Archive for the ‘Odds and Ends’ Category

10 Signs The New Matter is a Dog (Before you even consider the merits)

TuckerTheDog-794626I’d been thinking of writing this post for awhile, and then Max Kennerly went and did a similar one, putting a fuse under my butt to get it done. His subject was Five Case Selection Tips for New Plaintiff’s Lawyers.

But while his was about the types of cases to reject, mine is more about the people that call. After being a lawyer for awhile, it becomes pretty easy to spot which cases are dogs…before you even consider the merits. Since the personal injury bar gets paid on contingency, vetting the case is pretty darn important.

We have a name for lawyers that don’t do a good job screening cases: Bankrupt.

So, without further ado, my ten quick and dirty rules for determining the case isn’t worth taking, regardless of its facts, and the potential client most likely shouldn’t be allowed in the door:

1. The call comes on Thanksgiving Friday, a real holiday, or some other time outside normal business hours. While that might be normal for criminal defense, for obvious reasons, it isn’t for personal injury law. If it isn’t important enough for the potential client to call when someone is likely to be around, the case isn’t likely to be any good.

2. The person refuses to speak to a paralegal. This means the potential client is familiar with law office procedures because the matter has been rejected many times before.

3. The potential client already has the medical records. This means the matter has been reviewed by others and rejected (though, in all fairness, you should find out who did the rejecting).

4. The request comes via email, but is not addressed to me with any salutation. This means the matter has been emailed to numerous lawyers.

5.  The request is a manifesto. It usually comes in Word format, single spaced, many pages, and rambles all over creation. You are neither the first, nor the last, to get this screed. You will not make it past the first paragraph, as it is utterly unreadable. If there’s a point, you’ll never find it.

6. The person who demands to know right away what the case is worth. The answer is nothing.

7. The person who guarantees the defendant will settle quickly. No, they won’t, as the caller is ill-informed (or delusional) about litigation. (Kennerly has this one also.)

8. The person who won’t answer your questions when you interrupt to solicit important information, and plows ahead to tell the story the same way it’s been told to the last 20 lawyers.

9. The quarrelsome caller. When you hit them with the claims the defense will make, they argue with you in a manner that indicates they’ve heard these issues before.

10.  The statute of limitations is about to expire. This means the potential client knew what the deadline was, and delayed. Even if the case has merit, this client will delay everything else once you get started. Don’t get started; the case isn’t as important to this person as you think it is.

Is it possible that there is a real case lurking within this list? Sure, anything is possible. But that’s not the way to bet.

The Holiday Card. With a Twist.

We are accustomed at this time of year to holiday cards finding their way to our doors and email boxes. Invariably, they present gauzy Christmas or winter themes of trees, snowfall or visions of peace.

And then United Process Service sent one to me. As you can see at right, the cover of the card doesn’t present elves, sleds, stars or toys. It presents devastation from Hurricane Sandy.

This is not, quite obviously, what people expect to see in a holiday card.

Each Christmas season Above the Law has a card contest that features a variety of innovative ways for law firms to send their greetings to the world, usually in electronic form since it expands the possibilities of creativeness. They are looking for clever, for funny, for cool.

Here’s a nice selection from 2010, including an electronic twinkly one from Gordon & Rees. As the WSJ Law Blog notes, Pillsbury Winthrop did a cute little stab at legal disclaimers in 2008. You can find lots of other fun little cards on those pages, as well as in other year’s contests.

Above the Law announced yesterday its fourth iteration of the contest, with highlights of some past cards. As one of its rules, the card has to be an e-card. The United Process came to me snail mail.

So United Process is not going to win this contest with their card. Nor do I think they were trying. Nor do I think they care. That hardly seems to be the point. It is not funny, or clever, or cool. It fails every test of what a holiday card should be.

But sometimes a card comes along and clubs you over the head and says, in polite terms, “Go count your blessings, dammit.” This is that card.

And this is the greeting on the inside — it will not win any awards for prose, but it makes its point crystal clear:


Happy Thanksgiving

Last year at this time I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. And dressed up in a turkey suit for a local race.

I dressed once again in that turkey suit this past weekend, but have nothing new to add to my Thanksgiving wishes.

So read last year’s message and change “fifth”  year to “sixth” year.

But one last thing to add: Please stay the hell away from shopping and spend time with the family.

You’re welcome.

Taking the Oath

While I was away on vacation, something happened to a friend of mine.

This friend came to our shores over 10 years ago. Her documentation was not, shall we say, in order. Many keyboards have been pounded in other corners of the internet on such immigrants.

