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

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

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

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

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

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

Labels: Odds and Ends

On the front page of the New York Times today is a story on Skadden giving lawyers a year off if they want it, and they still pick up 1/3 of their pay. For the lawyer they profiled, that meant $80,000 to go have a good time. (see: $80,000 for a Year Off? She'll Take It!)

Now some folks may balk at leaving the working world for a year, afraid of what might await them when they return. Since I happen to have taken a year off back in '88-'89 to travel (see: It was 20 Years Ago Today...), I've got something to say on the subject. And a little advice.

Do it!!!!!!!!

And, unlike the subject of the Times piece, who wonders about the do-gooder legal projects she can engage in in other parts of the world during her year away, actually working is not part of the requirement.

If there is no spouse, kids or mortgage that you need to worry about -- no keys that you need to take with you -- it is a once-in-a-lifetime opportunity to see and experience things that you will never get a chance to see and experience again. When you don't have to worry about the clock or calendar ticking, you get a chance to linger and look in ways you otherwise could not.

All you need are a passport, imagination and money. And Skadden is providing the money.

Labels: Odds and Ends

It's enough to make you vomit. The proliferation of marketers who will do anything in the spirit of Internet marketing.

So late last night a plane crashes in Montana killing 17 14 people. Horrible by any standard.

I Googled "Montana Plane Crash" as part of my continuing look at lawyers and marketing on the web and found a Google Adword link that looks like this (pdf version/MontanaPlaneCrashSearch.pdf):

Montana Plane Crash
Who's fault is it? Give us your
opinion and get an iPhone
www.nkthen.biz/Survey/polls

There are 17 dead people and grieving families and someone is running a contest to win an iPhone? Please, say it ain't so. I click and go to the website (/MontanaPlaneCrashiPhone.pdf):

MONTANA PLANE CRASH
Montana plane crash kills 17, including children

Montana Plane Crash - Who is at Fault?
Tell Us What You Think
and win an iPhone!

The Pilot and Crew! It is just an Accident!

So I went to the home page for the domain (http://www.nkthen.biz/), and found it to be pitching Internet marketing services like this (/JosephThenWebMarketing.pdf):

Discover How You Can Generate
An Avalanche of Traffic to Your Website in Just 3 Weeks!

Established Internet Marketer Spills Out Everything in Traffic Generation and How YOU can Get the Traffic you Want!

The author of the book and owner of the site is Joseph Then.

So thank you Joe, for your invaluable contributions to society. The bereaved will no doubt be grateful to you.

Labels: Odds and Ends

Oprah is big. I know this because my media maven wife tells me so. She has, like, a jillion fans and even more money. I've never actually seen her strut her stuff on her show, but a jillion fans (and even more money) can't really be wrong, can they?

So I was flattered when Harpo Productions, Oprah's production company, contacted me. It seems that one of her regular segments is with a Dr. Mehmet Oz, and he wanted to do a piece on medical mistakes.

So enter stage right, me. Well, not exactly me, and if you've seen me on TV you'd know why. No, they wanted to use some of the images from my website for the show. I have a series of x-rays in my office that show various bits of surgical equipment left behind after surgery.

And by golly those kind of images would look nice on a show about medical mistakes since TV is, after all, a visual medium. And they wanted to use my images.

Of course! I said. And who wouldn't? And even though Oprah has said jillion dollars, I volunteered that I didn't want any of it for the use of the x-rays. A simple thank you would be nice. I would help with what was likely to be a valuable piece for a big audience and all would be right with the world.

But Oprah had a problem, it seems, with the "thank you" part. Or at least her legal team did. I asked that my firm receive proper credit for the use of the images so others would know their source, and if the segment or films appeared on the web, a link back to the my site where the films were found.

No sirree, they said. No link. No link? I've dished out, and received, more than I can count. They told me it was "standard" not to link. That, of course, is complete nonsense, as you can see from sites such as the Wall Street Journal and the New York Times, among others. Oprah offered up an "end credit," those scrolly things that roll by at the end that no one ever sees, or on web versions an unlinked url.

OK, I said not wanting to be too much of a pain, because while the link was nice it really wasn't that big a deal to me. It would still be fun to write about being kinda, sorta, almost on Oprah. My x-rays would have their 15 nano-seconds of fame and I know that they would like that. And I would have helped Dr. Oz spread the word about real medical problems and mistakes and yada, yada, yada.

But even that seemed to be a problem for Oprah. Because part of the license agreement was this wonderful little bit that I'll summarize: We (Oprah) get to use your x-rays. And you (Turkewitz) get to surrender your First Amendment rights to discuss that fact. In other words, I get to pay them to use my material. Not with cash, but with good old fashioned rights. What a deal!

Here is the actual language, paragraph eight, from the license agreement that they wanted me to sign:

Licensor acknowledges and agrees that it shall not and cannot use Harpo's name or logos or Ms. Winfrey's name, voice, picture or likeness for any advertising or promotional purposes without first obtaining the written permission of Harpo relating to the Material. Specifically, Licensor agrees not to use Harpo's name or trademarks, Ms. Winfrey's name or likeness, or a quote from Ms. Winfrey or the Program on Licensor's website, in any Licensor-related publication, in connection with the marketing or advertising of Licensor or in connection with any book, blog, or other publication, product or service (including digital transmissions such as the internet or other on-line computer communication services) relating to Licensor. Further, Licensor hereby agrees not to use the phrase "As seen on Oprah", or similar statements, in any promotional or advertising material it creates or on its website.

OK, so they want to use my stuff and they don't want me to talk about it or even mention Oprah's holy name or use her image.

But there was one last avenue to explore -- because after all, this would have been fun -- and that last avenue was the part about obtaining written permission. So I told them I had every intention of blogging about it. Great! They said, what did you want to write? Umm, since the show hasn't aired, how could I possibly know? Does Oprah review a book that she hasn't yet read?

And that, my friends, was the end of that. Over several weeks and a couple dozen emails with three different people from Harpo working on this little project, they successfully overlawyered the issue to death. I know what you're thinking, her career will probably hit the skids as a result.

Now I don't mind being played for a fool, but that's only if the foolster happens to be my offspring, and I'm even willing to bend that rule if the foolster is merely a friend of the offspring. I'm game to ask why the chicken and all manner of other critters crossed the road, and to laugh at assorted knock, knock jokes, though I generally draw the line at the 9th iteration.

But I don't really care to be played for a fool by Oprah, no matter how big a shot she may be.

The licensing agreement, never signed, is here: /Oprah-Harpo.pdf

Labels: Odds and Ends

When I saw that quote at PrawfsBlawg I couldn't believe it was real. But there it was staring at me in all its bizarre glory from prof Eric Johnson (via ABAJournal):

"Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners."

I haven't visited the issue of BigLaw salaries in awhile. After all, with associates being laid off by the thousands it didn't seem right to rub it in. What they need are tips on interviewing or resume writing, and here is a law professor stating that they should unionize to demand more?

Two years ago I noted that starting associates were starting at $160,000, plus giant bonuses, and lots of holiday swag, and then went on to $180K, and were thus clobbering the salaries of New York state judges who remained stuck at $136K and federal judges who were getting $162K (without a juicy bonus). (And last year former Chief Judge Judith Kaye finally brought a lawsuit over the fact that NY judges were actually going backwards, since they don't even get a cost of living increase.)

And starting associates, of course, can't even do much. The first year of practicing law might as well be called an apprenticeship. Who would trust a first year with any real project for a big corporate client unless there was significant (read "time-intensive") oversight? Pretty much the same is true for many second years. How many first or second year "litigators," for example, are trusted to take the deposition of anyone higher than a mail clerk?

Back in December 2007 Scott Greenfield wrote:

First year associates are near useless as lawyers. They are incapable of producing useful legal work, and at best churn out wasteful hours of memos stating the obvious at great length in order to produce the requisite number of hours. Sure, they think they're doing a bang-up job, but that's only because they have no clue of the utility of their efforts.

Still, somebody is paying for this time. Hour by hour, there is a client being billed somewhere for some kid to carry a briefcase around the hallway. It must be just fine with Biglaw clients to pay some top partner $1000+ an hour on top of a posse of kids following her around, nipping at her heels, fetching coffee and taking notes, so that every hour of actual legal work ends up costing the Biglaw clients $3,750.

BigLaw was getting the BigBucks because General Counsels figured no one would ever blame them for losing a case if they paid top dollar.

And what happened to BigLaw with the oodles of money and perks they were throwing around? A big-time contraction. Their clients, it seems, decided that in a Great Recession it might be wise to watch the bottom line, and shelling out piles of dough to BigLaw so they could bill out young associates at ridiculous hourly rates no longer seemed like such a hot idea.

And Johnson thinks they are underpaid? If by underpaid he meant outrageously overpaid, he might have a point, though that point is likely lost on those lining up for unemployment. I'm guessing there aren't too many judges, for example, who would think a first year associate that still has his or her job at BigLaw is underpaid. Nor any of the millions in jeopardy of losing homes to foreclosure. Does there exist some constitutional right to be paid $200+K per year while still being carried in a Snugli?

BigLaw, it seems, had overpaid its associates in a big, bad way while those firms suckled at the beautiful towers of corporate giants. But now reality is setting in, the teat's been covered, and associates are being told in 50 different ways to leave. If they were underpaid, why are so many desperate to hold on to those positions?

It would be a fairly safe theory to say that one reason for the massive contraction in BigLaw today is that they had overpaid for the legal talent they hired and were too late to realize it. Many of us -- the practitioners of law as opposed to the ivory towerists -- had already known that. It sure is an odd time to suggest to BigLaw associates terrified of discharge that this would be a good time to put the screws to the boss and demand more money.

The safe cocoon of academia must feel very nice. End rant.

Update! OK, that rant felt good. But I just noticed that the bit was written in February 2008, not 2009. D'oh! Nevertheless, the fact remains that BigLaw associates aren't exactly an exploited class working under treacherous conditions, though I suppose heart disease from long stressful hours and and take-out food could be a dangerous workplace environment. Of course, they'd get that anyway if they hung their own shingles.

Labels: Odds and Ends

My household now has a second blogger, as Mrs. NYPILB stakes out her own small corner of the interwebs. Her subject? Both the traditional and digital media industry that she worked in as an executive for over 10 years, and where she has been head-hunting (a/k/a recruiting) and resume writing for many more.

While her business may be media, out-of-work lawyers take note: Interview techniques and resume writing styles cross boundaries. So here are a couple of worthy posts from her nascent site, Let's Talk Turkey Media Blog, for the BigLaw associate who just hit the unemployment line:

Some Interview Doozies and Don't-zies (8 Interview Tips) (2/27/09)

Labels: Odds and Ends

A big Happy Mother's Day to Mrs. NYPILB. Yes, I know what you're thinking; this isn't the day that Hallmark and the florists have decided should be a generic, randomly selected, Mother's Day.

No, this day is more important. It's the day she did a lot of hard work to bring our first into the world. (Happy Birthday, Sweet Pea!)

Why people insist on using the Hallmark day is beyond me, when actual birth days are vastly more significant.

For Mother's Day Mrs. NYPILB got a few chocolate-dipped strawberries I made this morning, while the kid got the party over the weekend. Perhaps the Mrs. could have done better than a few strawberries, but she married me.

Labels: Odds and Ends

The question came to me from my brother via email, and I confess not to know the answer. But the question sure is intriguing.

Yankee superstar Alex Rodriguez admitted today that he used steroids in 2001-2003 while playing for the Texas Rangers. In one of those years, 2003 he took the MVP title. He said at the time:

"It means the world to me...I'm so proud. It really is a validation to all the hard work and dedication."

Right. Validation for hard work. OK. Moving on to the ramifications.

Those titles usually carry big, fat bonuses with them. A-Roid picked up a $500,000 bonus after he won the award getting six first place votes from the Baseball Writers Association, which decides such titles, among his 240-vote total. And in second place was Carlos Delgado with five first place votes among his 190-vote total. I think it's fair to say that A-Roid would not have received those votes if the writers knew he was getting a little chemical help.

Delgado, it seems, has a very credible claim he was cheated out of the MVP award which, depending on the nature of his contract, could have been worth a small fortune for the win. But it's not just bonus money at stake; he probably would have received larger future contracts. There's a lot of money in being #1.

So can Delgado bring a successful suit? Anyone with an answer?

Some sites covering the story:

• What To Make Of A-Rod's Admission That He Used Steroids (Fan IQ Blog)

  Well, rather then take the long, lawsuit-infested road to eventual full discovery that he did in fact use steroids, Alex Rodriguez today just decided to openly admit he used PEDs for three years as a Texas Ranger. And thankfully he didn't say that he accidentally "ingested" something.

• A-Rod's Confession Is Solid Move (MLB Fanhouse)

  But regardless of the forthcoming repercussions -- and there will be plenty -- A-Rod's confession on national television will go down in history as a well orchestrated public relations move. I'm serious.

• How do you punish A-Rod? (Dallas Morning News)

  How do you do anything to admitted steroid user Alex Rodriguez? It's no wonder he came clean. There is absolutely nothing that Major League Baseball will do.

• ARoid: Alex Rodriguez Confesses to Steroid Use but Leak of 2003 Test May Have Been Criminal (Findlaw)

  Over the weekend, New York Yankees third baseman Alex Rodriguez was identified as having tested positive for steroid use in 2003. Today, he admitted to using performance enhancing drugs from 2001 to 2003. While the highest paid player in baseball history may suffer permanent damage to his legacy, the leak of his positive test in 2003 may have been a crime.

• Playing Defense Against A-Rod's Incomplete Contract (Dan Hoffman @ Concurring Opinions)

  Sometimes it's tough to find a legal angle on the latest micro-scandal. Not so with the revelations that the hated Yankee slugger Alex Rodriguez tested positive for steroids in 2003.

• MLB Great Debates: Is Alex Rodriguez's Admitted Use of Steroids a Big Deal? (MLB Outsider)

  Fans seem to feel that cheating somehow belittles the accomplishments of past greats whose numbers no longer hold up. But when exactly did cheating in baseball start?

• Alex Rodriguez admits to using steroids: Slugger injects truth, says it was 'very stupid' (Phil Rogers @ Chicago Tribune)

  Rodriguez does not appear to face any MLB sanctions or federal prosecution for steroids. Prosecutors might press him to reveal the source of his drugs; they have gone after distributors more than users.

  
  

Labels: Odds and Ends

Ever wonder where shows like The People's Court find their subjects? Well, the answer is here: They troll through small claims court looking for filings. (OK, you can learn that at Wikipedia, but stay with me on this one.)

I brought suit a few weeks ago in small claims court, only the 2nd time I've needed to do that in 20 years of solo practice. I paid an expert money for a review, and he never did the review. He didn't say yes to my case, he didn't say no, he simply put the retainer in his pocket, the records some where else, and then ignored me when I called to find out what was going on.

