Archive for the ‘Odds and Ends’ Category

Hacked! (And Did I Meet My Hacker at Killington?)

It happened last week. I found out right after I posted a story on a $50M personal injury verdict, and just hours before I headed off for four days of skiing at Killington. This blog was hacked.

And oddly enough, while skiing, I think I met the hacker. Or at least someone just like him.

The emails and alerts started last Tuesday, as people began getting redirected from here to a porn site, with a message asking them to click on something having to do with a virus alert. Frantic messages from me to my tech guy then followed, who updated everything and cleaned up the area. Then, apparently, I got hit again. Once again, stuff restored.

Calling me pissed off would be an understatement as I imagined a parade of horribles that I wished would descend on the hacker’s head. It isn’t often that I actually run into people with such an utter contempt for their fellow humans. After all, as an attorney I deal in the world of negligence, not the criminal arena that so often deals with deliberate attacks.

But then, on Saturday morning, after just a couple of ski runs, my wife hurt her knee high up on the mountain. She needed the dreaded toboggan ride down to the base lodge and a trip to Rutland Regional Medical Center.

In the course of that experience, we saw a lot of good old-fashioned human empathy. People stopped on the slope to see if we needed assistance (we did, thank you for stopping). And then they went off to get help. Everyone on the mountain, no doubt, could imagine this happening to them and knew exactly how they would want others to react. They responded with The Golden Rule of treating others the way they would want to be treated. They offered to stay with us if need be, and do whatever they could (nothing to do but wait for Ski Patrol, but thank you for asking).

And then there he was, my hacker. Or as I said at the top, someone just like him.

As Mrs. NYPILB was pulled on the sled at the first aid station at Killington base near 11 a.m. — and this had the potential to be far more serious than her tushy bone injury last summer — we went past a ticket window. And a voice called out, with what sounded like a German accent, “You done skiing today?” Huh? Was he talking to me? I turned to see him looking at me, and he repeated the question.

What a bizarre question I thought, as I hauled our skis to a rack and ran to catch up with the uber-nice ski patrollers who were getting ready to unload her. Yeah, I said, I’m done. Dumb question, I thought. And then…

“Want to sell your ticket?” If I wasn’t a bit rattled at worrying about my wife, and so perfectly stunned by the question, I might actually have walked up to him and knocked him down. Which, if you know me, would be quite out of character having never done such a thing. But I simply couldn’t recall having ever seen a person so completely lacking in empathy. Here was someone getting ready to take his wife to the hospital for lord knows what kind of injury — and you didn’t need an imagination of any kind to come to that conclusion given my wife laying there on the sled — and the thing that ran into this young punk’s mind was saving a few dollars on his lift ticket.

And it occurred to me, as I waited a bit at the hospital for the x-ray results (negative, visit to local ortho coming soon with ACL concerns) that this creep is just the sort of person that hacks. Absolutely no concern for their fellow man. No ability to identify with the plight of another. Zero emotional capacity to put themselves into the shoes of others.

At trial, empathy is something that lawyers look for and try to use. Now we can’t say to a jury, imagine if this was you — that is a violation of a different Golden Rule, this one for juries, and might result in a mistrial.  But many a lawyer does ask during jury selection if people would avail themselves of the jury system if they felt they had been wronged. That gets both to the feelings they have about the civil justice system, and incidentally asks jurors to consider what they would do if they were the injured party.

I hope that there weren’t too many of my readers that were affected by the hack. I confess to some complacency on the subject of hacks and viruses since I use a Mac, as Macs aren’t exactly ground zero for hacking. Mac users don’t generally even use any kind of anti-virus software, other than what Steve Jobs might build into the system to quietly work. But this didn’t take place on my computer. It happened on some server somewhere in the back of beyond of the information superhighway.

Perhaps one day the hacker will find himself (and you just know it’s a him, and not a her, don’t  you?) in need of assistance. Or the victim of some accident or attack. And will think back on his life and the stuff he has done. But until then, I expect he will remain a slime ball. And perhaps a slime ball forever.

The hacker might be tech smart, but is utterly barbaric in the world of  human relations. We can only hope this will prevent the creation of similarly inclined offspring.