She came here to work and make a better life for her family. She babysat, cleaned homes and worked as a nanny. A very, very, good nanny. So good, in fact, that one family offered to sponsor her for labor certification, a first step down the road to green card status. And bank accounts, social security number, driver’s license, and the ability to leave this country to visit family and safely return here. She would no longer be in the shadows.

And she said something to me many years ago that no one had ever said before, when I told her that she would have to pay taxes if she became “official” and went on the books. She said, “But I want to pay taxes.” She knew, perhaps better than those who were born here and take citizenship for granted, what it means to be a member of a society.

About a week ago she paid a visit to Federal Plaza in New York. At this great big building new citizens are born. The time had finally arrived to pledge allegiance to the United States. Not because a teacher in a classroom told her to stand with the rest of the class, look at a flag and robotically recite a pledge. School children can’t possibly understand the significance of those words, unless perhaps, they are war refugees who know what the other side of the fence looks like.

My friend pledged her allegiance, promising to “protect and defend the United States against all enemies, foreign and domestic,” because it meant something to her. She will vote for the first time this November. She takes her place beside you and I, with the sole door that is closed to her being that of the office of the presidency. All others are open.

I thought about including her name in this short piece, and my association with her. But it occurs to me that while her story is unique, it has played out in countless other iterations over the generations in so many other places.

I’m two weeks late with an Independence Day post. But I think this will suffice.

And I hope that, perhaps, my dear readers will spend an extra moment or two when encountering an immigrant, thinking about what their stories might tell.

Watergate, 40 Years Ago Today (And Some History In My Office)

H.R.Haldeman on the witness stand. Judge John Sirica on the bench.

It was 40 years ago that an apartment complex in Washington DC became famous for a burglary. And since then, media types have tried to attach -gate to any potential scandal. The purpose today is not to write about the scandal itself…a quick look at the Wikipedia entry I linked to will give viewers a refresher course — but to its significance to me.

As it happens, I have a small piece of that history hanging in my office. They are four sketches from the trial of White House aides H.R. Haldeman, John Ehrlichman and former attorney general John Mitchell, two of which you see here. The others are at my website.

I acquired them from the grateful widow of the artist, John D. Hart, after trying his medical malpractice case to verdict 20 years ago. Back in the day, Mr. Hart was an accomplished artist whose works are in the permanent collections of a couple museums.

And each day I look at these drawings, and each day appreciate the concept of governmental abuse of power and the arrogance of so many that hold positions within it. But also, I appreciate the power of the jury to hold the people involved accountable.

Six jurors listening to the Watergate tapes

Disconnected from my Self Phone

I lost my phone two weeks ago.  In an age of instant communications, that had the potential for anxiety and crisis. Since it was an iPhone, it also cut me off from instant email, texts, sports scores and Googling to settle friendly bets. You know, the important stuff.

But I probably didn’t miss too many incoming calls, as I don’t readily give out the number to too many. I don’t want to be reached at an instant’s notice by anyone.

When I tried to replace it with a gently used phone bought on eBay (my contract wasn’t up, and I would have to pay full freight for a new one), that phone never arrived in my office. So the seller replaced it. Hence, a two week hiatus.

I’m back up and running again, but I lost nothing of value. In fact, my semi-vacation from instantaneous connectivity was quite nice, and I may simply opt to leave that phone in the off position sometimes. Just because. Is that much that we really need to have at our fingertips?

One additional benefit, when talking about the lost cell phone my son referred to it as a “self phone.” Having never actually seen the spelling in print it was an easy error, but a phrase that happens to be dead on target. The Urban Dictionary refers to it as a phrase for calling oneself, after presumably mis-placing the phone somewhere. But I like my son’s definition better. The self phone is my phone.

And now that I have a new one I can use it for its most useful purpose: Letting my wife know which train I’m on as I head home.

Is “Article III Clerk” for Real? (Updated)

photo credit: FrogMiller, close up of US Constitution from National Archives

Have I seen this play before? A young guy, believing he is anonymous, spews on the web. When we last saw the show, it was starring  a doctor known as Flea writing about his malpractice trial. He ended out on the front page of the Boston Globe.

Today we may be seeing the reincarnation of Flea, in the Twitter persona of Article III Clerk,* an arrogant, pompous judicial clerk writing about his boss and the litigants that come before the court. And doing so in scathing terms.

But is it real? Or is s/he merely a humorist of some type?