So I finally got his attention with a suit. (If I have to do this only once very 10 years, then I'll count myself lucky.)

Enter, stage right in today's mail, a letter from The People's Court asking if the two sides would like to have Judge Marilyn Milian arbitrate our case. Lawyer v. Expert.

What do we get if we agree?

1. If I win then they guarantee payment, meaning I wouldn't have to go through any collection proceedings to satisfy a judgment.

2. If I lose, they still pay me $250 for my time.

3. No waiting time in real court, as they set up a real date and time; and

4. Travel expenses.

What they don't guarantee is that anyone appearing on such a show will be free of gratuitous humiliation that any judge wishes to dish out. Now I don't know if that is the style of the show as I haven't seen it, but if a show isn't entertaining then the ratings go kaflooie and it drops off the air. And, frankly, I don't feel like being anyone's entertainment unless they are under the age of 10 and share my last name.

Why would any rationale person subject themselves to a TV court? It's not something I can figure out.

Thanks, but I'll pass. And besides, if it isn't with Judge Wapner it doesn't count.

Labels: Odds and Ends

I'm irritated. The web site claims that orders "are usually shipped the same day." But it took them five days to ship mine. Since this is ink for my printer, that matters.

Over the last 20 years I have done everything as an attorney from answering the phones and filing papers, to taking verdicts and arguing appeals. I've also taken care of my office equipment, which inclues the utterly mundane act of ordering ink.

InkJet Superstore has ink. So I ordered it. But when I got an email five days after placing the order that it had just shipped, I was steamed.


I tried to call, but the customer service number was no longer working.
I tried to email, but there was no email address on the site.
I tried "live chat" and got a human, claiming to be named "Jane." Ah ha! So let's see what happened to my ink:


info: Please wait for a site operator to respond.
info: You are now chatting with 'Jane'

Jane: Hi! How can I help you?
you: I ordered my stuff 5 days ago. Why did it take 5 days to ship?
Jane: I do apologise for that delay. Could you tell me your order number so I cna look it up?
you: 683089
Jane: And what is your name please?
you: Eric Turkewitz
Jane: We experienced a severe delay during the weeks from Dec. 29 to January 10th, this is why your order shipped fiveive days later. I apologise for this inconvenience.
you: Your website says:
you: Orders placed before 3pm PST are usually shipped the same day. (Monday - Friday).
you: I tried to call, by the way, and the customer service number on the website has been disconnected.
Jane: Yes, but as I said, we went thourgh a very big, unforseen, delay. Which is why we couldn't ship a lot of orders within due time.
Jane: Our phone system is down at the moment, we're trying to solve it.
you: What was the delay?
Jane: We had our anual inventory recount opnthe last week of December, which resulted in a huge delay of orders from that week and the week after it
you: If this was an annual recount, why was it "unforeseen?"
Jane: Because we don't prevent how many orders we will have delayed
you: ??? (That didn't seem to make sense)
Jane: The delayed was expected, but we didn't know it was going to be such a delay. Is there anything else you need us to do for you???
you: If you knew there was a big delay, why didn't you at least send the stuff to me by next day delivery instead of ground service?
Jane: I'm sorry for the inconveniece, but we weren't able to do that at the time.
you: That's not a very good answer to an unhappy customer
Jane: I apologise for this problem I really understand your situation.
you: Saying you have delays due to an annual recount and apologizing for me not sending me the stuff pronto, doesn't really answer any question that I had
you: Your site says 100% satisfaction guaranteed. As you might guess, I am not satisfied
Jane: What you can do, if you wish, is return the items for a full refund, when you receive them.
you: Where were these goods shipped from?
Jane: Form Bell, CA, 90201
you: Great, so it will take another 5 days to reach New York?
Jane: Yes.
you: Will you be letting your boss know that s/he has lost the business of a customer, not just because of the initial delay, but because the company then caused further delay by shipping it via ground?
Jane: I will. We always report this issued to our boss. I'm sorry for this inconvenience.
you: By the way, you said you couldn't ship the stuff to me via air after the delay. Why not?
Jane: We can't change the shipping method a package once the order is shipped.
you: But it only shipped today. You knew many days ago you were having long delays. So why wasn't it switched before it was sent?
you: I mean, really, is that any way to treat customers? To make them bear the brunt of your delays?
Jane: This was an unusual situation, I'm so sorry about this.
you: You've already apologized. I'm not looking for another one. I want to know why steps weren't taken to immediately rectify the foul-up. Because if the company can't rectify foul-ups in such a simple manner, there seems to be little reason to trust the company in the future.
you: Hello?
info: Your chat transcript will be sent to [xxxx [at]Turkewitzlaw[dot]com] at the end of your chat.

So there you have it. Delays by the company, and the hope that lots of "I'm sorries" will somehow make the goods appear at my office quicker. I never did get a decent answer as to why an annual recount was unforeseen or why the company didn't ship delayed items by air to make sure the customers got their goods with as little delay as possible.

OK, you've each been warned about this company.

Labels: Odds and Ends

Avvo, the lawyer rating service, says it has "no concern" over a convicted New York sex offender, whose license was suspended last week. Steven J. Lever, a former Kirkland & Ellis associate, was the subject of a sharply divided opinion from New York's Appellate Division, First Department, with a three judge majority suspending him for three years over the dissent of two others that sought to have him disbarred. The lawyer plead guilty in September 2005 to sex offense charges related to soliciting sex over the internet from what he believed to be a 13-year old girl. (See: Sex Offender Keeps Law License)

The Avvo opinion on Lever gives their definition of "no concern" as follows "We have not found any instances of professional misconduct for this lawyer." (Pdf version here: Avvo-Lever.pdf)

Avvo also says it has found "no misconduct" regarding the lawyer, with the definition of "no misconduct" being exactly the same as "no concern:"

"We have not found any instances of professional misconduct for this lawyer."

Avvo has been oft criticized for its ratings because the subjective nature of lawyering isn't truly amendable to any rating system. Avvo had contended that, while the subjective part was difficult, the objective part of rating attorneys by looking for misconduct actions was something it could do.

While I wouldn't expect last week's disciplinary decision to be reported in just one week, the actual criminal action against him was resolved three years ago. And Avvo missed it. (There are also zero comments by others on the Avvo site related to this lawyer.) If it is Avvo's policy not to research crimes committed by attorneys (and I'm guessing that based on the fact that they didn't report this sex crime conviction), then even its limited value of analyzing objective data is a failure.

Avvo thus apparently fails not only with the subjective rating system, which defies quantitative analysis, but also with the limited objective analysis of data that it aspires to. Because if you don't find the data, the analysis isn't worth squat. Garbage in, garbage out.

See also on Avvo:

• Avvo: My chat with Paul (Simple Justice, 6/27/07)
• Avvo Responds to Lawsuit and Critics (WSJ Law Blog, 6/29/07)
• Avvo Rating System: Thanks, But I'll Pass (3/2/08)
• Why AVVO Will Hurt Lawyers (Build a Solo Practice, 1/7/09), with more links at Lawyer Rating System Endorsed by WSJ - Does This Make You Feel Better? (12/27/07)
  

And previously regarding Lever:

• Just How Much Moral Turpitude is Too Much? (Simple Justice)
• Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years (NYLJ)
• A Tale of Two Lawyers (Maryland Injury Law Blog)
• Lawyer Who Sought Sex with 13-Year-Old Suspended (Village Voice)
  

Labels: Odds and Ends

I didn't want to get down in the muck and politic for votes in the ABA Blawg 100 vanity contest, but the China Law Blog has apparently been stuffing the ballot box in the "regional" category that we're both in. And L.A. Legal Pad is right there in the mix.

I know that personal injury law fans won't let this outrage stand, me being in second place and all that, but if you were on the fence as to who to vote for, or how many times to vote, then here are the Top 10 Reasons To Vote For the NY PI Law Blog.

(The South Florida Lawyers Blog and the Texas-based Tex Parte Blog are also nominated in the regional category, but either they haven't figured out how to stuff the ballot box, or inspire their readership, leaving them in the dust.)

10. I'm offering everyone world peace if I win. Plus a toaster. China Law Blog is offering everyone a half-eaten, food-poisoned, jelly donut, sent to you on a slow boat from you-know-where;

9. I heard that L.A. Legal Pad spent $150,000 for its wardrobe. Do you really want to support that kind of spending?

8. That's my dog Tucker. A vote for me is a vote for the puppy. Do you want to say no to that face?

7. Tucker can bark Alice's Restaurant. In four part harmony. With feeling;

6. I'm only 21% evil, far below the U.S. Chamber of Commerce's 65% evil limit for my kind;

5. Jewish lawyers in New York are rare. Please support the species;

4. Rumor has it the China Law Blog is employing child labor to vote, in clear violation of local employment and election laws;

3. New York has better Chinese food;

2. We got the Empire State Building; L.A. has smog. China has worse smog

And the #1 reason to vote for the NY PI Blog:

1. If you can't trust Paris for an unbiased opinion of law blogs, who can you trust?

You can vote at this link.


(Graphic credit: Dan Turkewitz)

Labels: Odds and Ends

Last year when the ABA put together their list of the top 100 law blogs, personal injury lawyers were noticeably absent. I was sharply critical of the ABA for ignoring this entire field of law. Part of my rant looked like this:

It's not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don't have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn't think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

This year, however, there are two included, mine and Drug and Device Law. Half of the "honorees" in last year's 100 are gone, replaced by 50 new ones.

Drug and Device, which discusses the field from the defense side and focuses on personal injury cases that tend toward having hundreds or thousands of claimants, is in the niche category that didn't exist last year. The ABA description is:

From the pharmaceutical and medical-device product liability litigation corner of the blogosphere, there's no beating this defense-oriented blog. Seasoned defense lawyers Jim Beck of Philadelphia and Mark Herrmann of Chicago, along with authoritative guest contributors, pick apart rulings and explore issues common to this niche practice.

Those guys have stiff competition when you see the niche category with 15 entrants -- tough competition because they want people to vote. No matter what happens, they come out smelling like a rose.

I, on the other hand, have thin competition with only five entrants in the regional category. My description looks like this:

Aside from thoughtful posts on New York tort law and insights into tort litigation in general, Eric Turkewitz also gets props for punking the blogosphere. On April 1 he posted a story contending that the U.S. Supreme Court granted cert in a fantasy baseball case -- and that fantasy-baseball-player Justices Stephen G. Breyer and Samuel A. Alito Jr. had recused themselves while Antonin Scalia and Ruth Bader Ginsburg, also players in this fantasy story, declined to do so.

Alas, in the early voting I am fighting for last, not first. That means that the small category is a curse and not a blessing if you're heading for the basement, as it sets me up for big-time abuse from others. Like my family. So please do me a favor in this utterly meaningless vanity contest, and throw me a vote so I don't come in last.

You can find the whole list here. And remember, it's all very subjective, both as to quality and category. Voting ends January 2nd.

Labels: Odds and Ends

Turkey time is always an interesting time around the Turkewitz household. Always has been and always will be given the easy play on the name.

But that won't stop us from throwing the football around tomorrow in our annual game, called...wait for it...The Turkey Bowl.

It's also a good time to remember that Ben Franklin wanted the wild turkey as the national bird, due to its courage. I suspect my childhood would have been a bit different this time of year if he had prevailed. He wrote in a letter to his daughter, comparing the turkey with the bald eagle:

For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.

But instead, we gobble them up this time of year, which might be good for us but not so good for the actual turkeys.

May the day be a happy and peaceful one for all. It's a good time to remember those who have less, and if you are reading this then you have a computer and that means there are billions of people who have less.

Labels: Odds and Ends

Shea Stadium is being demolished as we speak. A new stadium is ready to go for the New York Mets, with Citibank having bought the naming rights for 20 years for $20 million per year.

The new stadium's name, Citi Field, could be worse, of course, but that isn't the reason for this brief post. It seems two NYC councilmen don't think Citibank ought to have their name on a field given the Citi bailout and the fact that this naming nonsense is now being paid for with our tax dollars. And Citibank has no plans on pulling out of the deal.

Their councilmens' solution? Call it Citi/Taxpayer Field, which is of course a dumb name but makes a good point.

My own suggestion for a name -- since I don't really want my tax dollars to go for promoting Citibank by wasting it on a baseball field, and big corporations aren't likely to be stepping up to the plate with piles of money for naming rights any time soon -- is to name it for the one man who wore the uniforms of all four big league teams to play in New York: The immortal Casey Stengel. ("Good pitching will always stop good hitting, and vice versa.")

Citi Field should be out and Stengel Field should be in.

Unless, of course, someone out there has a better name?

Labels: Odds and Ends

So there I was reading the paper in court this morning and I saw this great story on the front page of the New York Times about the Santa Monica police busting people for exercising on the median of a popular roadway (Where the Traffic Median Is a No-Pilates Zone).

Why are the health nuts congregating there? From the Times:

The ocean view, the air and for some the architectural spectacle have transformed the area into a huge outdoor gym rimmed by multimillion-dollar homes.

And how much time and effort are being spent on this little project? Back to the Times:

Since the patrols began, the city has issued eight citations for the flouting of the median law -- the fine is $158 -- and has given warnings, which are generally heeded, to about 600 people a month.

Of course, not everyone feels like complying with the orders of the cops, no matter how many of them patrol the area, so that means legal challenges. And more costs.

Now the last time I checked, we had two wars going. Our economy is in the stinker. State governments from sea to shining sea are facing massive cutbacks due to a sudden drop in tax receipts.

And the the good folks out in Santa Monica are busting folks for acting healthy.

Labels: Odds and Ends

Right on the heels of Barney, the White House dog, biting biting Reuters reporter Jon Decker, we now find he may have the perfect defense lawyer.

Guide dog Skeeter Jones now has earned a law degree Juris Dogtor. I'll try to reach out to Barney, carefully, for an updated interview on the ramifications for the species, and of Skeeter defending him.

Meanwhile, while one wag thinks you'd be barking up the wrong tree if you hired Skeeter, the paw firm of Barker and Meowsky has already made him an offer.

What will become of Skeeter and Barney? Stay tuned.

Labels: Odds and Ends

You know this blogging is a funny thing. You really can publish whatever you want and have it seen almost anywhere in the world.

So I've now been quoted in India. That's right, India. I've traveled there, as you can see from the 20-year old picture at left. And had a great time in a wonderful country. But I can honestly tell you I never expected my little blog on personal injury law to pop up in one of their papers.

And the quote comes in an editorial, of all things, in the highly-regarded Economic Times of India. (I just made that highly-regarded thing up, I didn't actually know squat about it until I looked on Wikipedia and found it to be the second largest financial paper in the world.) The editorial dealt with my legal analysis of the gripping story of First Pooch Barney taking a bite out of Reuters reporter Jon Decker. Somehow, though, they missed Barney's own account of the incident.