Happy Father’s Day, from Me and Harry

With my kids now tucked in and, I hope, happily in dreamland, I wanted to finally write that Father’s Day message. But Harry Chapin already did it as well as could be done with Cat’s in the Cradle, about his son Josh growing up while he was out there trying to make a living with his guitar. I think of the song with every school play, baseball game and other event that comes up in the lives of my kids.

And so, to all those father’s who spend more time that we’d like away from the home, in order to support that home and do our best for the people that we represent, I bring you this live rendition of Chapin. I was surprised, in hunting this down, to learn that the song had been covered by so many others, including Guns N Roses, Johnny Cash, and others (compilation). But this version  is all Harry:

Harry Chapin, live, Cat’s in the Cradle

Welcome to WordPress (Is this thing on?)

After 935 posts using the Blogger platform, I move today to WordPress.  It seems that Blogger is no longer supporting FTP publishing as of May 1st. I’m not really sure what that means, except my techie guru tells me that I won’t be able to use Blogger to post to my own blog if it is hosted by someone other than Google.

Bob Ambrogi had discussed the problem back in March as he contemplated shutting down his LawSites blog and starting anew (as had Venkat Balasubramani).

Since I couldn’t claim complete happiness with Blogger, due in part to poor controls on comments, and I certainly had no intention of starting over with a new URL, I’ve moved today to WordPress.

I have some minimal experience with WordPress, having used it for the Paine to Pain Trail Half-Marathon site, but there are only a few posts there and limited activity since the site (and the race) are new.

I’m open to suggestions on which WP controls work best, so you might see some off-again on-again changes as I experiment. For now, though, one feature I’ve set is to close comments after 14 days.

My thanks to Rob Saunders, my techie guru, for making the changes, apparently without problems.

Back When I Had Hair…

I wasn’t going to write anything about the 22nd anniversary of my 28th birthday, until my brother sent a picture on to me. If you believe AARP, it’s an old picture. But that isn’t the way I like to think of it.

It is a good day, however, to repeat something I wrote three weeks ago explaining why I run April Fool’s gags:

Lawyers often deal with misery. Peoples’ lives can be forever changed in a fraction of a second in an accident. Divorce. Child custody. Bankruptcy. Arrests. There is no real end to the chain of human misery that clients bring to the doors of practicing attorneys.

So the April Fool’s post is a count-your-blessings kind of thing. You only live once and life doesn’t come with rehearsals. If you can enjoy yourself a little without hurting someone else, then that’s OK. Laughter isn’t the antidote to all of life’s ills, but it sure doesn’t hurt. Unless, of course, you’re the Paper of Record.

Seems to me that blessings should be counted on other days as well.

Thanks to Mrs. NYPILB and the little people in the house for the breakfast in bed. And if you were looking for a birthday video, you can forget, as we already made one that was banned. So you’re stuck with the pic.

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

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

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

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

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

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

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

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

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

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

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

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

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

Rest in peace.

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


Anne Reed, Editor of Deliberations, Moves On (New Job and Blog Bites The Dust)

Anne Reed, Wisconsin lawyer and creator of the wonderful Deliberations blog about juries, is calling it quits with respect to the law firm (Reinhart Boerner Van Deuren SC) she’s been at for 28 years. She moves on now to be the Executive Director of the Wisconsin Humane Society (where her mug shot already graces its front page).

Anne had a great perspective on juries and the selection process, on studies about how people (and groups) think and many a tip on how to approach the actual trial of a case. It’s clear that the legal blogosphere loses a terrific voice as she closes down Deliberations.

I’m likely not the first, and certainly won’t be the last, to wish her all the best in her new endeavor. I’m also probably not the only one to wonder if she will blog about the experience of morphing from a career in law to a new area.

And if any lawyers wondering about how to go about blogging are reading this, this is what happens if you blog well. From her firm bio, which is likely about to disappear:

Anne writes about juries and jury selection in her Web blog, Deliberations, which is listed in the ABA Journal’s selection in 2007 of the top legal blogs. Because of her work in this area, Anne has been quoted in the ABA Journal, the National Law Journal, the Los Angeles Times, Lawyers USA and the Wisconsin Law Journal, among others.

On a final note, our dog Tucker was rescued by a humane group similar to the one Anne is going to work for.

