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:


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.

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.

Labels: Blogging

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."

Labels: tort reform

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.

Labels: Attorney Ethics, Marketing

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)

Labels: Interesting Cases in the News, Medical Malpractice

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 2008 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.]

Labels: Marketing

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.

Labels: Media Appearances

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.

Labels: Random Notes

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.

Labels: Politics

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.

Labels: Blogging

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.

Labels: Random Notes

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)
  

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

Labels: First Amendment

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)

Labels: Odds and Ends