And so as I close out my second year of blogging, I would like to welcome all those readers from India who have an interest in New York personal injury law. Both of you. And don't forget to add me to your RSS feed.

Labels: Odds and Ends

As readers know, presidential pooch Barney took a bite out of Reuters' reporter Jon Decker yesterday. The NYPILB caught up with the First Dog for this exclusive interview covering the incident, life in the White House, and the prospect of being sued:

NYPILB: Dog, what happened?

Barney: Please. It's Barney. Save your familiarities. I'm still in the White House, you know. I'm not some common mutt on the street.

NYPLIB: My apologies. Barney, what happened?

Barney: You think it's easy living in this prison? I snapped, OK?

NYPILB: Someone take away your doggie treats?

Barney: Oh sure, be a smartass. It's bad enough that The Master has been walking around caged up in here because McCain didn't want to see him and he's grumpy because people don't like him anymore. He says this place is worse than Gitmo. And I got these yahoos from the media crawling all over me with their cutchy, cutchy coo stuff like I'm a baby.

NYPILB: Don't you have protection from them?

Barney: I did until yesterday. My Sheppards have been reassigned to the incoming puppy. They gave me a fist bump and were gone.

NYPILB: Incoming puppy?

Barney: Yeah, word is the new dog in town is already being trained.

NYPILB: How does that make you feel?

Barney: Like biting.

NYPILB: I heard you've done this before.

Barney: I need to keep myself amused. We get these tourists coming through the Rose Garden, traipsing on my turf. Don't you humans have noses? I clearly marked it. You think Saddam was the only one to have active chemical weapons?

NYPILB: But he didn't.

Barney: They should have sent me over. I could have sniffed them out.

NYPILB: Are you worried about being sued?

Barney: In order to serve me with the papers, they have to catch me first. I'm small, but I can move when I have to. And besides, it would be a frivolous suit!

NYPILB: But Dog, you've bitten before. You've got what lawyers call a "vicious propensity."

Barney: What did I tell you about that? You think this is American Idol?

NYPILB: Sorry. Barney, you've bitten before.

Barney: Would it be OK if I water boarded them instead? And besides, I thought they were terrorists.

NYPILB: In the Rose Garden?

Barney: 9/11!!!

NYPILB: Huh?

Barney: Rudy Giuliani likes to visit me. He said that was a defense to everything.

NYPILB: And where is Rudy now? Preparing his inaugural address, is he?

Barney: Again with the sass mouth. Look, the guy was coming after me. He bent down and made a grab. Am I supposed to let every Tom, Dick and Harry stroke my fur? I don't think so! A dog's gotta defend himself. By now the whole world's seen the video. He's 6 feet tall, I'm 1'-4" on a good day. How can I reach his hand unless he's coming down after me?

NYPILB: Barney, first you said you bit Decker because you snapped. Then you said you bite to amuse yourself. Then terrorists and now self defense. What gives?

Barney: I have a constitutional right to self-defense!

NYPILB: Where does the constitution say that?

Barney: The Second Amendment.

NYPILB: That deals with arms. We're talking teeth.

Barney: Yeah, that's what you think. In District of Columbia v. Heller Justice Scalia wrote that "The inherent right of self-defense has been central to the Second Amendment right." Woof!

NYPILB: I didn't know you were a constitutional scholar. Does it trouble you that they just made that "inherent right" stuff up, and that it isn't part of the text?

Barney: You new to politics? Folks make stuff up all the time.

NYPILB: I notice that you didn't answer the question about the multiple and contradictory defenses that you have raised.

Barney: Well, I have a book in progress. Millie cashed in, so why can't I? My agent at William Morris is already working on the talk show and college campus circuits. I need to try out some lines to see what works.

NYPILB: Aren't you afraid folks will see these conflicting things in print?

Barney: Nah. Your audience is too small. OK, I gotta go. Literally. I suggest you get out of my way.

Labels: Odds and Ends

Yeah, you read that subject heading correctly. And no, I didn't make this story up. It comes from my correspondent in Argentina who came across this nugget in a local paper about plastic surgery implants as door prizes:

Three provincial governments are cracking down on local discoteques for giving out plastic surgeries -- more specifically "implantes de siliconas" -- as door prizes to teenagers who frequent their establishments. (Original source, in Spanish, La Razon)

(There is also more from my correspondent, aka my niece Julie, about health care plans giving one free plastic surgery per year.)

Think that can happen in the United States? Me neither. And why? Well, a multitude of reasons, including the potential liability aspects. And so, to my tort "reform" readers, let me say that fear of being sued is often a good thing. Because being held accountable tends to wake up the senses.

Labels: Odds and Ends, tort reform

Perhaps the most significant bit of advice I've given to other attorneys came up yesterday. It wasn't so much about lawyering though, as it was about law office management. It popped up in the New York Times story of NYS Assembly Leader Sheldon Silver and his investment in Counsel Financial, a funding company for personal injury attorneys.

The advice stems from the fact that this company even exists. Funding companies are, as some lawyers learn the hard way, the last resort of accessing capital to stay afloat until cases taken on contingency get disposed of. Double digit interest is the norm.

And the problem exists because those that need the funds have been turned down by their bank for a traditional line of credit with much lower interest rates. Why turned down? Probably because they are now on hard times. The very reason they need the money is the very reason for the bank rejection. Banks don't want to lend money to those in distress. They want to lend it to people who are flush; those that don't need it.

So my advice is simple. If things are going well, get your line of credit. Now. Don't wait until you need it. Because then you'll be stuck borrowing from the lender of last resort.

Labels: Odds and Ends

After our spirits were crushed when our little Ben & Jerry's birthday video was banned, I decided to follow up with an email for the reason. So here is the reason they gave us:

They claim their lawyers wouldn't approve it. I kid you not. Here is the direct quote from the email I received from their marketing department:

While we appreciated it internally (and we did), there is no way our legal team would have allowed that one to go through.

Now that would be totally nuts. Except that Totally Nuts is already in the Graveyard of dearly departed flavors, so it must be something else.

I also note that it doesn't appear to violate any actual contest rule. (Ben-Jerrys-VideoRules.pdf) So I followed up, wanting to know, did the lawyers really look at our video?

And the answer was, apparently not. It wasn't a lawyer that sent us into the freezer, but concerns that a lawyer might do so in the future. From email number two:

It would have had to pass by Legal in order to be considered a top ten finalist. I've worked here for ten years and I know it would not have passed.

Again, no rule violation. Just a concern that maybe there would be a lawyer without a sense of humor, because in a third email I was told it might have "inappropriate content."

Now Ben Cohen and Jerry Greenfield sold out in 2000 to Unilever, a massive conglomerate. We don't begrudge them the money they made from building the company and pursuing the Americone Dream. But it appears that what's good for the goose doesn't work for the gander, as our own dreams of fame and glory have been obliterated before our eyes.

If we were shot down by lawyers we could understand that. Sometimes it's the lawyers' job to be wet blankets. But the marketing department? What in the name of Cherry Garcia is going on here?

Marketing people are supposed to be the kind of folk who push the limits. Creative souls. Not fearful little bunnies, afraid of their own shadows. Let the lawyers be Vanilla. The marketing people should be Wavy Gravy mixed with Wild Maine Blueberry, willing to go the Full VerMonty served with Nutty Waffle Cone.

It's now clear that this contest is little more than a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham. If you're as upset at our family is you can whine, belly-ache and complain to benjerrybirthday@ugenmedia.com.

And does anyone know a good ice cream lawyer?

Labels: Odds and Ends

I hate to do this. I like Ben & Jerry's. The whole family does. We consider the boys extra brothers to the clan. If you cut us, we bleed Chocolate Fudge Brownie. Those are my folks to the right on one of our visits to the factory on a Vermont family vacation.

So when we made a little 30 second video for their 30th Birthday Video Contest, we expected it would be received with a sense of gratification, as it clearly demonstrates what the ice cream means to us. Not shock and awe, mind you, but at least a smile.

But alas, it was rejected. Rejected! Why? Due to "inappropriate material." Apparently, we shocked.

First, it's hard to believe they would refuse to post a video on their site that has inappropriate material given that about half the videos are already inappropriate, since they have kids in them and kids aren't allowed by the rules. (Hey, Turkewitz, take off your damn lawyer's hat and get back to your video!)

Second, is this what happens when a happy-go-lucky little ice cream company gets swallowed up by a giant conglomerate? It tries to show it has a sense of humor with a send-us-your-video gig, and then falls on its face? What would Ben say? What would Jerry say? They'd be rolling over in their graves at what has become of their beloved company, were either of them dead. Brothers, can you help us out here?

We coulda been stars. We coulda been somebody. That should be plural, but now I'm on a roll. We coulda been stars of the internet, instead of being woefully off-topic on this crummy little law blog where no one will ever find us.

As I was saying, and I know by now you are wondering where the hell the video is already, there doesn't seem to be anything inappropriate about a little BJ. That's Ben and Jerry, for the acronym challenged. But you can decide for yourself the appropriateness of the 30 second video that follows, for its Karamel Sutra flavor I should note, that has been:
BANNED BY BEN & JERRY'S!



Film and editing credit goes to my screenwriting brother Dan (whose own operatic Ben & Jerry's birthday wish was accepted) and script credit goes to my co-star and roommate.

Wait! There's more!!! What would a couple of movies be without their outtakes? First from my brother's film where I try hard to knock the ice cream off the cone, and then from our own video. Here they are:




Update: Ben & Jerry's Fear of Lawyers Kills Video Submission (7/30/08)

Labels: Odds and Ends

Is waterboarding torture, or is it now art?

And why, exactly, are 50 lawyers wanted for this exhibit?

"We felt like lawyers would yield an interesting result as they are most qualified to impartially describe the experience"

According to the press release at the web site linked below, the waterboarding will take place for all of 5 seconds. Somehow, I don't think 5 seconds is what the CIA has in mind when they do it.

The details are here in New York Magazine blog.

Labels: Odds and Ends

On May 27, 1988, after 2 1/2 years as an associate at a top medical malpractice firm in New York, I quit. Not for another job. But to pick up a backpack and travel around the world.

And so a journey began, initially lasting 10 months and including my first "blog" of sorts, a monthly travel journal I called The Turkewitz Times. But in actuality the travels lead to my own firm and the newsletter to this little electronic law diary. And it lead to a few lessons in the law, the kind that might not be in our books.

When I quit that job I was already experienced, having deposed over 100 medical professionals and tried two cases at Fuchsberg & Fuchsberg. And because of that experience I was confident I could hook up with a new firm when I returned after having scratched the travel itch. This was an adventure I could never undertake once I got married and had kids, had a mortgage and an assortment of other responsibilities.

That journey took me from the exotic center of Marrakesh, to the old stone walls of Dubrovnik and Jerusalem, on a felucca down the Nile and to the otherworldly Cappadocia in Turkey. From the depths of Red Sea scuba diving to the Himalayan heights of Nepal. From the poppy fields of the Golden Triangle of Thailand to a final farewell bungee jump in New Zealand.

I communicated back in '88-'89 by writing the newsletter filled with stories, a diary, letters, an editorial and an expected itinerary. This would go once a month to my brother Ken, who then typed it all up on a Mac with desktop publishing and mailed my periodical in previously addressed envelopes to 20 family and friends. They, in turn, could write to me (c/o American Express offices) at the anticipated drop points. I would get my own copy of the Times about two to three months after writing it. Much later came email and the the web. So this blog is sort of version 2.0 for me.

As I morphed from New York trial lawyer to vagabond bohemian, I used almost every travel conveyance known to man, usually in second class, and slept in almost every kind of budget accommodation, often in a state of some discomfort. A couple of random lessons from that trip still pop into my brain when evaluating and trying cases.

That's because you can't take law in a theoretical vacuum. Jurors can't be pigeonholed by race or sex, or by any level of economic or social level, though lawyers always try. When people have lived lives, often of spectacular diversity that you can't even begin to unravel in the few minutes you speak with them in voir dire, you come to realize the difficulties encountered in those few minutes you might have with each person.

And it also means that just because a judge tells jurors that they can do something doesn't mean they will, because their own life's experiences will get in the way. The law, for instance, may tell me that I must prove a case by a preponderance of the evidence. Just a smidgen more than 50%. But that doesn't work for some jurors. If they are going to shift the status quo, most want to see more, even if the judge tells them they don't need to have it.

One lesson on the law came to me as I rode the roof of a bus in India. It's called assumption of risk. There are times when each of us elects to take our chances to do something or go somewhere, chances that are purely elective. This is the general state of the world, and assessing those risks comes with living a life. And so if you've been hurt solely by your own hand due to the risk you've undertaken, please don't call asking for representation to blame someone who is blameless. Even if they have insurance. Because it isn't just me that won't be interested, but the jurors won't be either. Humans are not blank slates and do not magically become so when called for jury service, and most people will be more than a bit resentful if you try to treat them that way.

Another lesson also came on that same ride, as I watched the conductor climb out the door of the moving bus as we wound through the mountains, use a window frame for a step, and climb up to the roof to collect a few rupees. I came to appreciate the significance of our labor laws.

Other lessons came to me as I realized the significance of my own wealth. I had an American passport and an education. That alone, without more, put me at the top of the heap luck-wise, before even considering that I was able to afford the $2,500 round-the-world ticket that I bought on Pan Am. I was fortunate to have picked my parents well. And I learned not to sweat the small stuff. So please don't call me if your injury is small and you will make a full recovery in very short order. The jurors have had small injuries too. It doesn't mean they brought a suit for a gazillion dollars, the way some folks want to do. Sure you may see such suits in the papers from time to time. But only when the suit is brought, not when it is dismissed later on or settled for a microcosm of the initial demand. Sometimes you just have to count your blessings. Some commenters thought I wasn't compassionate enough for the guy who claimed to be trapped in the toilet of a JetBlue flight. Now you know why.

But possibly the biggest travel lesson had nothing to do with the law, or trying to find code violations in this Phi Phi Island hotel you see to the right. (Best two bucks I ever spent. Pants were extra.) And that is that life is short and if you want to do something, then you had better go do it. Sooner rather than later. Traveling will not be easier to arrange five years from now, if that is in your mind. Nor will starting up your own practice.

When I decided to start my own practice on my return, it wasn't with any grand plans. I just wasn't quite sure what I wanted to do next and decided to do some per diem legal work while I mulled it over. And so began the simplest start of any law business: I bought business cards. Then taped one to a white sheet of paper and xeroxed it onto good paper and I had letterhead. I rented a drop at Mailboxes Etc., and I was in business. I answered some ads for lawyers needed for depositions and court conferences, and typed reports on the old Smith Corona. I used this stuff called carbon paper. You can find it in museums.

