June 2nd, 2016

A Lawyers’ Listserv Gets SCOTUS Recognition

RogueList

Sign inside the Supreme Court on Tuesday.

It came as a shock to everyone in our informal listserv group that was sworn in on Tuesday to the Supreme Court bar.

When we entered the building, we were asked what group we were from. Ummm, each of us stuttered, a group of trial lawyers from New York organized by Jay Breakstone?

“You guys the Rogues?”

Holy shit! The SCOTUS marshals and clerks knew the jokey name of our informal listserv!? No way!

We were at first startled and flabbergasted, then astounded and amazed. Our little group of 28 New York personal injury lawyers, plaintiffs-side only, walked up the interior stairs of the Court, following those clerks and marshals, who all knew we were “the Rogues,” pointing us in the right direction.

Rogue was the nickname bequeathed upon us 15 years ago, as local legend goes, when we banded together outside the confines and restrictions of any official bar association. A member of the “official” bar association listserv called us rogues for doing our own thing, and as one friend notes, “We took it and ran with it.”

The vast majority of us were solo and small firm practitioners, who simply recognized a need to share information as we litigated against significantly more powerful interests. If we were truly independent we could talk about any issue, and this was a win-win for all participants.

Mostly, this is the type of information that any hyper-local group of niche practitioners would want to share:  Can you believe that decision yesterday in Rogue v. Carrier? What are the skills and temperament of opposing counsel? Does anyone have information on Jane Expert?  Does Judge Jones skew toward the defense? And for god’s sake, it’s “Leave the gun, take the cannoli,” not the other way around.

In my first job out of law school, finding and sharing information wasn’t really an issue. Like most folks at medium or large firms I could just poke my head into someone else’s office, or chat at lunch, about a particular issue. Not so, however, for the solo practitioner.

Over the last 200+ years, lawyers have shared information outside their firms in a variety of informal and formal ways — perhaps at taverns over our first hundred years as a nation, and at formal bar association meetings and dead-tree publications over the second hundred.

And now as we soar through our third hundred years, we quickly share things electronically. The more knowledge we have, the better we can help our clients. Previously this information passed slowly, and now it passes instantaneously.

Such listservs exist all over the country, and likely all over the world. And while the existence of such listservs isn’t exactly a secret, the contents of the communications obviously are. If a lawyer wanted to share tips on opposing counsel Leo Drummond, for example, it might be helpful if Drummond didn’t know.

I first wrote about my particular group in 2008, in The Million Dollar Listserv, when knowledge of a change in the law was discussed and I was able to race to the courthouse to beat a filing deadline as a result — to the huge benefit of my client. The next time my group met at a big, informal dinner, I bought the first round of drinks. It was my way of showing appreciation to an extraordinary group of people who were helping each other.

Over time, our group met up both at continuing informal dinners as well as at formal lawyer functions, and we put faces and personalities to the names that were attached to our digital messages. The growth of the group then led to shout-outs at some of those bar functions. But the public discussion of actual details was, and remains today, absolutely verboten.

Many judges soon came to realize that this underground group existed, despite the lack of any address, phone, fees, formal publications or legal standing of any kind.

This change in how legal knowledge is shared was in full effect Tuesday in the Supreme Court of the United States as we saw the name of our informal listserv adorning the conference room door.

But wait. There’s more.

Because we eventually marched in to the courtroom for the motion to be admitted to the bar. Breakstone was called to the lectern. And Chief Justice John Roberts specifically spoke the name of our private little listserv in open court. From his perch on the highest bench in the land.

It’s kinda amazing to see a private listserv mentioned not just in open court, but being mentioned in this particular court.

When Justice Ruth Bader Ginsburg met with us afterward, her first question had to do with the Rogue list name. And Breakstone explained, on behalf of the group, of the need for small practitioners to band together to help level the playing field with the sharing of information.

There isn’t anybody that could have conceived, 15 years ago when the listserv was started via email exchanges, that this would have happened. But it did.

I attribute this to a confluence of events, including not just the advancement of technology but the recognition that all of us can benefit from additional knowledge when trying to represent a client. There is a need to share, there is a technology to do it, and the two met up quite nicely.

Ironically, court-watcher Dahlia Lithwick wrote in Slate yesterday about Tuesday’s proceedings. From her vantage point in the press gallery the day was a yawner, with the judges appearing bored out of their minds. She wrote in her lede:

Sitting in the press section at the Supreme Court this spring is a lot like sitting on the bridge of the Starship Enterprise when Captain Kirk has been forced to downgrade life support to minimum. Lights seem to flicker gently. Dazed reporters drift down the halls like tumbleweeds. On Tuesday, Justice Samuel Alito didn’t even show up for opinion announcements.

