sotomayor-Yankee photo find: Underneath Their Robes

Linkworthy

2009-05-29T14:04:00.000-04:00

Last year I wrote of how Esmin Green collapsed and died in the waiting room at Kings County Hospital, after waiting there for 24 hours. But the person that wrote she was "awake, up and about" apparently wasn't aware that there was video, showing she had collapsed 1/2 hour before. Outrage followed. That case has now settled. See: Waiting Room Death Case Settles at TortDeform, Some justice for Esmin Green at last at Islandista, and City Settles For $2 Million In Death Of Neglected Patient at the Gothamist.

In the Bronx, one cop shot to death another. The Daily News has taken the racial angle on the shooting right away: Black cop killed by white officer: Horror in East Harlem as off-duty rookie is shot pursuing suspect;

Day on Torts has a piece on 39 ways for doctors to get sued for for not diagnosing breast cancer or not properly treating it when it has been diagnosed. The list comes from a medical malpractice insurer.

TortsProf with their 38th iteration of the Personal Injury Round-Up, continues to provide an outstanding weekly overview of all that was written about this field of law in the last week;

And there is no need to panic, Blawg Review #213 at Cyberlaw Central came right on time on Towel Day. So hitch on over for a round-up on the week in law and, perhaps, a few candid shots of law bloggers with their favorite towels. And yes, I am in there.