I went from doing high-end medical malpractice actions prior to travel, to being a rent-a-lawyer that was faxed a few sheets of paper the night before conducting a deposition in the courthouse in a small auto accident case. The firms that hired me, often without even knowing who I was or asking about my experience, were not exactly engaged in the highest form of lawyering. It was a big come-down, but if I was going to take a shot at my own business, starting with rather limited funds, the time to do it was at 29, not 49.

The business didn't stay quite that small, of course. I found some medical malpractice cases in some offices that weren't be worked up (or more likely, they found me), started trying cases with success and arguing a couple of appeals. I got an office, and a computer. I cut off the ponytail I had grown. I'm now in business for myself for 19 years and sitting in my third office location after leaving the home version.

I'm not going to claim it was easy. Working for yourself as a small business is a big stress, regardless of the type of business. And the lousy cash flow economics of personal injury law, where you front the case expenses with your own money for years on end, virtually guarantees that growth will be slow. And that assumes you chose your cases wisely and won, and therefore got your disbursements paid back and actually made a fee.


But it has been a fun ride, and I have no regrets. Going out on your own is very much an adventure, in this case one that I stumbled into. But it's one I'm glad that I undertook. Whether I change again sometime in the future to link up with others is not something I know, only something I am open to. But that is because I try to continue on with an open mind on all sorts of things. You can't see much when your mind is closed.

Trying new things led to the creation of this blog, without really knowing what, exactly would come of it. Are there risks in writing stuff (or publishing pictures) for anyone to see? Sure. But you also never know where it will lead. (And it may lead nowhere, so I try to make sure I enjoy it, simply for the sake of doing it.)

It was that open mind that also allowed me to say yes when my five year old said he wanted a mohawk earlier this year. Because hey, I know what it's like to have once had a full head of hair, and to enjoy it while you can.

Labels: Odds and Ends

Robert Bork's lawyer, Randy Mastro, has been tapped as a member of Senator McCain's steering committee for judicial selections. Mastro is currently a partner at Gibson Dunn, and a former Deputy Mayor under Rudy Giuliani.

Of interest to this blog, however, is that he fouled up Judge Bork's trip and fall lawsuit against the Yale Club, causing embarrassment to the former judge due to claims for "in excess of" of million dollars, punitive damages, attorneys fees and prejudgment interest. Mistakes were made in the Complaint (and the Amended Complaint) that even rookie lawyers wouldn't make. I chronicled many of the unnecessary legal problems that were created by the botched suit here:

• Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees
• What Should Bork Do Now? (my suggested amendments to the suit)
  
• Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages (My open letter to Bork on the Amended Complaint)
• Bork's Attorney, Randy Mastro, Picked For Giuliani's Justice Advisory Committee
  

And so it appears that the old adage remains true: It isn't what you know, but who.

See also:

• McCain Says He Would Put Conservatives on Supreme Court (Washington Post)

(Hat tips to Scott Greenfield and Walter Olson)

Labels: Odds and Ends

You thought there were no cameras in the federal courts? Well, you would be wrong. In a New York federal courthouse a prosecutor was attacked last month, and it was filmed. Not by outside media, but apparently by its own security camera. And now footage of the attack has been leaked.

Labels: Odds and Ends

Vice President Dick Cheney has an implanted cardiac defibrillator. And it now appears that such devices can be hacked.

From an article in today's Boston Globe (via Dr. Wes):

A new study demonstrates a large gap in the security of implanted devices that help regulate heartbeats and use wireless technology, researchers from Beth Israel Deaconess Medical Center, the University of Massachusetts, and elsewhere report today.

"With some technical expertise, we were able to retrieve information from the device in an unauthorized fashion," said Dr. William H. Maisel, senior author of the report. "We were able to send commands to the device in an unauthorized fashion and could reprogram settings and even tell the device to deliver a high-voltage shock."

So if someone can get information on Cheney's heart, what exactly will they find?

See also: How to hack a defibrillator (WSJ Health Blog)

Labels: Odds and Ends

The Avvo web site for rating lawyers came on line last year to the sound of widespread derision. I won't re-invent the wheel, just point you to Scott Greenfield's most recent post on the subject at Simple Justice, where he goes through some of his past criticisms, which Avvo has been working on from the beginning. The last time I checked it out, they wanted my credit card number just to write a review of another lawyer. Thanks, I thought, but I'll pass.

Since Greenfield said today that many improvements had been made, I went back for a visit. After all, the days of lawyers or clients finding appropriate counsel from books is rapidly going the way of the dinosaur, and potential clients may find such websites that will replace Martindale-Hubbell. So this is the nightmare I found when I tried to create an account to update the profile they created for me:

A "terms of use" document that I started to read, before I realized it didn't have an end. Or at least it didn't have an end any rationale human being would ever see. After reading the part about giving them the right to change the terms at any time without my agreement, and this could be to take my first born for all I know, I knew it was unlikely I would agree to their terms of use.

It then went on to assert that they had the right to send me as many junk emails as they want from whoever they sell their lists to. You can't opt out. I mean, really, are you guys kidding with this crap? [Edit: Apparently you can opt out of commercial emails, but not "service or account-related emails." See the comments.]

Quickly disgusted, I copied and pasted the terms of use into a Word document, ran the word count, and found their 15-page magnum opus to be 4,983 words long. And some of it, for reasons known best to people who apparently don't deal with actual humans, is IS WRITTEN IN ALL CAPS IN BLOCKY PARAGRAPHS FILLED WITH WRETCHED LEGALISTIC MUMBO JUMBO making it almost impossible to read. Is this where you put stuff when you really don't want folks to read it?

I quickly left the site. Thanks, Avvo, I'll pass again.

Addendum 3/27/08: More on lousy legal drafting using all caps at The Legal Satyricon, wth many links: Seven sixteenths of one inch… Maddox meets contract drafting

Labels: Odds and Ends

Point 1: The Powers That Be continue to start games so late the little people miss out. That goes for the World Series too. I remember watching the stuff as a kid, but mine won't have those memories. I find it hard to believe they won't get the same advertising dollars by starting the game two hours earlier. The whole thing is penny-wise and pound-foolish when it comes to developing the next generation of fans.

Point 2: The Manning-Tyree Scramble and Catch will live on forever the same way that Mookie Wilson's at bat in Game 6 of the 1986 World Series lives on.

Point 3: Don't jinx yourself. The Patriots greedily tried to trademark 19-0. Which caused the NY Post to file a trademark for 18-1.







Of course that was not the only thing premature, as attested to by this new book by The Boston Globe:
19-0: The Historic Championship Season of New England's Unbeatable Patriots.
[Update: The link went dead after I grabbed this image]

Think the Pats will file a trademark suit against the Globe?


And if you feel you need to see The Play replayed, in case you too fell asleep because the NFL started the game so late as they bow to the Temple of the Almighty Dollar, here is the small snippet. Thanks to short-sighted NFL greed, children in the eastern part of the country never saw it live [Update: It looks like the NFL wasn't too pleased with seeing the clip on YouTube and had it taken down. I guess that's one way to make sure the little ones never see it. Way to go NFL!]



Point Last: Dan Hull at What About Clients has his Super Bowl themed Blawg Review #145 up and running, for more legal looking stuff. And it's anything but a snoozer.

Labels: Odds and Ends

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Labels: Odds and Ends

Scott Greenfield is perplexed. He's a top-notch criminal defense guy with more years of trials and appeals under his belt than he probably cares to count, and doesn't understand why BigLaw is paying obscene amounts of money to young associates who are years away from gaining actual, useful experience.

Scott writes, with salaries now approaching $200K (actually way more when you count the bonuses), that the ridiculous numbers now being paid are surely the thing that will drive business away from BigLaw and into the hands of the solos and small practitioners. "First year associates are near useless as lawyers," he writes. "They are incapable of producing useful legal work, and at best churn out wasteful hours of memos stating the obvious at great length in order to produce the requisite number of hours. Sure, they think they're doing a bang-up job, but that's only because they have no clue of the utility of their efforts."

While it's understandable that newbie lawyers will go to these places to put in their 2,000+ billable hours a year, have no life, rake in the dough and get little useful experience if they actually intend to litigate cases, it doesn't explain why the clients hire them.

But that part is easy. Clients often hire BigLaw for one reason: Because the person that does the hiring knows that no one will ever second guess them on trying to find "the best." They don't have to actually be the best, of course. It's like the old Wall Street saying that no one ever got fired for buying IBM. It didn't have to be the best stock, and the BigLaw firm doesn't have to be the best firm. But the person that does the hiring knows that they won't lose their job with a BigLaw pick, but that picking a firm with "only" 100 lawyers, or heaven forbid, just five lawyers or a solo, opens them up to criticism if things go wrong. The fact that the smaller firm might be able to do twice the job at half the price doesn't really factor into the equation.

It's just the age-old game of CYA. Nothing more. Nothing less.

Labels: Odds and Ends

Thus far, I've managed to avoid politics in this little spot except as it pertains to my niche of the law.

But no more!!!

Adams and Jefferson are in a tight race for the presidency, and the negative spots have started...


(hat tip, Respectful Insolence)

Labels: Odds and Ends

There are portions of Dan Solove's new book that should be required reading. Not for lawyers, but for high school and college students.

Solove's book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, starts with a good kick-in-the-pants to anyone who ever thought about writing online. But it's much more than that, for it's subjects are not just those who choose to expose themselves, but also those who are exposed by others. Gossip and rumor can spread from any corner of public or private life, as Solove demonstrates in a series of horror stories about people whose lives have been completely, and unexpectedly, upended by others writing about them. And it ends most sadly for those whose lives, secrets or peccadilloes have been exposed, as the avenues of legal redress are few and far between.

The two part book breaks down to identifying how reputations and lives can be destroyed in Part 1, and suggests legal solutions in Part 2.

The horror stories of Part 1 are gripping examples of issue identification, from the girl whose dog poops on the subway and the way a story about her rocketed around the Internet, to the lawyer-boyfriend who saw his ex kiss-and-tell on the web, for the whole world to see. Grouped together without the social sciences research that Solove intersperses with it, it would make for a fast and powerful lesson for rookie writers who are thinking of publishing anything on the web.

But it goes well beyond those that are writing, for as Solove discusses the norms of society, one can see how those norms would themselves change as each of us becomes better aware of the destructive power of information unleashed into this medium. If the fear of public shame on the Internet were fully realized, for example, folks may not be quite so careless with words, or with cars, or with relationships. If your anger at a fender-bender could be caught on a cell phone camera, would you vent the way your emotions are asking you to vent?

While Solove looks in Part 2 for the legal solutions and framework for protecting people -- such as providing a better means for some people to bring complaints or lawsuits against those that expose private information -- part of the solution may itself lie in the change of norms that would come with the full appreciation of the destructive power of the Part 1 stories. This could itself lead people to peacefully reach resolutions and accommodations where an all-out litigation war might have previously been started. An example of this can be found in Carolyn Elefant's Law.com column: Who Needs a Lawsuit for Excess Fees When You've Got the Internet? Though one might just as easily conceptualize how a messy divorce could be played out in full for the world, forever damning people's names to Googlehell. Since exposure cuts both ways, of course, it may lead people to think twice about what they are doing.

Some of Solove's ideas on the legal solutions are unworkable though. A prime example comes in the context of allegedly defamatory comments that are left by others. At present, bloggers and website owners have immunity for anything posted by others under section 230 of the Communications Decency Act passed in 1996. (Though if bloggers screen the comments before publishing, it is possible they could be deemed an editor and subject to liability, an issue that Solove misses that I believe is being litigated in a couple of places.)

Solove says this immunity is too strong, and suggests a format where the blogger could contact the owner of the blog or website and ask that the defamatory comment be taken down, and if the request is refused, the site owner could then be sued. Of course, the owner is in no position to have a trial to find out if the allegedly defamatory statements are true or not, and therein lies the problem.

My suggestion for Solove: Keep this book for the lawyers and legal theorists, but create a second version focused on Part 1, targeted toward high school and college students. Let them gain a more full understanding of the power of the medium, and appreciate that those innocent comments they make on Facebook or MySpace about their personal lives could stick around for decades. If they asked themselves a single question -- How will this look in 25 years? -- it may save an awful lot of reputational harm in the future.

On a final note, I found the book particularly interesting since I started thinking about these issues prior to the passage of the CDA protections when I was doing a little work for The Motley Fool, an online financial forum. There was no law and no precedent for the multitude of issues that would crop up in areas such as copyright infringement, defamation and jurisdiction. It was a spectacular exercise in issue identification.

With Solove's book, I see the results of some of those issues I first dealt with over 10 years ago. But the reach of a financial forum dwarfs that of a blog. And that made it a welcome read.

Labels: Book Review, Odds and Ends

The New York State Board of Law Examiners managed to foul up this year's bar exam, as readers of this space know, by losing many of the essay answers that had been submitted on laptops.

I covered it when 400 answers were still unaccounted for at the end of August: New York Bar Examiners Still Can't Find Complete Essay Answers.

And after the results were made known 11 days ago, and the examiners claimed to have taken educated guesses on the missing results, I wrote about it here: NYS Bar Examiners Do Grade Approximation For Missing Exam Answers

But over the holiday weekend, this anonymous comment appeared on my site, claiming that credit was given for an essay with no answer, and the same credit was given for an essay with a great answer. And there was no indication that this person was told his/her essays were part of the missing ones:

Here's a fair summary (having taken the test, having intense problems down loading and uploading the test) and failed: I left one NYS essay blank. (Ran out of time) I received a 3/10. That's odd...But then, on the essays I KNEW--KNEW so well that I was practically jumping for joy as I took the test--I received a 3/10 on those as well.

BOLE claims they have informed all those who had computer essays lost--I suspect not. I have written away for my answers and I will be intensly interested to see how that blank esay scored a 3/10...I suspect they were ALL blanks, because of the uploads.

If anyone else is in this prdicament, please chime in. There are a few attorneys that specialize in this, and I've contacted a few.

Which leaves all to wonder, especially those that were given a failing grade, exactly how the Board Examiners actually graded the essays. Or if they did at all.

Addendum: There is some discussion at Above the Law about the continued weirdness of the NY exam, and as to the legitimacy of the comment, and understandably so. I am reprinting an exchange from that site where I gave the reason I thought the comment was legit:

Anonymous: Most likely story: 1) Guy is a moron - gets 3/10 on 'esay' he KNEW; 2) BOLE sees blank essay - thinks guy had software problem; 3) BOLE gives guy 3/10 on blank essay, which is his average from the other essays.

Me: That was also my initial reaction. But the writer seems to indicate that s/he was not notified that s/he had a missing essay.