He is, to say the least, grateful that people such as Anne exist in this world, or he would still be wandering the streets and garbage dumps of the place of his birth. Instead he gets to chase squirrels and endlessly sniff the personal parts of every resident and visitor to cross our threshold.

And that makes him happy.

Anne, Tucker wishes you all the best.

Links to this post:

Around the web, November 30
Dangers work both ways? Third-party litigation finance proposed for the defense side [Longstreth, American Lawyer] Related: “Investing in Lawsuits: ‘Litigation Financing’ and the Consumer Protection Imperative” [Leichty/Thomason, WLF,

posted by Walter Olson @ November 30, 2009 6:44 AM

November 24 roundup
“California’s Largest Cities and Counties Spent More Than $500 Million in Litigation Costs in Two Years” [CACALA]; Violence Policy Center blames handgun carry permits for offenses that include … strangulation?
posted by Walter Olson @ November 24, 2009 8:45 AM

Chamber of Commerce Credits Apple’s Success to Trial Lawyers

I love the U.S. Chamber of Commerce. It’s utterly over-the-top arguments have lead it to the conclusion that the success of Apple is due to trial lawyers.

Apple, you see, became the latest company to tell the Chamber of Commerce to go crap in a hat when it came to its stance on climate change. Apple quit. But according to the chamber, they weren’t told by Apple to take that proverbial long walk of the short pier because its position on global warming was out of touch with science and the opinions of the vast majority of people. No, it couldn’t be that.

According to the chamber, Apple must have quit the organization because of the trial lawyers. I kid you not.

In Friday’s Washington Post the chamber said its critics were organized by “our normal adversaries– trial lawyers, activist unions [and] environmental extremists.”

Chamber COO David Chavern went on to write in his letter, that “[I]nterest groups are looking for public leverage to force us to do things against the best interests of the business community…”

You see, according to the chamber, Apple, one of the most successful consumer businesses on the planet, doesn’t really know what is in its best interests. Apple, according to the chamber, is being pressured by trial lawyers. We’re responsible for Apple being what it is today.

It’s nice to see such a feather in the cap of the trial lawyers. Usually we must be satisfied knowing only that there are safer playgrounds, safer cars, safer drugs, and safer consumer items of all kinds as a result of lawyers holding companies accountable for what they make.

But now we get to add in Apple’s success. Cool. I can live with that.

h/t Legal Reader
See also:

  • The Chamber and Climate Change Debacle: Ignoring the First Rule of Holes (NRDC):
    …it is clear that the US Chamber is worried about the impact of the controversy over their climate position, but it isn’t worried enough to have an honest discussion with its members as to what’s going on. Instead, the Chamber is firing wildly at its traditional scapegoats – lawyers, unions and environmentalists – and blaming the troubles on them. But what the Chamber is burying here is that it has created this mess for itself, and the companies that have quit the chamber and criticized it have done so of their own accord. (more)

  • Chamber: They Just Hate Us Because We’re Awesome (Mother Jones):
    The US Chamber of Commerce has had a very rough week. Mother Jones exposed their inflated membership numbers, forcing the Chamber to shrink its tally by 90 percent. Following a series of high-profile departures by members who opposed the leadership’s position on climate change, a group of liberal NGOs has organized a “Stop the Chambe”” campaign, and the San Francisco Chamber is publicly divorcing them. The Chamber is so beleagured that it is now painting itself as the victim of—wait for it—a “corporate campaign.” (more)

  • Chamber fires back at climate critics (Politico):
    The U.S. Chamber of Commerce fired back at critics on Thursday, after a series of defections by member companies angry over the business lobby’s opposition to climate change legislation.”The only regrets we have is that we maybe have not always used the right language,” Chamber CEO Tom Donohue told reporters. “We don’t have regrets about our position, and we don’t intend to change it.” (more)

Judge and Blogger, Jerry Buchmeyer, is Dead at 76

In my blog roll off to the right under “Legally Humorous” sits a link to Say What?, a little Texas law blog from US District Court Judge Jerry Buchmeyer, who died Monday at 76.

But I didn’t add him to my blog roll and RSS feed to read about Texas law. I tuned in because he had a great collection of trial and deposition snippets that, when you read them, were sure to lift your day. And to warn you about engaging the mouth before engaging the brain.