It’s funny how the same day and same events look vastly different when viewed through different prisms. She sees boredom while I see a centurial change in the way that lawyers acquire and share information.

It isn’t enough at this point, to simply tip my hat to my fellow Rogues. What is important, I think, is that each practitioner, especially the small firms in  niche areas, find (or create) that band of brothers and sisters to share your mutual knowledge and experience.

You never know where that need to share information may lead.

 

February 12th, 2016

Time is On My Side

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

Yesterday, I listened to a livestream of a suicidal and paranoid member of the Bundy gang surrender in Oregon. He said he was holding a gun to his head as supporters frantically tried to reason with him as he stumbled through a slew of conspiracy theories.

Think about that —  I’m in New York City listening in on a phone call with an armed and suicidal insurrectionist in a remote part of Oregon. What would Benjamin Franklin think? How long would it take for him just to comprehend such a concept?

What a short, strange trip this whole Internet thingy has been.

I first connected via Prodigy, circa 1992. When AOL took the world by storm with its proprietary site in 1993, I was 33. Using their instant messages, you could talk with someone from Prague, in real time, as if that person was sitting in your own building. It was amazing. Revolutionary.

I knew this was going to be huge when hourly charges for dial-up service went to unlimited in 1994, and the site was so overwhelmed that folks couldn’t connect. I still have an AOL 2.0 floppy disk. I use it as a drink coaster.

The World Wide Web followed shortly thereafter.

A huge milestone in its development was the 1998 release to the web by Ken Starr that dealt, in part, with the infamous cigar that Pres. Bill Clinton shared with Monica Lewinsky. I, and countless others, read it online immediately after its release. There was no need to wait a day for the newspapers to print it and distribute it for people to start having intense discussions.

Any semblance of the 24-hour news cycle that Ted Turner‘s CNN and its progeny hadn’t already taken down, was now gone for good.

My first crude website went up in 1999, and this blog followed in 2006. YouTube, Facebook, Instagram, Twitter, Snapchat and more all followed. Again, what would Ben Franklin think?

When I felt my midtown Manhattan building rumble in 2011 as I was sitting at my desk, I turned to Twitter, searched #earthquake, and knew within 30 seconds of the end of the quake that it had been felt from Georgia to Canada. Amazing.

We no longer wait, it seems, for anything.

Except for the law.

Much of what I do, I do the old fashioned way. It is slow and sometimes ponderous. It is the nature of litigation and trial. The world may move ever faster and faster with the explosion of technology, but the pace of the practice of law doesn’t really change.

There might be tinkering around the edges, but fundamentally it is the same today as when I started. Sure, I no longer need to bring a roll of quarters with me to the courthouse while on trial, I can electronically file complaints and motions, and I can bring my entire file to court with me on an iPad. That’s nice; it’s convenient.  Of course, as Keith Lee wrote yesterday at Above the Law, technology is just a tool.

But while the expectations of jurors may change — something that law and order TV shows also contribute to — the reality is that the lawyer’s work hasn’t.

You still have to tell the story. And to do that you need to find the witnesses, do the investigations and plow through the records. You need to lay foundations for evidence, build your examinations upon important points, and know what it is you need to do, and where it is you need to go.

There may be a straight line that gets you from Point A to Point B, but just as often it is otherwise, rambling around from here to there to get to where you want to go.

Telling that story usually takes time. Time that jurors, especially younger ones, may not be attuned to.

What to do about this internal conflict between today’s expectations and old-fashioned lawyering? Relish the concept when you finally get to meet your jurors. Welcome them back to another era, and another pace, when things moved slower. If you want to get the job done. (Because you have no other choice.)

Back in September, 2007,  I used an obscure quote by Mark Twain to describe the process of slowly telling the story.  Given Twain’s mastery of storytelling, I figured he would be a good source.

And so, as the world races faster and faster in making raw information available, we turn back to Twain on the art and flow of storytelling:

Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.

That difference in the expectations of people also came into sharp view in the Oregon standoff, where I started this piece. There were some folks who wanted the buildings that the Bundy gang took over to be immediately stormed. Now! Now! Quicker! Faster!

The Department of Justice, however, took its sweet time. Because time was on its side. And it was a highly successful strategy.

Sometimes we need to move fast. But not always, and fast should not be the default. No matter what kind of technology comes spinning our way.