And the fact that the comment was submitted on an 11-day old post (actually 7 days at the time it was made) on a small blog meant it was likely to only be seen by a few, so a hoax didn't seem likely either.

This gave it a certain ring of truth.

We'll see if it amounts to anything.

2nd Addendum 12/16/07 -- There is an appeals process that BOLE has not publicized: New York Bar Examiners Will Entertain Appeals Over Laptop Problems

Labels: Bar Exam, Odds and Ends

The New York Bar Examiners reported grades today for the July 2007 bar exam that included a scandal whereby essay answers that had been submitted on laptops for 47 students had disappeared. The Board of Law Examiners did a grade approximation for 15 of those students and failed six of them based on an approximation of grades. The other 32 students either passed or failed based on the rest of the exam. The information was disclosed as part of this press release on the passing grades and the availability of exam results.

The release had this to say about questions regarding the missing essay answers, which I had covered previously (New York Bar Examiners Still Can't Find Complete Essay Answers):

...one or more of the essay answers for 47 candidates could not be recovered. Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined.

As to the exam results for the rest: The 15 New York law schools had a record pass rate for first time test-takers in the July 2007 exam, with 88.2%. According to the press release:

Not only did this group achieve a historically high passing rate, they also surpassed the passing rate of their counterparts from American Bar Association-approved law schools outside of New York. The passing rate for graduates of such law schools who took the bar examination for the first time in New York this July was 85.7%

When accounting for foreign students taking the exam and their 45.6% rate, the total pass rate was 70.6%

Exam results can be found at this link.

Addendum: 11/26/07: How, Exactly, did New York Grade That Bar Exam?

Labels: Bar Exam, Odds and Ends

Hundreds of New York attorneys tuned out at 1:00 today to rally in support of Pakistani lawyers that were arrested for demonstrating against the firing of the Pakistani Supreme Court. Some news reports have estimated that 25% of Pakistan's lawyers are now in prison due to protests against Gen. Pervez Musharraf's new decrees.

I just returned from the rally, held on the steps of the historic New York County Supreme Court building, moments ago, so this is likely a first report on the web.

By my eye, the crowd looked to be about 300-400 lawyers, well in excess of what I had anticipated. Attorneys filled the steps of the courthouse and spilled out onto the sidewalk below.

The rally had been organized by the New York State, New York County and New York City bar associations, and supported by others.

Speakers included a New York Pakistani lawyer whose father has been imprisoned.

An email was read from students at Pakistan's Lahore University about this rally, and they were grateful to see that American lawyers had taken notice and were showing support.

(Photo: This photograph that I took may be used without obtaining permission so long as attribution is given. It may not, however, be used for a commercial purpose.)

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Odds and Ends, Political Action

Yesterday California attorney Jonathan Stein offered free legal services to southern California fire victims. Today Stein says there are more:

Among the groups offering support are members of AAJ, CAOC, Consumer Attorneys of San Diego, Consumer Attorneys Association of Los Angeles, and United Policyholders, a non-profit group that helps insurance consumers.

His site has the details.

Labels: Odds and Ends

Jonathan G. Stein, a personal injury attorney with an office in Elk Grove, California, has offered free help to victims of the San Diego fires now ravaging the area.

In a blog posting earlier today, Stein said:

As much as we would all like to help, most of us are not trained in fire suppression. So, I am going to make an offer to the residents of San Diego: if you are a fire victim and you are not getting a response from your insurance company or they are low-balling you, call me. I will help you pro bono. (Yes, that means free.) Heck, if you just have a question and need a quick answer, call me or email me. I hope my fellow attorneys will step up to the plate as well.

J. Craig Williams at May It Please the Court discusses the dangers to his own home, and how media helicopters are interfering with firefighting efforts.

Update: Insurance Tactics and San Diego Fire Victims (Tort Burger - Hold the Reform)

Labels: Odds and Ends

One of my favorite Saturday Night Live commercial spoofs was for Shimmer. (It's a dessert topping! No, It's a floor wax!)

Well, now the law seems to have its own version. Mister Thorne over at his blog on legal writing, Set in Style, has discovered that the San Francisco firm of Wineberg Simmonds & Narita is offering both legal services and hair replacement.

Check with Mister Throne as to how he found it. If anyone knows of a more bizarre combo, I'd love to hear it.

No word yet on discounts for bald litigants who need both services.

Labels: Odds and Ends

New York is building new bike lanes, but not the usual kind. And that is why it is of interest to personal injury attorneys, since those in the field are accustomed to looking at an accident, and asking why something wasn't safer.

The video at this link runs for only two minutes, and shows the recent change to Ninth Avenue in Manhattan, and the new separation between drivers and bikers, with a lane of parked cars between the two. It shows something every city should be doing to enhance safety (among other benefits).

It should be notable when things change for the better. New York's Mayor Mike Bloomberg apparently "gets it." The bike lane is currently only seven blocks long, but the Department of Transportation is calling it the street of the future.

Between 1996 and 2003 there were 225 fatalities and 3,500 injuries to bikers.

It's easy to complain when things go wrong from a safety standpoint. In fact, that is much of what attorneys do. And applauding when things are done right often falls by the wayside. Well, I see something being done right, and New York deserves the acclaim.

Addendum: Now that I figured out how to add the video clip, here it is:

Labels: Odds and Ends

This deserves a bit more publicity: The First Annual Golden Gobbledygook Award, presented by The Party of the First Part.

Everything you hate about the way (some) lawyers write, and more.

Cryptic and pretentious legal writing, I think I can safely say, is devoid of plaintiff/defendant or conservative/liberal biases. It just sucks. Why anyone would want their reader to work hard to understand something is beyond me.

If I were to give one piece of advice to a legal writer it would be this: Assume the document will be read by someone sitting on a train, plane or perhaps a beach. Which Justice John Paul Stevens revealed he has done. Perhaps it will be read inside some ornate chamber by an individual with all the time in the world to parse the run-on sentences and ancient Latin phrases. But don't count on it.

Labels: Odds and Ends

Two weeks ago I wrote that my kid brother was a finalist in a screenwriting competition.

Today, he took the gold prize in the Sci-Fi/Fantasy category of the PAGE International Screenwriting Awards for Tranquility Base, beating 281 other entrants in his category. Not too shabby.

So when I wrote last time that he needed an agent, I wasn't kidding.
---------------------------------------------
About the script:
Tranquility Base is the story of astronauts stranded in space in 2040. The action moves between the International Space Station, a Space Transport Plane, and a Moon Base Biosphere, as 15 astronauts struggle to secure the six available spots in the self-sustaining environment of the Moon Base. A combination of 2001: A Space Odyssey and Survivor, Tranquility Base examines the challenges man faces when his desire to help others conflicts with his instinct for survival.

Labels: Odds and Ends

I didn't feel like writing or talking yesterday about my experiences and feelings on September 11, 2001. I rarely do, even though I was in the city at the time.

But writing about the days after is something different. And in that regard, one lawyer I had the pleasure of meeting deserves a tribute: Kenneth Feinberg.

Feinberg was the Special Master that ran the September 11 Victim Compensation Fund and was responsible for establishing the awards for over 7,300 claims, including over 4,400 for physical injury. But he didn't just administer the program. He actually conducted many of the hearings. From before dawn until after dusk, in cities throughout the country, he sat in rooms and personally listened to one horror story after another of broken families. According to the final report (p. 73):

During the course of the Fund, 3,962 hearings were held. Of these hearings, the Special Master conducted 931.

Feinberg didn't just absorb the stories and make the financial decisions, but he also navigated through a ton of abuse from traumatized families due to the way Congress had so quickly set the fund up, which was beyond his control. How well did he do it? Charles Wolf, whose wife died in the north tower, was furious at the start and turned to the web to vent his feelings and rally anti-fund support, but then renamed his critical web site called "Fix the Fund" to "The Fund is Fixed!" He wrote to Feinberg,

"To have one of your sharpest critics follow through on a promise and not only join the program he was criticizing, but promote it to his peers, says a lot about you and the way you have adjusted both the program and your attitude. Today, I have complete faith in you."

And he did all of it pro bono for almost three years, through the intense anger and raw emotion of family after family after family.

The fund was set up, if you recall, when the airline lobby raced into the Capitol to scream for immunity from litigation immediately after the attack, regardless of any negligent conduct they may have had that allowed the terrorists to breach their security. The planes had about $1.6B in insurance each, which was enough to cover people on the plane but not people or property on the ground. Bankruptcy was a real possibility.

Meanwhile, the American Association for Justice (ATLA at the time), under then President Leo Boyle, had called for a moratorium on any litigation as a result of the attack. When alerted to what the airlines were doing, they insisted to Congress that the injured and families of the dead should not be abandoned while a bailout was given to potentially negligent airlines.

Thus, the fund was born with an airline bailout on one hand, and guaranteed payments to the injured and families of the dead, regardless of fault, on the other. This deal came with the provision that if people participated in the fund they waived their rights to any lawsuit and waived any appeal of the fund's decision. The fund had 98% participation. A few victims declined to participate and their trials will start shortly.

And in response to the formation of the fund, AAJ gave birth to Trial Lawyers Care. With over 1,000 trial attorneys from every state in the Union, it was the largest pro bono offer of legal services ever created. I was honored to have played a tiny part of this effort estimated at $200M in donated legal services.

I appeared before Feinberg in one of my two hearings -- a woman from one WTC building with a head injury she incurred while escaping down a stairwell. And the one thing that occurred to me more than anything else as we sat there, was that he had to have extraordinary intestinal fortitude to listen to so many horror stories, day after day, week after week, month after month. The many boxes of tissues that stood at the ready in the hearing room spoke volumes.

And so I think it is fitting to tip my hat in Ken Feinberg's direction. In fact, it is fitting for all lawyers to tip their hats in his direction. Not on September 11 when the victims are remembered. But for his contributions in the days after when he got to work.

More Info:

• History of the fund and Trial Lawyers Care (American Association of Justice)
• Final Report of the Special Master for the September 11th Victim Compensation Fund of 2001 (Department of Justice)

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Odds and Ends

"Eak the Geek" starts law school today. After 15 years as Coney Island sideshow performer, where he specialized in eating nails, he starts today at Thomas M. Cooley Law School in Michigan, according to this report in AM New York.

Money quote: "I know it sounds weird, but I want to be a freak lawyer ...I hope to have a little office in New York and work with the alternative people ... all the so-called riff-raff, to give them legal representation that is not judgmental."

And the good news is that he has a blog. OK, it's on MySpace, but still, the potential is there for a new and unique window into the world of law.

Labels: Odds and Ends

Excuse me while I boast:

Congrats to brother Dan! His screenplay, Tranquility Base, just became a finalist at the PAGE International Screenwriting Awards. There are 100 Finalists spread over 10 categories (his is Sci-Fi/Fantasy).

Not bad considering there were 3,411 entries. Way to go bro!

About the script:
Tranquility Base is the story of astronauts stranded in space in 2040. The action moves between the International Space Station, a Space Transport Plane, and a Moon Base Biosphere, as 15 astronauts struggle to secure the six available spots in the self-sustaining environment of the Moon Base. A combination of 2001: A Space Odyssey and Survivor, Tranquility Base examines the challenges man faces when his desire to help others conflicts with his instinct for survival.

So, who knows a good agent?
===============================================================

About PAGE:
The PAGE International Screenwriting Awards competition was established by an alliance of Hollywood producers, agents, and development executives. Our goal: to discover the most exciting new scripts by up-and-coming writers from across the country and around the world. And due to the success of our winning writers, the PAGE screenwriting contest is rapidly becoming one of the most important sources for new talent within the Hollywood community and worldwide.

It's a Catch 22. While producers and agents continually complain that they can't find good material, talented writers who live outside Los Angeles and have no "connections" within the movie industry find it virtually impossible to penetrate the barriers of the Hollywood system. Our objective is to bridge that gap – giving new screenwriters the opportunity to get their scripts into the hands of industry professionals, and also serving as a much-needed resource for Hollywood producers, agents, and studio execs who are searching for quality material.

Labels: Odds and Ends

A month after taking the New York bar exam, many students still stand in limbo after the New York State Bar Examiners informed some that their essay submissions are incomplete. The missing essays for the July 2007 had been written on laptop computers.

According to New York Lawyer, "the board hired to provide software to take the bar exam, appear to have incomplete essays from about 400 people who sat for July's exam." (see: Son of a Glitch!: Hundreds of NY Bar Exam Takers May Have Had Essay Answers Fouled Up by Software, free reg.)

Test takers have been emailed and asked to send back-up data that they may have from the test.

I had previously recounted my own experience in taking the exam in 1985, when the results of 500+ people taking the test in the passenger ship terminals on Manhattan's west side disappeared. The vast majority had to retake the missing section.

And so, it appears that a high-tech replay of that infamous incident may now be in full swing.

Addendum:

• NYS Bar Examiners Do Grade Approximation For Missing Exam Answers (11/15/07)
• How, Exactly, did New York Grade That Bar Exam? (11/26/07)
  

Labels: Bar Exam, Odds and Ends

Above the Law, which fashions itself as a legal tabloid, has been chronicling the lack of humor at Nixon Peabody, one of those BigLaw joints that thinks it's a lot of fun to work at. They first created a song for themselves (so that's how those legal fees are spent) and then had a hissy-fit when it was leaked to ATL's David Lat who posted it online.

Some folks are their own worse enemies, as they threatned Lat on intellectual property grounds for publishing it, and then saw the song lampooned by another with a fair use parody. Lat's tablawg now lands in today's New York Times in the business section, so that all their clients can now see what they are doing.

Nixon Peabody has blown the one great rule of the digital age: Don't say, write or create anything that you don't want to see in the newspapers. And blown another rule about making dumb threats, which they can then be mocked for.

Hey, its August, which means slow news, and a chance to claim "tablawg" as my own creation since Google turns up zero hits on the word. Widespread use is not anticipated.

Late August also happens to be a perfect time to resign if you are an embattled attorney general.

Labels: Blogging, Odds and Ends

Will Westlaw and Lexis be going the way of the dinosaur? A new website to find legal opinions may do just that.

From Thomas Swartz at the New York Legal Update:, noting that the information on the new site will be easy to use, free, searchable, free, fast, and of course, free,

Columbia Law School and the University of Colorado Law School have launched a new Web site called AltLaw.org. AltLaw.org contains nearly 170,000 decisions dating back to the early 1990s from the U.S. Supreme Court and Federal Appellate courts. The site's creators, Columbia Law School’s Timothy Wu and Stuart Sierra, and University of Colorado Law School's Paul Ohm, said the site's database will grow over time. [More at the link]

The future may not be so bright for those companies when their bread and butter is delivered free to the legal world.

Labels: Odds and Ends

Wachtell Lipton may be saying one thing about its advertising and marketing while doing the opposite.