He wouldn’t be the first person to use an Article III pseudonym, of course, as Article III Groupie preceded him by many years, with a delicious wit at Underneath their Robes. She described herself as “a federal judicial starf**ker.” She had style. And A3G wasn’t anything close to arrogant as she ran her stories on judicial “divas and hotties.” When A3G finally revealed herself six years ago this week, she was actually David Lat. He quickly resigned his post as Assistant United States Attorney and went on to blogging greatness at Above the Law.

(For the non-lawyers, Article III refers to the third article of the Constitution, which establishes the judiciary. Rick Santorum thinks it’s the least important part of government. Why? Because it comes third:

“Article I is Congress, Article II is the president and Article III is the courts. If it was the most important, they wouldn’t have put it third.”

OK, I digressed, but you gotta admit that was worth it, right?)

Back to Article III Clerk. His Twitter feeds describes him thusly:

Current law clerk for a Senior U.S. District Judge on the East Coast. He’s really fucking old, so I roll the dice of justice on my own.

So right out of the box, before knowing nothing else about him, we know something is afoot. Is it humor, or a twenty-something speaking the truth and playing with matches under the cover of anonymity? When we peek inside his feed that just started on January 11th, we see some stuff that could constitute decent criticism and wit:

NOTE TO PLAINTIFF’S LAWYERS: If you ignore Twombly and Iqbal in the Opp to a MTD, you should be disbarred. They happened. Deal with it.

If you put “Esquire” after your name at the end of your motion, I will rule against you. Every. Time.

The opposition you filed was goddamn unreadable. You think I want 10 more typo-ridden pages about what light I should view evidence in?

Not bad. Could be worth repeating if you like that stuff.

But….and you knew there was going to be a “but” didn’t you? Let’s check out a few other tweets (or twits) that seem to dance up to the line —  if not over that line if the feed is not a parody or satire, and could place the author’s license at risk:

Judge called from home today to “check in.” I got it under control you senile fuck. Go back to napping underneath 20 blankets.

Thing is, if I don’t grant this MSJ, this thing might actually go to trial. Which means I have to interact with Judge in person. Paaassssss.

Clerk of court is either on smack or she is retarded. 2 days since I gave her ruling. Release my brilliance to the people. Let them weep.

@lawschoollawlz I’m a de facto Art. III judge at age 27 & haven’t talked to “boss” in 3 days. What in the living fuck are you talking about?

I really, really hope the Judge doesn’t die while I’m clerking.

Not sure what to think. Would this person really want his identify disclosed? Remember the Golden Rule of the digital age: Don’t type anything you’re afraid to see on the front page of the paper. What are the ramifications, if he speaks the truth? If truthful, he’s revealed that he works for a senior federal judge on the east coast who may not be well, that he is 27, and the court clerk is female. That’s a lot of biographical data to narrow down the possibilities. Also, that he’s incredibly arrogant for a young pup that may never have stood in the well himself.

Hopefully, it’s just an attempt at humor.

*Update 1/15/12 - The Twitter feed of @ArticleIIIClerk has gone dead. Which leads me to guess it might have been real, and not a parody. Also, that the clerk woke up and realized he was making a big mistake. Just my guess. Anyone with real info, feel free to let me know in the comments or via email.

New York State Settles Prison Death Case for $1.2M

Brandon Jackson (photo undated)

A little bird chirped in my ear: Psst. I got a scoop. And so I do.

This past April the New York Daily News wrote up the story of 29-year-old Brandon Jackson who was sent to Summit Shock Correctional Facility, a state run, boot camp style, detention center about 50 miles west of Albany. Two weeks later, after a forced two-mile run, he was dead of heat stroke.

Would a two mile run kill me? Nope. But then, I don’t weigh 270 pounds, have asthma and an enlarged heart. All of which Jackson had, and which should have disqualified him from the boot camp program:

“[Jackson] was not physically or medically suited for the DOCS Shock Incarceration program and should have been excluded,” the State Commission of Correction ruled in a June 2010 report.

And now the state has ponied up $1.2 million to settle the matter.

Jackson had been sent to the camp after pleading to a drug charge that earned him two years, in the hopes he could be rehabilitated. Rehabilitation is, after all, the hope of many in the correctional biz. Recidivism sucks.

The camp was a politically popular program and the program’s commissioner was trying to find more bodies to fill it. Potential prisoners were told that medical issues would be taken care of in the harsh environment.

Despite Jackson’s history of hospitalization for asthma, his obesity and his enlarged heart, he was approved for the program. His medical file noted that he was prescribed an albuterol inhaler for the asthma. But the asthma inhaler was taken by a guard because it wasn’t properly marked, and they refused to give him new medicine. The camp, it’s worth noting, had two nurses but no doctor or  nearby hospital.