OK, cue up some Stones to close — though lord only knows what Ben Franklin would think of Mick:

 

 

 

February 27th, 2014

The Old and the New (Gold Coins and Bitcoins)

Bitcoin

Since bitcoins are virtual, this coin doesn’t really exist other than as a cute token.

There’s been no shortage of stories over the past 10 years about information technology and the law, and how new toys and gadgets will change the face of it all. This is easier, that is easier, blah, blah blah.

Missing from those “tech is great” stories is this little nugget: Sometimes there’s nothing wrong with the old ways.

Two stories this week bring that concept into sharp focus. The first is the implosion of  Mt. Gox, the the world’s largest exchange for trading bitcoins, a virtual currency that is backed up only, it seems, by the willingness of others to believe in it. 750,000 bitcoins have gone missing worth, on a good day, about $300M. Why anyone would be surprised that an unregulated digital “currency” backed up only by faith might have problems is beyond me.

Because hacking and digital theft don’t really exist, I guess.

SaddleRidgeHoard_1393373440235_3148310_ver1.0_320_240

These coins, on there other hand, are 120+ years old and have real value.

And the second story is the discovery by a California couple of eight cans holding 1,400 gold coins in mint condition. Preliminary estimates put the find at about $10M. The newest of the coins are 120 years old, minted in 1894. Gold coins have been used as currency for thousands of years.

Bitcoins and gold coins. A very interesting pairing of stories.

The newest tech gadgets might, in fact, make some lawyering easier. You can bring your whole file to court, to the house or elsewhere on an iPad. That certainly can be convenient, and also serve to make sure you are now working 24/7.

But proceed with caution. Just because a technology is new doesn’t mean it is better.

 

August 18th, 2008

The Million Dollar Listserv (Updated)

The listserv may be the single greatest tool the solo or small practice lawyer has. And this post explains why.

This is also a story about some of the best lawyering I ever did, and its connection to a listserv. While I suspect that the lesson may be old hat to many readers — since you are obviously already connected or you wouldn’t have found this blog — I’m going to spill forth anyway on the odd chance you do not already belong to a listserv, or that this gets passed by a friend to at least one less-than-connected attorney.

The story involves the case I just blogged about in June that went to verdict. But if you think I’m going to brag about a brilliant legal argument or devastating cross-examination tip that I picked up and used, don’t worry. It isn’t about that.

Rather, it’s about how a good listserv can spill forth a spectacular amount of small nuggets of information, any one of which can help turn a case. In the one I just tried, I had been alerted to an imminent change in the law. That change turned a 100K case into a seven figure case.

By way of background to appreciate this, you have to know that the car accident that injured my client occurred in July 2005, and that the car that did the damage was a leased vehicle. The Graves Amendment was then passed by Congress just three weeks after the accident. And that amendment destroyed the vicarious liability that existed in New York that held leasing companies responsible when their drivers caused accidents.

Within days of being retained by my client, and while she was still institutionalized in rehab, I learned through a listserv that a House-Senate conference had agreed to this amendment that would eviscerate her rights to recover for her injuries. I learned of the legislation just one day before I was to go on vacation, and I had no idea when President Bush would sign it. So I typed up a Complaint at home and rushed it into the courthouse the next day for filing, beating the presidential signature.

I’d like to tell you the best lawyering I ever did had something to do with one of my trials with fancy openings or summations, a great bit of research finding an obscure case or a brilliant legal argument. Or perhaps a story of an argument from the Second Circuit or New York’s First or Second Appellate Departments.

But instead, the blunt reality is that the simple participation in a listserv alerted me to the passage of damaging legislation. Being connected kept me up to date. Being connected got my client to the courthouse door in time. There was another person injured in this accident, by the way, and his lawyer didn’t file in time. I never asked, but I think it is safe to assume he was not connected to people who were discussing the latest of legal events.

So the utterly simple and routine act of typing up a standard personal injury complaint and getting it filed right away turned out to be one of the best things I’ve ever done for a client. Without it she would have been stuck with the insurance policy limits of the two cars involved, 25K and 100K. Instead, she was able to proceed against the owner/lessor for injuries that clearly exceeded those minimal policies, for an ultimate recovery that exceeds those numbers by seven figures.

And so if you are not connected to such a group in your geographic area, or at least your practice area, then find one. Or create one. This is all the more important for the legions of solo and small firm practitioners, giving you not only the opportunity to swap the latest in news, but the latest in court rules, judicial temperaments and local gossip that just might one day mean all the world to your client.

The constitutionality of the amendment, by the way, is currently on appeal.

Update: Just one day after posting this, the Graves Amedment Was Upheld by the 11th Circuit Court of Appeals