Dave Hoffman at Concurring Opinions today did a search of law firms that edit their Wikipedia pages in order to burnish their image. Wachtell, despite a prior disavowal of any marketing or advertising activities, apparently made 168 Wikipedia edits that included their own page as well as those of Cravath and Kramer Levin, according to Hoffman.

It is the law firm related edits that bring up the issue of duplicity. Because Wachtell already told the New York Times earlier this year that it didn't engage in marekting or advertising. From a story on March 2nd on New York's new attorney advertising rules:

Another big law firm, Wachtell Lipton Rosen & Katz -- did nothing immediately after the new advertising rules went into effect on Feb. 1. After the firm was contacted by a reporter, it put up a disclaimer.

"I did that in an overabundance of caution," said Meyer G. Koplow, Wachtell's executive partner. "Somebody was obviously asking questions."

Mr. Koplow said that the firm views its site only as a tool in recruiting law students.

"You're not going to see highlights of our flashy cases," he said. "This is a law firm that has no marketing department, no marketing director and does not engage in advertising activities."

If they are not going to show "highlights of their flashy cases" then why was I so quickly able to find this edit (I stopped looking after finding one, there may well be others) touting the firm from edit #72441900 (addition in red):

The firm is also known for its skill in business litigation. It has handled many of the precedent-setting Delaware corporate governance cases.

It seems to me that if the firm wasn't interested in touting their "flashy cases" they would have let others do the writing.

No marketing or advertising? Leaving aside the existence of a web site, doesn't editing your profile on Wikipedia to improve your image qualify as marketing? It seems like a reasonable question to ask since such conduct would be the type of thing one might expect from a marketing department.

Labels: Odds and Ends

I think it's safe to say this has nothing to do with New York personal injury law....

(Photo credit: Niece Julie)

Labels: Odds and Ends

I wasn't going to blog anything this week from vacation, but my nephew Max but this together with me and one of my kids, so it gives me a chance to experiment with video. Sort of.

Labels: Odds and Ends

That violent thunderstorm that knocked New York's subways and trains out yesterday was confirmed as a tornado that touched down in Brooklyn and Staten Island. This is the first such tornado in Brooklyn since records started being kept this century, giving the Coney Island Cyclone some new bragging rights. Prior to official record keeping, one was reported in Brooklyn the late 1800s.

Amazingly, no one was killed.

Right in Bay Ridge - Tracks the twister
New York Daily News: Brooklyn Becomes Tornado Alley
Newsday: A Brooklyn Tornado Is A Rarity
New York Times: Chronicling a Day of Chaos

Labels: Odds and Ends

Brooklyn Law School Professor Aaron Twerski will be honored by the American Bar Association on Sunday with the 2007 Robert B. McKay Law Professor Award.

According to the Brooklyn Daily Eagle (via TortsProf) the award "recognizes law professors who are committed to the advancement of justice, scholarship and the legal profession in the fields of tort and insurance law." Prior recipients of the award included Judge Richard A. Posner, and the late Charles Alan Wright.

According to the article:

"Twerski, an authority in the areas of product liability and tort law, has contributed to the fields through his service as both a scholar and a teacher. He has published dozens of law review articles as well as books on torts and product liability law. He was named the R. Ammi Cutter Reporter for his outstanding work as co-reporter for the American Law Institute’s Restatement of the Law (Third) Torts: Products Liability, published in 1998. His most recent articles were published in the Yale Law Journal, Cornell Law Review and the Georgetown Law Journal. He is co-author of the leading textbook, Products Liability: Problems and Process as well as Torts, Cases and Materials, with Cornell Law School professor James A. Henderson Jr."

But he doesn't blog.

Labels: Odds and Ends

This has nothing to do with New York personal injury law, but I like mysteries. And one legal mystery may have been solved.

Some folks had heard radio ads calling for clients disgruntled with Hogan and Hartson to call a number to complain (See Above the Law and Overlawyered), particularly if clients felt that a junior associate had handled a case where a partner had been retained.

Now, according to New York Lawyer (free sub.), Hogan's chairman, J. Warren Gorrell Jr., has stated:

"This is a fee dispute with a former client. They're causing an unusual level of harassment to make their case. But if there were much of a case, I think they would have gone a different route."

The name of the unhappy mystery client, that apparently thinks he was over billed, remains unknown to the public.

Labels: Odds and Ends

My office is closed today. Sitting just one block south and one avenue west of yesterday's steam pipe explosion, my office has been placed in a frozen zone by the police. Telephone voice mail still works.

The frozen zone appears to be rather large, encompassing several square blocks of some of the world's most expensive real estate in the Grand Central station area. Some asbestos has now been found in the debris.

When I exited Grand Central this morning in hopes of getting in to the building, I found the eastern and main southern entrances closed, and 42nd Street closed and in the process of being jack-hammered in parts by one of the many, many Con Ed crews jack-hammering in the area.

Taking a circuitous route south to my building at 40th and Park Avenue, I found the scenes on the right that I snapped with a cell phone camera. I was unable to determine when I would be able to get back in to the office. For some that might be a cause for celebration. But it isn't if you're the one paying the bills.

And yet...it could have been much, much worse.

Labels: Con Ed Explosion, Odds and Ends

My bar exam responses were lost. Not all of them, mind you, just the 200 multi-state multiple choice answers I scored on that computer sheet with a pencil. It was July 1985 and the place was a passenger ship terminal on Manhattan's west side. I was one of 500+ people who got the bad news a few weeks afterward. The answer sheets just disappeared. As in gone. Vanished. The crime (or act of negligence) was never solved. The answer sheets were never recovered from the Hudson River or local garbage dump, wherever it is they went.

With newly graduated law students preparing for next week's test, and the folks at Above the Law asking for bar exam anecdotes, I thought I would share mine.

I found out about the missing answer sheets while backpacking around Europe, a reprieve from law school and the stress of the exam. My buddy Murphy had been told, when he called his folks, "Tell Eric to call home right away. It's important." I was relieved to hear that the problem was only the bar exam that I had slaved over.

I was given four choices:

1. Take the whole exam again in February 1986;
2. Take just the multi-state again in February 1986;
3. Take a special make-up exam in September 1985; or
   
4. Cancel the whole thing.

I opted to come home early for the special make-up exam, since the studied material was still relatively fresh in my mind. Then the law-gods intervened.

A week after making my choice, I called home again and found out from my dad that my question booklet had been found. Not the answer sheets, just the booklet. And in the booklet I had circled answers before transferring them to the answer sheets.

Why mark up my booklet? Because when I took the exam 22 summers ago, I had listened to my bar review prep guy, John Pieper, who had told us that, to save time, we should answer the questions 10 at a time and then transfer the answers over.

So the bar reviewers looked at my booklet and could figure out 194 of my 200 answers. I was then offered a fifth option: Did I want them to score up a new answer sheet for me? Which meant that I started off with six wrong. (I later learned that this option was given to about two dozen people, if the examiners could figure out 180 or more answers from the booklets.)

That day I called home and was given this choice, I had gone summer-skiing in Zermatt. On a glacier. With a perfect view of the Matterhorn off to my left. And I was relaxing afterward with a cold beer. Coming home early to re-study didn't, for some reason, really appeal to me. Dad, I said, let's do it.

And that's how I passed the bar exam.

(Eric Turkewitz is a personal injury attorney in New York, receiving the good news on the bar results in December 1985 and being sworn in on the 25th day of February, 1986 in the Eastern District of New York)

Labels: Odds and Ends

Rudy Giuliani unveiled his "Justice Advisory Committee" today, revealing that Randy Mastro, the Gibson Dunn attorney handling Robert Bork's slip-and-fall case against the Yale Club, is on the list.

Judge Bork -- the former SCOTUS nominee, conservative favorite and tort "reformer" -- has been widely ridiculed and lampooned for not just bringing a routine personal injury action for "in excess of $1,000,000" for injuries that appear to be rather limited, but having also asked for punitive damages. The original complaint also included flat-out frivolous claims for attorneys fees and pre-judgment interest, neither of which can be obtained in New York.

So this raises two questions for Giuliani: First, do you want someone on your Justice Advisory Committee that has not only just brought a case with frivolous claims in it, but done so on behalf of a tort "reformer?" Will this reassure conservatives, who are already skittish over Giuliani's social positions and have concerns about his judicial appointees if elected President?

And second, as I pointed out in Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages, do you want someone picking judges that failed to draft a simple personal injury complaint, even when extreme caution was needed for a high-profile client? And then failed to correct all the errors in the amended complaint even after a hurricane of bad press? He was not only out of his depth on this case, but more importantly, apparently didn't seek adequate counsel on how to correct the mistakes. Will that type of throw-caution-to-the-wind conduct appeal to conservatives?

Mastro, by the way, is Giuliani's former Deputy Mayor. He might have fine political skills, and even have terrific skills in his particular areas of expertise. He might be a great guy to have a beer with. Having never met him, I wouldn't know. But having laid bare less than stellar legal skills in a routine case with a high-profile client, and having made frivolous claims in court on behalf of that client, is this the guy conservatives will want on a judicial selection committee?

See also:

• Walter Olson's Personal Political Announcement (Point of Law)
• Gibson Dunn Dominates Giuliani's Legal Team (Legal Pad)
• A Rudy Roundup (Race 4 2008)
• Thoughts on the Rudy and Fred "Brands" (NRO Online)
• Giuliani's Legal Eagles (Weekly Standard)
• Giuliani's Judges: Two Birds, One Stone (Real Clear Politics)
  
• Giuliani's Judges (The Right Coast)
• Rudy's Vaunted (and Conservative!) Justice Advisory Comittee (WSJ Law Blog)
• Better Judges, Better Courts (Pajamas Media, by Rudy Giuliani)
• The Next President's Justices (Conglomerate)
• Obama on Supreme Court appointments... (Althouse)
• Giuliani as Nixon (Race 4 2008)
  

Addendum: A few quotes from the piece Giuliani wrote for Pajamas Media linked above after the list came out, which clearly do not square with Randy Mastro's suit on behalf of Judge Bork:

"As President, I will nominate strict constructionist judges with respect for the rule of law "

"[W]e should reform the system by adopting rules that discourage frivolous lawsuits, such as "loser pays."

"We also need to establish limits on punitive and non-economic damages -- which are too often used to turn the legal system into a lottery system."

Giuliani has now given a speech on the subject. More links:

• Giuliani vows to appoint ’strict constructionist’ judges (CNN Political Ticker)
• Giuliani: Even the Moderate is an Extremist (Irregular Times)
• Update: Giuliani's Judges (Oval Office 2008)
• Tapped (The American Prospect)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Odds and Ends, Personal Injury, Political Action

For the New York practitioners who frequent here (all others will be bored):

Effective July 3rd there are new rules for motion practice and the time limits for service of cross-motions and papers. The rules can be found here: New Rules for Motion Practice

Effective 1/1/08 - new rules for service of a trial subpoena that changes the method of service.

Labels: Odds and Ends, Trial Practice

Apple's white-hot iPhone presents an ethical problem for attorneys. The problem is that, since the battery is not removable by the consumer for replacement, the phone must be sent to Apple for this repair. And since the batter is expected to fail after 300-400 charges, then one must assume the gizmo goes back to Apple after two years.

But what about all that confidential email on the iPhone? Unlike a regular cell, or a PDA whose battery can be popped out and replaced, an iPhone user may have to surrender it to Apple for a week or two. Even assuming a replacement cell can be used in the interim, it doesn't ameliorate the bigger problem of compromising client security. Therein lies the ethics issue.

New York's Code of Professional Responsibility, along with many if not all others, includes the canon that "A Lawyer Should Preserve the Confidences and Secrets of a Client."

And since the iPhone is, by definition, not working when it goes in for service, confidential information can not simply be deleted.

For attorneys, it may be impossible to send the iPhone to Apple for servicing. In fact, it could easily be said to constitute legal malpractice to release the iPhone from your custody, and therefore make version 1.0 of hte iPhone impossible to purchase as anything other than a disposable toy.

For a dissection of the iPhone and the problem with the battery, see Wired Magazine's IPhone Autopsy: Wired News Voids the Warranty.

Addendum: Apple just announced their battery replacement program for out-of-warranty iPhones (via The Apple Phone Show). Interestingly, it says that:

[T]he repair process will clear all data from your iPhone. It is important to sync your iPhone with iTunes to back up your contacts, photos, email account settings, text messages, and more.

Will that be sufficient to send an iPhone loaded with data off to a stranger at Apple, instead of having an in-house IT department or your local computer handyman take a crack at it the way you would for a laptop? From the perspective of an attorney with client confidences (or physician with medical records or businessman with trade secrets at stake), I doubt it.

Addendum 7/4/07 -- iPhone Review for Attorneys (TechnoEsq)

(Eric Turkewitz is a personal injury attorney in New York, Mac user since ~1994 and Apple shareholder since 1999.)

Labels: Odds and Ends

Rule #1 in writing a story about how dumb we are: Don't make spelling errors. Especially if you are Newsweek. And it is in the first paragraph.

In this week's copy a story on "Dunce-Cap Nation," we find the following opening:

July 2-9, 2007 issue - For our What You Need to Know Now cover story, we asked our polling firm to test 1,001 adults on a variety of topics, including politics, foreign affairs, business, technology and popular culture. The results were mixed, to be charitible [sic]. NEWSWEEK's first What You Need to Know Poll found many gaps in America's knowledge -- including a lingering misperception about an Iraqi connection to the September 11 terror attacks, an inability to name key figures in the American government and general cultural confusion.

(By the way, from the story, only 11% knew who the Chief Justice of the United States was, 41% thought Saddam Hussein was involved with the September 11 attacks, and most people didn't know that most of the hijackers came from Saudi Arabia.)

And if you find grammatical or spelling mistakes here, rest assured I did it on purpose to see if you are paying attention.
(hat tip to Legal Times)

Labels: Odds and Ends

I must be more influential than I thought. The Chinese government has banned my little blog.

This website will let you know if you too have somehow incurred the wrath of the Chinese government: Banned in China?

I'd like to think that my banishment occurred due to my subversive pro-democracy, anti-Chinese comments. But, alas, I've never written on the subject.

So I guess the Chinese government, like many people right here at home, simply don't like law and lawyers.
(hat tip, Capitol Confidential)

Labels: Odds and Ends

The story broke on Monday regarding the cardiac problems with Avandia, a diabetes drug by GlaxoSmithKline.

On Tuesday I took a look at Google's sponsored links for the search phrase, "Avandia Attorneys" and it showed three results, shown here in this screen shot: AvandiaAttorneysMay22.pdf

I checked again this afternoon and, no big surprise, the number has jumped. Now there are 11 seen at this screen shot: AvandiaAttorneysMay23.pdf

[Addendum 5/24, 9:00 a.m. - Overnight, two new websites appeared in the pay-per-click Google ad space with Avandia as part of the domain name. A week from now, the landscape will no doubt be far more cluttered than today.]