Jackson, during his brief stay at the facility, was singled out for abuse because he was unable to complete many exercises due to his physical condition. After it was over, inmates gave detailed statements to the Inspector General’s Office detailing that abuse. He’d made repeated complaints as to his health, including severe shortness of breath, and he made numerous visits to infirmaries. At one point respiratory tests were done that showed he had a severely restricted airflow. Despite this, he was taunted and threatened by the drill instructors who told him that he would be “arrested”, and that he should just “drop dead” as he was pushed to do that which he was medically incapable of doing. He was struck numerous times, mostly slaps to the back of the head.

After the gross incompetence of the staff, the asthmatic Jackson, without medication available, was forced out on the run that would end his life:

“His obesity, history of asthma and [enlarged heart] should have disqualified him from being forced to participate in strenuous activity in the heat of August,” a pathologist wrote in Jackson’s autopsy report. “Such individuals should not be candidates for ‘boot camp’ or ‘shock camp.'”

The action was brought as a federal civil rights claim, for violating the 8th and 14th Amendments.

According to the family’s attorney, Eric Buckvar, all of the money after litigation expenses will go to Mr. Jackson’s two children, who live in the Bronx. They were ages 7 and 9 at the time of his death. But it won’t come as cash, to be squandered in youth. Rather, it will be part of annuities that will start paying out when the children are of college age, and will be structured so that college and graduate school will be easily attainable. The exact amount is not yet known as the court must still approve the settlement and distribution of funds (including legal fees and expenses).

While such a settlement is no substitute for a father, at least the money might be used to help break a potential cycle of poverty. Depending on what these two kids do with their lives and their education, the taxpayers might, quite ironically, see a return on the funds paid out for the state having negligently killing Mr. Jackson.

The case settled after mediation with Magistrate Judge Maas in the Southern District of New York, who worked to close the gap between the two sides. It settled shortly after the mediation ended.

40 Years Ago Today (Apollo 15, Road Trips, and Instant Everything)

Apollo 15 takes off; July 26, 1971. Photo credit: Dad

I’m going to start off topic today to reflect on my youth and the time we drove from New York  to Florida when I was 11. As one of my older brothers likes to remind me, we drove  when I-95 wasn’t complete, using US-1 as we drove down the Eastern seaboard for a family vacation. My father snapped a photo of a sign that said “Future Home of Disney World.” (Eventually I’ll find a legal point for this post, don’t worry.)

It was on that trip,  40 years ago today, that we saw Apollo 15 blast off toward the Moon. My dad captured that moment also, in the photo you see here that was subsequently used by Wired Magazine in 2008 to celebrate 50 years of NASA. I’m standing with my mom and two of my brothers are on the roof of the Oldsmobile Vista Cruiser that we drove in. On the way down south my three brothers and I swapped turns in the rear-facing tail-gunner seat.

We left at home our high tech toy, that being the Zenith Space Commander remote for the TV, which I still have someplace in my house.  And for those too young to know the derivation of the word “clicker” for remote control, that’s why we have Wikipedia, but the entry doesn’t tell you that you could also change the channel on the TV by rattling a few quarters together.

Watching a massive Saturn V rocket blast off to the moon can leave quite an impression on an 11-year-old. We listened to the countdown on the radio, and heard the tinny roar come out of the speakers as we watched a vast ball of smoke billow out from under the rocket to envelope it.  For a few moments, I thought it had exploded on the pad. But then the nose cone peaked its way out from the smoke, and the astronauts roared up to the sky on the proverbial pillar of fire, with the thunderous sound reaching us many seconds after our eyes had already seen the rocket start to streak up and away. They carried a Moon Buggy with them to become the first to drive on the Moon.

I think about that now as kids of the same age as I was back then are getting cell phones and iPads, texting, sexting, twittering and facebooking. Friends are now some type of amorphous concept as we live in the age of information overload.

But I think we had the better deal. The rush of today’s youth into technology strips away much of the fun of growing up, getting dirty, unstructured play and forcing us to invent games out of boredom. It wasn’t necessary that my friends, pseudo-friends, faux-friends, cyber-friends, frenemies, followers and others, knew what I was doing all the time. And it still isn’t.

While I continue to be as fascinated today with the digital world as when I first went online circa 1992 (Prodigy anyone?), I don’t really understand the way some feel compelled to give their hourly updates. Some stuff is so boring I wouldn’t read it if written by my own family. I know that this is something expressed many times by others, but on the 40th anniversary of one of the most impressionable sights of my youth, it gives me reason to reflect.