Oddly enough, though he died Monday, he has a post dated today (reprised from 2001). So somewhere up in the Great Beyond, Judge Buchmeyer must be laughing a little. And as long as Judge Buchmeyer continues to post, I’ll continue to keep him in my blog roll.

One sample from the blog looks like this:

Q. Do you know how much money?

A. No, not specifically.

Q. You recall testifying as to a seven or $800,000 figure concerning Roseneath yesterday?

A. Whatever the record said.

Q. You recall discussing a seven or $800,000 contribution to GRI by Roseneath?

A. And I said whatever the record said.

Q. You don’t recall that right now?

A. I said whatever the record said.

Q. That’s not responsive. Do you recall?

A. Read my lips.

Q. Read mine. Do you recall?

A. Look at me again, read them real careful.

Q. And read my lips carefully -

Mr. Butler (wisely): All right. Gentlemen, I guess that’s about enough of this.

It’s easy to watch an hour disappear just roaming through his archives reading some of the transcripts that people had sent him over the years.

You can read some of the obituaries, that focus on his judge-life as opposed to his blog-life, here:

WSJ Law Blog;
ABA Journal;
Box Turtle Bulletin;
Tex Parte Blog;
Pegasus News;
Legal Blog Watch

Does "No Cash" Rule of NYC Marriage Bureau Violate Federal Law?

Over at the WSJ Law Blog is a little post by Ashby Jones of a restaurant going cashless for security reasons. Credit cards only. He ponders whether this is legal given that greenbacks are legal tender “for all debts public and private.”

The law on this, from Section 31 U.S.C. 5103, is: “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.”

After a little analysis, he (sort of) concludes that as a private business they have a right to reject cash and not to do business with the cash-only patron, much the way a taxi driver might refuse all $100 bills.

But what of the government? When I went for a marriage license 10 years back, I was faced with NYC’s Marriage Bureau refusing to take cash. They absurdly insisted that I go to a bank and get a money order. They wouldn’t even accept credit cards.

I thought back then that this couldn’t possibly be legal, but with marital bliss upon me and a fiancee next to me, I wasn’t really in the mood to pick a fight.

But Jones’ post made me wonder if this rule had changed over the last 10 years, so I went to the NYC Marriage Bureau page and checked. And I found:

The fee for a Marriage License is $35 by credit card or money order payable to the City Clerk.

So now they accept credit cards. But still not actual cash, despite it being “legal tender for all debts public and private.”

Can that possibly be legal?

What to Wear to Court (Client Edition)

Bronx Justice Joseph Dawson went off on a rant, the Daily News reports. He was sick of people showing up in his courtroom dressed like slobs. (He’s not the only judge to do this.) The News quotes him saying to criminal defendants:

“Your client comes up in a T-shirt and sweatpants, chewing gum? This court deserves more respect than that.”

And to another:

“I’m not saying you have to wear a suit. You don’t. Just wear something appropriate.”

Now this blog gets a fair amount of hits for people looking for information on what to wear to court, as a result of this piece I did on a lawyer wearing an ascot to court. But I’ve never addressed the client version, so here goes:

It boils down to one rule, and one rule only: Wear the clothes you would wear to a house of worship. No slob clothes, no heavy jewelry, and ladies, no plunging necklines.

Lawyers and other professionals who routinely wear suits are expected to wear suits, like it or not. But many folks don’t have suits, or if they do, they own only one; the one they wear to funerals. And you shouldn’t wear the funeral suit because you will look just as comfortable as you would at a funeral.

If you are there to testify or make any kind of appearance then you want people listening to your words, not distracting jurors or the judge. Unless you want to lose, of course.

And if you are there to support a family member then you don’t want to do something that makes the jury think poorly of your family member. If you dress in the church clothes, you can’t go wrong.
Another view: Lawyer Fashionista: Haute Bronx (Greenfield):

Judge Dawson’s expectation that defendants consider the fact that they are going to court when they select their attire in the morning hardly strikes me as much of a stretch. Even in the Bronx, consideration of the day’s events should guide one’s choices. However, when one’s Sunday Best on the Concourse is either the best they can do, or a casual reflection of a cultural distinction, perhaps it would be wise to spend less time concerned with the questionable merit of halter tops or droopy pantaloons and appreciate the fact that the defendants have appeared as required by law, turned off their cellphones so as to avoid disruption and kept their hands to their sides.

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