For those interested in the subject of attorney advertising, it will be an interesting metric to watch.

And if, by chance, you were wondering if this violates New York's new "30 day rule" that prohibits attorney advertising within that time frame for an incident, the New York State Bar Association has this helpful FAQ:

Question:

Do web sites which are aimed at lawsuits against specific manufacturers or causes of action (i.e., vioxx, etc.) fall in the "specific incident" provision of DR 7-111 such that, for example, once the FDA reports the danger of the drug publicly, the 30 day rule is triggered?

Answer: The use of the term "incident" in DR 7-111 apparently does not relate to the announcement of information. Rather it appears to relate to the injurious incident -- i.e., an incident such as the Staten Island Ferry crash.

Labels: Attorney Ethics, Interesting Cases in the News, Odds and Ends

President Bush signed an oddly worded Executive Order today that outlawed contingency fees for "legal and expert witness services provided to or on behalf of the United States."

This, of course, makes little sense. On the one hand, private counsel hired by the government to bring a civil matter runs an inherent conflict: Private counsel has an obligation of "zealous advocacy" while government counsel must be impartial. So an argument could be made for banning private attorneys. But by banning only those that work on contingency, this objective was not met since government can still hire private counsel on an hourly basis. By going half way, the administration failed to eliminate the conflict.

If you look at the title of the order, it says "Protecting American Taxpayers From Payment of Contingency Fees." So where is the protection from hourly attorneys who profit by making litigation more complex and drawn out and running the meter on the taxpayer's back?

Second, the Executive Order bans contingency payments to experts. Except that experts are already banned, so far as I know, from working on contingency. An expert can't exactly be impartial if they are only paid if they win. Thus, it appears that the administration banned a practice that already wasn't allowed.

The order can be found here. (Hat tip to Overlawyered) See also Beck/Herrmann on why hiring outside counsel represents a conflict.

Addendum 5/18/07 - Mulling this over some more, I see the order as even more bizarre for additional reasons: Any government contract is subject to potential problems, a subject often seen with military and construction contracts. At least with contingency fees the taxpayers won't have to lay out any money, and recovery will only come if the suit is successful. This will cost the taxpayers in the long run, with higher expenses and lower recoveries. This was, pure and simple, just another attack on trial attorneys since most tend to vote Democratic. It was politics superceding policy.

Labels: Odds and Ends

A new study has found that iPods can cause malfunction in implantable pacemakers. According to a report, interfering with the telemetry equipment caused the device to misread the heart's pacing and in one case caused the pacemaker to stop functioning altogether.

The lead author had concluded that iPod interference can lead physicians to misdiagnose actual heart function.

This, of course, raises potential legal issues for the pacemakers and physicians that implant them in the arena of products liability or medical malpractice. Since many iPods are now dropped into breast pockets, right next to heart, the issue going forward will be the need to warn patients about such a practice.

Labels: Odds and Ends

I had dinner with Bill Clinton last night. As well as New York Chief Judge Judith Kaye, most of the Court of Appeals, and dozens of appellate and trial court judges from around the state. And about 1,400 members of the New York State Trial Lawyers Association.

Clinton is amazing, pure and simple. He started with the need for decent justice systems so that the poor, the unseen and the dispossessed had a place to turn. He continued on for 45 minutes in wide ranging comments from the attorney general scandal to the extraordinary wastes of money in our health care system, to the benefits of foreign aid (peace is cheaper than war), Darfur, North Korea, Iran, drugs and poverty. He spoke without notes, rattling off facts and figures on one issue after another as if they were a part of his being, seeming to reserve most of his passion for the many problems of Africa.

He's the only post WWII president to leave office with higher polls than when he was elected. (via Volokh). There's a good reason.

Labels: Odds and Ends

In a decision released today, the United States Supreme Court includes video as part of its decision. Buried in footnote five of Scott v. Harris, the text of the decision is linked (not just cited) to a car-chase video that automatically downloads 92 MB to your hard drive. According to Howard Bashman (How Appealing) this is a first for the court.

(The Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash (as per SCOTUSBlog).)

Such a citation certainly encourages me to take more liberties with my briefs, incorporating pictures and diagrams into the brief instead of forcing judges to flip back and forth between exhibits and briefs.

Addendum: More Thoughts on Placing Video Online

Labels: Interesting Cases in the News, Odds and Ends

Former CIA Director George Tenet, in a book to be released next week, says that President George Bush wanted trial lawyers to help sell the Iraq war when the evidence for war wasn't strong enough. This story comes from a passage buried deep within an article starting on the front page of today's New York Times.

The Times focuses on Tenet's discussion of how Vice President Dick Cheney was pushing hard for war, when other alternatives existed. Explaining his "slam dunk" comment that the administration has used to justify its rush to war, the article states:

Mr. Tenet says he decided to write the memoir in part because the infamous "slam dunk" episode had come to define his tenure at C.I.A.

He gives a detailed account of the episode, which occurred during an Oval Office meeting in December 2002 when the administration was preparing to make public its case for war against Iraq.

During the meeting, the deputy C.I.A. director, John McLaughlin, unveiled a draft of a proposed public presentation that left the group unimpressed. Mr. Tenet recalls that Mr. Bush suggested that they could "add punch" by bringing in lawyers trained to argue cases before a jury.

"I told the president that strengthening the public presentation was a 'slam dunk,' a phrase that was later taken completely out of context," Mr. Tenet writes. "If I had simply said, 'I'm sure we can do better,' I wouldn't be writing this chapter -- or maybe even this book."

I find it a bit odd that Bush -- well known for trashing trial lawyers every chance he has -- would try to turn in that direction for support.

Tenet will be on 60 Minutes this Sunday pitching his book, and it will no doubt be a topic of some discussion all next week as it moves into circulation and gets reviewed.

Labels: Odds and Ends

From Ed Silverman at Pharmalot:

Four big drugmakers are ponying up a combined $8.1 million to create a new center devoted to health and pharma law at Seton Hall University's law school, which is located in a New Jersey suburb about 30 minutes from Manhattan.

The new Center for Health & Pharmaceutical Law is being funded by Schering-Plough, Sanofi-Aventis, Johnson & Johnson and Bristol-Myers Squibb. The law school claims this will be the only US academic policy center of its kind focusing on legal issues surrounding big pharma.

So, does anyone think Seton Hall's syllabus will be objective, or perhaps, just a tad slanted toward those that are funding them? According to an assistant dean, as quoted in Newsday, "We would like to do so as a neutral academic institution." Uh huh. I'm sure that, notwithstanding the 8 million bucks, they wouldn't hesitate to criticize their benefactors when warranted. [Edit: Excessively snarky comment removed]

Now check out this bit from the Pharmalot piece:

Bristol-Myers Squibb is establishing the chair as part of a resolution of an investigation by the U.S. Attorney Christopher Christie, a Seton Hall alum, who required the drugmaker to sign a Deferred Prosecution Agreement in the wake of an accounting scandal. The DPA expires in June and Christie recently said he's 'very happy' with Bristol's progress.

The lion's share of the money, $5M, came from Bristol-Myers Squibb. Perhaps it was just a coincidence that the U.S. Attorney's alma mater was the one to benefit from this agreement with a big drugmaker? Now that can't be right, can it?

Addendum: William Childs at TortsProf followed up with a comparison of the Seton Hall pharmaceutical deal with Temple University naming its law school after plaintiff's attorney James Beasley, founder of the Beasley Firm. He could have added the Touro College Jacob D. Fuchsberg Law Center, named after the personal injury attorney, and later Court of Appeals judge, of that name.

Second Addendum - (4/27/07) -- The story is covered today at the WSJ Law Blog, and this quote popped off the page for me:

A spokesperson for the U.S. Attorney told the Law Blog that the fact that Bristol Myers donated to Christie’s alma mater is nothing more than a coincidence. He points that there are only two law school in New Jersey and the other -- Rutgers -- already had a business ethics endowed chair.

Why did the money have to go to a law school? Are there no other worthy causes to give 9 million bucks to? The explanation looks particularly lame.

Labels: Odds and Ends

This has nothing to do with New York Personal Injury Law. But I'm a runner, and this is my blog, so that's that.

The nor'easter that deluged New York yesterday is swamping Boston today for the 111th running of the race.

At the marathon start, wind gusts hitting 50 pmh. Much of the staging area is underwater. Temps in the 40s and heavy rain predicted.

It's going to be epic. There's nothing like a foul weather run to put the zest back in your step (that's me on a trail run, at right).

May the winds be at their backs...

Labels: Odds and Ends, Running

As Blawg Review #103 ran the bases yesterday with a weekly recap of the posts in the legal blogosphere, some of my brothers and I hit Shea Stadium for the home opener (that's me on the left).

Completely missing from the recap, however, is a discussion of how the upper reaches of Shea can be the coldest place on earth in April (though beating the Phillies 11-5 helped).

We're talkin' baseball
Kluzuski Campanella
Talkin' baseball
The man and Bobby Fella
The Scooter, the Barber, and the Newc
They knew them all from Boston to Dubuque
Especially Willie, Mickey, and the Duke.

Labels: Blogging, Odds and Ends

Blawg Review #101 is up at the Divorce Law Journal, as Diane Skaggs of Louisville, Kentucky takes the week that was for a race around the blawgosphere, mint juleps and all.

My post on the tough legal issues facing claimants against pet food maker Menu Foods is her "pick of the week."

Labels: Odds and Ends

Blawg Review #100 is up a day early at Blawg Review, created by the anonymous Editor. It is a spectacular compilation of posts from around the legal blogosphre from prior Blawg Review hosts, and a few from future ones.

On a related note, I'm pleased to announce I will be a future host in November as I approach my 1st year blogiversary.

Labels: Odds and Ends

The servers for my hosting service were knocked off line yesterday. I'm back. To stay. I hope.

Update: And here is the reason, from Computer Business Review Online:

GoDaddy whacked by DDoS attack

The Go Daddy Group Inc has been hit by a massive distributed denial of service attack that took down many of its customers' websites and other services for several hours.

The company, the largest registrar of internet domain names and one of the largest web hosting providers, said it was the subject of "large-scale, sophisticated attacks" that lasted four to five hours.

....

Warner declined to speculate on the motive for the attack. His team is poring over packet captures to see if they can determine the source or motivation.

He may not want to speculate on the motive, but I will. It's called vandalism. There are people in this world who break windows or scribble graffiti because they think it is fun. I don't think it's too much more complicated than that. Whether high tech or low, a vandal is a vandal.

Labels: Odds and Ends

The Libby jury was methodical in its analysis and deliberations.
The Smith judge was "blubbering" as he created a media circus.

I've never seen a better argument for juries.

Labels: Inside The Jury Room, Interesting Cases in the News, Odds and Ends

The developing scandal around the firing of U.S. Attorneys around the country, apparently for political reasons since they were all doing good jobs, has just intensified.

Michael Battle, Executive Director of the Executive Office for United States Attorneys, has resigned.
(Via American Constitution Society Blog)

It seems inevitable that he will be subpoened to testify about who gave the marching orders for the firings, and what the basis was for those terminations. And if he is no longer working for the Department of Justice, he will be free to speak a bit more candidly than if he were. Which is bad news for the genius who thought firing good people was a good idea.

Update -- As per Fox News, Official Resigned "About a Month Ago". He was apparently unhappy about orders from above that he was to purge the U.S. Attorneys for what appears to be purely political purposes.

see also: U.S. Attorney Imbroglio: The Story That Keeps on Giving (WSJ Blog)

Labels: Interesting Cases in the News, Odds and Ends

From New York defense attorney Scott Greenfield entitled Simple Justice. (Mug shot at right.)

If you get arrested for drug dealing or murder (It was an accident!), he's the guy to turn to.

And he's a helluva writer.

Labels: Blogging, Odds and Ends

From my fellow New York blogger, Tony Colleluori, who practices criminal law out on Long Island. His blog, That Lawyer Dude, has The Land of the Sheep and the Home of the Frightened today regarding his recent trip to the Capitol.

Labels: Blogging, Odds and Ends

No, the headline is not a joke. From a local TV station:

A state senator from Brooklyn said on Tuesday he plans to introduce legislation that would ban people from using an MP3 player, cell phone, Blackberry or any other electronic device while crossing the street in New York City and Buffalo.

NewsChannel 4 reported that Sen. Carl Kruger is proposing the ban in response to two recent pedestrian deaths in his district, including a 23-year-old man who was struck and killed last month while listening to his iPod on Avenue T and East 71st Street In Bergen Beach.

"While people are tuning into their iPods and cell phones, they're tuning out the world around them," Kruger said. The proposed law would make talking on cell phones while crossing the street a comparable offense to jaywalking.

Maybe the Senator should just put a big "kick me" sign on his back. While New Yorkers are often seen as liberal with respect to government intrusion in our lives, this seems to go well beyond the pale.

Chance of passage? Someplace around zero.

Labels: Odds and Ends

Yesterday I had a pool of 30 jurors. Four of them were lawyers. One tried personal injury cases.

Now you would think that of all people in the world, the ones that try cases would be least likely to say things to deliberately get booted from the jury panel. After all, no one appreciates the need for jurors more than those who work in the well of the courtroom.

But more importantly, the experience of being a juror is one that every attorney should have. You might not learn anything new about law or about trial tactics in a routine matter, but you learn what jurors go through. This potential juror who did mass torts litigation proceeded to say the magic words to get kicked, either because he was too busy, or just too snobby, to sit on a routine trip and fall sidewalk case. (Since jury duty can be deferred a few times for scheduling problems, it was likely unrelated to being too busy.) Deliberately getting kicked off a jury panel is, in my view, a lost opportunity.

I sat once in the late '90s on a criminal case. And while it was a run-of-the-mill burglary -- knocking off a fish truck in broad daylight in midtown Manhattan while being trailed by two undercover cops -- and the lawyers weren't that good, it was an altogether different experience seeing a trial from the jury box. And from the jury room.

No one should ever mistake the inside of a courtroom for the inside of a jury room. And no lawyer should turn down the opportunity to serve.

Labels: Inside The Jury Room, Inside The Well, Odds and Ends, Personal Injury

In handling a Bush v. Gore question from the audience at Iona College the other day, Justice Scalia said:

"It's water over the deck -- get over it"

But the suspension of democracy in Florida in 2000 is not something to "get over" any more than other poorly decided Supreme Court decisions such as:

• Plessy v. Ferguson's holding that "separate but equal" race discrimination was OK, or the
  
• Dred Scot decision holding that slaves could not sue in federal court since no slave or descendant of a slave could be a U.S. citizen, or
• Korematsu v. United States, holding that U.S. citizens of Japanese ancestry citizens could be summarily relocated to detention camps during WW II based solely on their race.