The biggest concern about all that technology, I think, is that it enables a reliance upon others. For information, data, and social relationships. Lost in the process, perhaps, may be some degree of being able to stand up on your own two feet, to learn the ability to eat what you kill.

I wonder sometimes if that reliance upon others that is being bred by the ease of interconnectedness might also stymie the ability of future trial lawyers. For in the well of the courtroom you can’t just stop what you are doing and text some question to others. You come prepared and you do cross-examination, which is often akin to walking a high wire without a net. There is no short cut to learning the skill set, and that is what technology teaches us to expect: short cuts. You have to learn the facts, learn the law, and learn the tactics and skills to weave those together. Our digital expectations of instant weather, traffic reports,  ball scores, and communications with friends runs directly counter to the time needed to learn a profession. Our kids (and the next generation of professionals) may be getting the short end of the stick by being bred on instant everything.

Having now started with a giant rocket and found my way to a point about law, I’ll stop. And I’ll spare you the story of the baseball from my youth (updated!) that I kept; the one that I stitched back up when the laces were destroyed throwing grounders to my brother in the street. There’s a story in that too, though it might take some work to find the legal connection.

(And thanks, Dad, for taking us.)


Apollo 15, Driving on the Moon (NASA)

Apollo 15 launch (You Tube)

Countdown: Apollo 15 (Brian Floca)

Cop Gives Ticket to Brain-Damaged Girl (Why? I have a theory…)

Takara Davis, after being hit by a car.

This story is just horrible, on many different levels. Yesterday Elie Mystal at Above the Law wrote about a cop that gave a jaywalking ticket. (Comatose Little Girl Gets Ticket for Jaywalking.)

The problem? The person he was giving it to was 13-year-old Takara Davis, who was in surgery with her brain bleeding after being hit by a car. As Mystal summarizes the story that originally appeared on Channel 8 in Las Vegas, he wrote:

Allegedly, Takara Davis was jaywalking when she got hit. So a police officer showed up at the hospital and gave the ticket to her mother, Kellie Obong. Why did they hand the ticket to the mother? Because Takara was busy being rushed to the operating room as the doctors tried to stop the bleeding in her head…

If you are anything like me, then reading about such a thing and the complete lack of empathy by the cop would make your head explode. And Mystal has some choice words:

But a jaywalking citation while the kid is lying there bleeding in her brain? Are you serious? What kind of self-absorbed jerk of a police officer walks to the hospital to do that job?

I almost felt sorry for the pathetic Las Vegas spokesman who was forced to lie about the incident as the girl moved from surgery to medically-induced coma:

A spokesperson for the Metropolitan Police Department issued a statement about how the citation was issued, saying, “Our officers conduct themselves in a professional and compassionate way. We wouldn’t do anything deliberately insensitive.”

It’s a lie because obviously it was deliberately insensitive. Why would the cop do it and why would a spokesman actually defend such inhuman conduct?

I have a theory. Since no human being in his right mind would ever conduct himself this way (well, almost none), I think someone put him  up to it. Like the driver of the car that hit the kid. I would bet that the driver was a cop. Or friend/relative of the cop. Or local politician. Someone with the ability to influence how the cop does his job. Because I bet there was a driver thinking about liability and being sued, as the child’s life ebbed to the edge of her world. Someone thought giving the kid a ticket would be a good idea to use in a potential civil lawsuit later, and “asked” the cop to do it. I can conceive of no other explanation.

This does not excuse the cop on the scene, of course, who went ahead and did this. I don’t care if it was the Chief of Police that was behind the wheel of the car that hit the kid. You have to act like a human first.

And here’s the thing: This hair-brained ticket idea likely won’t even work as a means of defending against a civil suit, and might well backfire. For a ticket is merely an accusation. You get a chance to fight tickets. To plead not guilty. The fact that someone is accused of something isn’t admissible in any court that I know of.

So there will be a trial if the child doesn’t think she jaywalked. Assuming, of course, she is capable of conversation.

And even if she did jaywalk, it might not excuse the conduct of the driver. The fact that someone might be jaywalking doesn’t give license to run a jaywalker down. This point is self-evident if you think of a drag-racing drunkard. (In Nevada, comparative negligence does not bar recovery so long as the injured party is less than 51% at fault. NRS 41.141)

But there is more to this story. And that more is about the driver and what it is he asked the cop to do at the scene of the accident as the life of the girl hung in the balance. And what it is that driver most likely did, in my opinion, will likely not sit well with a jury one day if it ever comes to that.

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