In fact, Bush v. Gore was worse than all three. For each decision above could be overturned by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have been counted.

Bad judicial decisions are not something to "get over," but are mistakes to be learned from.

Labels: Judiciary, Odds and Ends, U.S. Supreme Court

New York's legal marketplace is hitting a new milestone: Paying fresh-faced, 20-something, first year associates more than federal judges.

Rookie lawyers at Simpson Thacher & Bartlett will be paid a base salary of $160,000 before bonus, according to a New York Law Journal article today. Bonuses for first years start at $30,000/year:

The New York firm's move, announced internally Monday, comes less than a year after an earlier round of salary increases boosted first-year salaries in the city to $145,000 from the $125,000 that had been standard for several years prior.

By contrast, federal judges start at $162,500 (no bonus, sorry), the same as members of Congress.

New York's Supreme Court justices (our trial courts, not the top court) start at $136,700.

If judges can do so well in the private sector, then we need to increase the incentives to keep good ones from leaving the bench. It is time we brought judicial salaries more into line with the marketplace.

Labels: Judiciary, Odds and Ends

So goes the contest over at the non-legal blog at Middle Zone Musings, which ends tomorrow. You can read many of the 6-word stories over there.

The "contest" caught my interest because lawyers often take forever to get to the point in a "brief," beat their point to death, or can't figure out what their point is. So forcing brevity makes one think.

The best writing tips I ever heard came from Bryan Garner:

• Frame your issue in 75 words or less.
• Win your point on the first page.

My own entry in the contest, with one word to spare:

What's your name?
Objection. Hearsay.

Labels: Odds and Ends

While New York personal injury law is what I want my tiny corner of cyberspace to be about, and not bloggers and the blogosphere, I step back today to reflect on the two months since I started on November 17, 2006.

First, I want to thank those who assisted in private emails and with links placed at their sites, particularly those legal blogs in New York. That certainly helped me get started.

I'm pleased that links were provided not just as part of a long blogroll, but to the content. Nicole Black, the queen of New York legal bloggers residing over at Sui Generis, has now linked to several of my entries, and has provided wonderful reading on all things New York.

Cyrus Dugger over at Tort Deform and Corp Reform has cross-posted my comments on issues of national importance concerning the attack on our civil justice system by large corporate interests that seek various levels of immunity for negligent conduct. This includes my comments on Gov. Eliot Spitzer's attempt to reform New York courts, the ruling that an Oklahoma court "reform" law was unconstitutional, and other matters. Author Stephanie Mencimer over at The Tortellini writes on a similar subject and has also passed a nod or two my way.

The Blawg Review, perhaps the most widely read of all legal blog compilations on the web, has now included me in two issues, the first of which was #89 regarding my note on a federal judge preventing the use of a pseudonym in a sex assault case. In issue #91, two different posts on emotional injuries were noted: The first on the tax exempt status of emotional injury compensation, and the one on zone of danger emotional injuries.

The Health Wonk Review picked up a bit I wrote regarding counterfeit drugs, as did the Health Business Blog by David Williams. I'm particularly grateful for these, as I assume many in health care have more than a bit of skepticism about personal injury attorneys. Also in the health field, Juvan's Health Law Update has been a great source of information to me on the continuing issue of the Prescription Drug Marketing Act and recent legal maneuvers that have stalled its implementation. (And the recent redesign of the site is simply superb.)

Finally, the Health Business Blog hosted the Cavalcade of Risk blog carnival this week, and noted the post I put up on Geico's idiotic idea to put up "safety" billboards at the George Washington toll booth plaza. Even a caveman would know it isn't safe to distract drivers in such a location with needless billboards.

I'm delighted (and flattered) that different communities of bloggers (New York-centric, tort "reform" and health care policy) have included my comments in their postings.

I'm now getting at least two dozen different feeds from various blogs (including all those in my blogroll), am constantly adding new sites, and am quickly finding it to be an outstanding source of information.

Now if only I had picked a wittier name for my blog...

Labels: Blogging, Odds and Ends

State Farm has done it again. Some years back they made quite a bit of law in a case called State Farm v. Campbell that went up to the U.S. Supreme Court on the issue of punitive damages that they had to pay for their conduct.

Now they got smacked again by a jury, this time for $2.5M in a case they offered to settle for $20K. This time, it was people victimized once by Katrina, before State Farm got to them for a second go-round:

Jan. 11 (Bloomberg) -- State Farm Mutual Automobile Insurance Co. must pay a Mississippi couple $2.7 million for the loss of their property, a judge and jury ruled in a test case over how much Hurricane Katrina damage is covered by insurance.

The judge, deciding actual damages without the jury, awarded $223,000 for the home and belongings of Norman and Genevieve Broussard of Biloxi, Mississippi. The jury awarded punitive damages of $2.5 million for State Farm's improper conduct in processing the claim...

The Broussards argued their house had been destroyed by wind or a tornado, a type of damage covered by insurance. State Farm, which is owned by policy holders, argued at trial that the loss stemmed from flooding, which the company's policy didn't cover.
...

[U.S. District Judge L.T. ] Senter called the company's handling of the claim ``impermissible,'' saying it offered the couple no choice except to sue over their claim.

``I find the defendant did not have any legal or arguable reason for refusing to pay,'' Senter said today in federal court.
...

Senter ruled today that Bloomington, Illinois-based State Farm, the largest U.S. auto and home insurer, failed to present enough evidence for the jury to be able to find that the policy terms didn't cover the damage.
...

The Broussards' attorney Bill Walker told the jury that his clients had been needlessly wronged by State Farm.

``Did they act like a good neighbor?'' he asked, referring to the company's famous slogan. ``No, they acted like a cheat. They acted like a chiseler.''

Labels: Insurance Industry, Interesting Cases in the News, Odds and Ends, Punitive Damages, Trial Practice

I posted just two days ago about the dangerous agreement that the Port Authority made with Geico to put billboards and other ads on the George Washington Bridge. Dangerous because the main focus of the $3.2M agreement was to divert the attention of drivers in a toll plaza away from the cars around them and toward the ads. Where they saw money, I saw danger and liability.

And just as suddenly as it was announced, the deal is now cancelled, as per this article in today's New York Times. As much as I would love to claim credit that my injury warnings from this tiny corner of cyberspace had something to do with it the article doesn't cite safety as any of the reasons.

Labels: Insurance Industry, Odds and Ends, Personal Injury

You really can't beat the irony. New York's Port Authority wants to let Geico put giant billboards up at it's George Washington Bridge toll booths touting "safety" according to a New York Times story late last week (sub req.)

Why irony? Because the billboards will intentionally distract drivers as they approach the tolls. That is, after all, the basic idea a billboard -- a distraction from driving to read the sign. This will be done in a spot with lots of stop-and-go traffic and lane-changing. According to the article, the signs:

will include the posting of a huge billboard on top of the toll plaza in Fort Lee, N.J., that says "Geico Drive Safely." Drivers will also see Geico signs with the company's mascot, a gecko, on the tollbooths and electronic signs on the approach roads.

Busy toll plazas are undoubtedly one of the more accident-prone pieces of roadway. I bet the toll workers and policemen that need to constantly walk that area are thrilled to have more distractions for the drivers.

Geico will pay $3.2M for two years for the ads. So I guess money trumps safety for the insurance company and the Port Authority that operates the bridge. The more things change in this world, the more they stay the same.

[Addendum: One day after this blog entry, the Port Authority cancelled the agreement, though the New York Times article said nothing about safety issues.)

Labels: Insurance Industry, Odds and Ends, Personal Injury

I posted earlier today regarding the new ethics rules regulating attorney advertising in New York, and the prohibition from soliciting clients for 30 days. These Disciplinary Rules that were created by the presiding judges of each of the four appellate divisions not only apply to plaintiffs lawyers but to defendants as well. And to insurance companies. But can the courts legally do that? Part (a) is for plaintiffs, and part (b) is for defendants:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

(b) This provision limiting contact with an injured individual or the legal representative theoreof applies as well to lawyers or law firms or any associate, agent, employee or other representative of a lawyer or law firm who represent actual or potential defendants or entities that may defend and/or indemnify said defendants.

And so an interesting question on the new rules has immediately arisen: Can the New York courts regulate what the insurance companies do?

Labels: Attorney Ethics, Judiciary, Odds and Ends, Personal Injury

New rules were announced in New York yesterday by the Office of Court Administration after months of debate regarding attorney advertising. The rules can be found here, courtesy of the New York State Bar Association. Two things of note, first on the reason for the rules and second on how they are applied.

The rule changes were prompted in part, I believe, by a number of attorneys rushing ads into the Staten Island Advance after the Staten Island Ferry disaster of October 2003, killing ten people.

Many ads appeared in the Advance the very next day, having been submitted the day of the accident before all the survivors had even been evacuated. It was not the finest hour of the New York bar.

The original rules suggested last year that there be a 30 day prohibition of such advertising for mass disaster. A problem with that was that the same rule didn't apply to defense lawyers and their agents rushing in to try and settle cases before the injured had a chance to fairly evaluate their rights (or even to contemplate their future).

The new rules apply to all personal injury cases (not just mass disaster) and apply also to defense counsel. So if there must be change, at least now it won't be to the detriment of those injured.

But this also leads to the second part, and that is defining attorney advertising. A web site clearly qualifies as an ad in the rules and must be so noted with the words "attorney advertising." In fact, my own web site on personal injury law already has this comment in place:

This website is the firm's electronic brochure, its sole form of attorney advertising. You found this site only because you looked for us. We do not engage in television, radio, print, mail or spam email advertising campaigns of any kind. Frankly, we find many of them somewhat offensive.

Throughout this site you will see examples of cases we have handled. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results cannot and do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained.

But what of web logs and their ever-changing content? If I link to my own web site, as I just did above, does this blog now become an advertisement? I also have this paragraph at my web site:

The Turkewitz Law Firm also sponsors the New York Personal Injury Law Blog to discuss issues of New York personal injury law, medical malpractice, cases of interest in the press, and public policy regarding the justice system. To the extent that it may discuss past cases the firm has handled for illustrative purposes, or in any way mentions the the firm or its services, the New York courts may deem this to be attorney advertising.

Will our web logs be considered advertising? Comments welcome on that one...

[Addendum: The front page article on attorney advertising in the New York Law Journal is now available at Law.com at this link.]

Labels: Attorney Ethics, Blogging, Judiciary, Odds and Ends, Personal Injury

In the world of New York and the law, there is really only one story in today's paper: Crusading former attorney general Eliot Spitzer being sworn in as Governor, with vows to reform the state and improve the troubling ethical issues that he sees in Albany. And to pick better judges, (a subject overlooked by most of the media).

In making his reforms immediately by executive orders, he stopped government staffers from using state-owned cars, computers or other property for their personal business. This was the issue that brought down Comptroller Alan Hevesi.

Spitzer also prohibited state officials from starring in taxpayer-paid advertisements. This was a favorite activity of outgoing Gov. George Pataki that effectively acted as free advertising for him.

Spitzer also, thankfully, set up new procedures to ensure those seeking state judgeships are qualified. A copy of his executive order with respect to new judicial screening committees can be found here. It includes folks from the judiciary and the attorney general's office, and from both majority and minority political parties.

The screening committees seem designed to find judges based more on core competence than political ideology. And that would be a very good thing.

[Addendum: On January 3rd, the New York Law Journal did a major front page story on judges Gov. Pataki elevated to appellate posts and their lack of diversity, which I posted about here.]

Labels: Eliot Spitzer, Judiciary, Odds and Ends, Political Action

It isn't quite New York personal injury law, but sufficiently interesting to deserve note: An Italian patient that wanted to die by being pulled off his respirator. Since we see "right to die" issues all the time where medicine meets the law, I wanted to share this one:

ROME - A paralyzed man at the center of a right-to-die debate in this overwhelmingly Roman Catholic nation died after he was taken off his respirator, days after an Italian court issued a contentious ruling in the case.

Piergiorgio Welby, 60, died late Wednesday, said Dr. Mario Riccio, the physician who removed the respirator. Riccio said Thursday that Welby had a constitutionally guaranteed right to refuse treatment.

"This must not be mistaken for euthanasia. It is a suspension of therapies," said Riccio, who volunteered to remove the respirator and was not involved in Welby's medical care. "Refusing treatment is a right."

...

On Saturday, a Rome judge recognized Welby's right to refuse treatment but ruled that doctors were not obligated to take measures that would result in the patient's death — even at the patient's request.
...

U.S. law generally permits patients to ask that medical treatment be withheld or withdrawn, even if it raises their risk of dying. Voters in Oregon went further and approved the first physician-assisted suicide law in the U.S. in 1994, but it is now under legal challenge.

In 2001, the Netherlands became the first country to legalize voluntary euthanasia — where patients are killed at their request to ease suffering, even in cases where they might survive without treatment. Belgium legalized it under strict conditions in 2002.

Labels: Interesting Cases in the News, Odds and Ends

This past week, the Association of Trial Lawyers of America (ATLA), of which I am a member, changed its name to the American Association for Justice. Below, is their explanation:

Dear Colleague:

On December 11, we are entering an exciting new chapter in our association's history. We will officially change our name to the American Association for Justice.

This change was approved overwhelmingly by ATLA's Board of Governors in June and by ATLA's membership at our annual convention in July.

Changing our name to the American Association for Justice is an important step in our campaign to protect and strengthen the civil justice system.

It better articulates what we do: fight to ensure that every person has access to justice and can get a fair shake.

Our opponents - the drug and oil industries, big insurance companies and other large corporations - have spent billions of dollars over the past decades to wage an unprecedented attack on justice. Their plan is simple. They want to eliminate the only thing left holding them accountable - the civil justice system, often the last resort for many Americans.

As attorneys, we work to make sure any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests.

Our new name - the American Association for Justice - more accurately reflects our role as advocates for justice. It will further allow us to reframe the debate in the court of public opinion - just like we do every day in the courtroom.

I look forward to moving together in this exciting new direction.

Sincerely,

Lewis S. "Mike" Eidson

This ATLA (now AAJ) member approves. The focus of the organization should not be on us, but on the principles and people that we represent.

Labels: Odds and Ends

This blog is inaugurated and dedicated with a simple message -- that while the law is often complex, it need not be. It is my intention to discuss cases of interest for New York personal injury lawsuits, pending legislation and other matters of public interest in the same style that I try cases in the courtroom. Simply. If I can take the inner workings of the human body and make them understandable to lay jurors while trying a medical malpractice case, I ought to be able to make the law understandable here. At least that's the theory.

Labels: Odds and Ends