When a Juror Calls You a Motherf*cker

Sadly, “M.J.”  didn’t want to attach his name to this story in public.  But I assure you it comes from a prominent top notch NY trial attorney, and is very much a first person account of jury selection.


I picked in Nassau a couple of years ago on a trip and fall.  I stood up and asked the panel whether there was anyone who took issue with the case from the outset simply by virtue of the fact that I represented someone in a trip and fall accident where they were claiming injuries.

A pleasant looking 40-ish year old woman raised her hand and said “You motherfucker.”

I started laughing and said “I’m sorry, what?”  “You motherfucker.  I’m so sick and tired of you lawyers suing everyone for x,y,z…”

This went on for about 3-4 minutes and then I asked her to come outside and we saw the clerk.  I told the clerk “This nice lady feels I’m a motherfucker and can’t judge my case fairly.”

The clerk sent her to a murder trial panel.

I went back into the room and asked the panel “Who else here thinks I’m a motherfucker?”  All but five hands went up and I let them all go.

My adversary turned to me and said “Why don’t we let these five jurors go and start fresh?”  I said “no, these five people don’t think I’m a motherfucker – I’m keeping them,” to which my adversary responded “You motherfucker.”

Update: There were multiple reasons I put up this war-story post, and here they are.

Speeding Along to Break Ethics Rules in Gas Explosion (Updated)

Well, that didn’t take long. As I sit here pecking away at the keyboard, firefighters and search teams are swamping the site of a huge gas explosion in Harlem that took down two buildings, killed at least two, and injured many others.

The explosion took place at 9:30. The first attorney ad went up on Twitter within hours. The winner in the race to the bottom? [Updated, name deleted.)  You can see a screen shot of his Twitter feed here to the right [deleted].

And if you can’t read the graphic, here it is in all it’s ugly glory, via his Twitter feed,  @NY_InjuryLawyer:

Were you or someone that you know injured in the #eastharlem explosion? Contact [deleted] at 1-800-[deleted]. #harlem #explosion #nyc

(Update, 3/13/14: The firm has now deleted it from Twitter…see below for explanation.)

As regular readers all know, New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific 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 representing actual or potential defendants or entities that may defend and/or indemnify said defendants, 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.

The last time I wrote about this was December 2, 2013, when Proner and Proner were running ads after a train derailment in the Bronx.

And at the risk of repeating myself, yes, this is a solicitation within the meaning of the Code because it is targeted to a specific group of people:

Rule 7.3(b)  For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

What I found interesting was that, in the weeks after that accident, I spoke at a seminar on the subject of attorney ethics and solicitation. Incredibly, there was someone there trying to defend the practice of violating an explicit rule on solicitation. His rationale? That there existed some type of generalized duty of lawyers to inform the public of their legal rights.

Let’s be clear on this. Soliciting within 30 days seems to be a pretty clear violation. I can’t foresee anyone being able to lawyer their way around it if called on the carpet by the disciplinary committee.

The only real question is whether the disciplinary committees will turn a blind eye to what is going on.

Update, 3/13/14: I received a call from a very distressed support person for the lawyer — she is in charge of the social media for the firm and is the one that did the tweet. She told me that she posted the tweet without having it reviewed  by her boss, which was her mistake.

I told her that the mistake was not hers, but the lawyer’s, for outsourcing his marketing to a non-lawyer who didn’t know the Code of Professional Conduct, and noted the formula: outsource your marketing = outsource your ethics.

She corrected me, and noted that she was supposed to get approval. Thus, the fault lies with her.

A couple of things worth mentioning. First, I always give brownie points for people that ‘fess up when they’ve made an error. I wish our politicians would do the same.

Second, there were no threats of any kind. It was, in all respects, a very polite request made by phone. She had the voice (and integrity) of the type of person a lawyer would want as a support person.

Finally, I’ve elected to delete the lawyer’s name from the text, and pulled it off the category heading. It is still on the graphic [edit: changed my mind, now that is gone also], but graphics aren’t searchable by Google.

So it now stands as another example of the risks of social media, as well as an excellent example of how to cure a foul up. This morning the firm had lemons. Now it has lemonade.

hat tip: Andy Barovick

New York Changing Its Contingency Fee Formula

No-Win-No-Fee-SolicitorEver since the Great Flood swept over the earth in the days of Noah, or at least since I was sworn in 28 years ago, New York’s contingency fees formula in personal injury cases has remained static: Lawyers get paid their contingency fee off the net recovery, not the net gross.

And now that is changing.

A short tutorial for those who might not get the significance: If a case settles for $100, and the lawyers advanced $10 in expenses, then they first get paid back their $10 and the legal fee is calculated on $90. Thus, a $60 recovery for the client and a $30 fee for the attorneys if the fee was based on one-third of the net recovery. (Medical malpractice cases, while being far more difficult and complex, have lower fees.)

If, on the other hand, we were paid off the gross recovery, the client would be paid $66.67 and the attorneys’ fee would be $33.33. Then the client would pay back the $10 in expenses and net out $56.67.  The effect of compensating attorneys off the net was that the attorneys were paying ⅓ of the expenses of the litigation.

But New York’s second appellate department has now changed rule NYCRR § 691.20(e), which formally read that the fee:

shall be computed on the net sum recovered after deducting from the amount recovered expenses and disbursements for expert medical testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action.

Now, however, counsel is permitted to give the new clients a choice of how they wish to do it. The clients can either front the costs themselves (which most are economically unable to do) and allow the fee to be calculated against the net, or the clients may elect to front the costs themselves and have the fee calculated against the gross.  Here’s the new rule: Contingency Fees in PI Rule Change

Is this good for clients? At first blush, some might say no because it means that the attorneys are no longer paying ⅓ of the disbursements — in the end the client is getting $56.67 instead of $60, in the example I used.

But in actuality, a great many cases aren’t so clear cut as to whether lawyers will take them or not because some are not financially viable by using the “net” formula. If there is only $25-50,000 in insurance, after all, and a lawyer thinks she may have to pay $5,000 – $10,000 in expenses, many will simply decline the representation.

We see this happen in medical malpractice cases all the time due to the low fees, resulting in the medical community enjoying de facto immunity for most acts of malpractice due to the very low legal fees we have in New York. While tort “reformers” claim this is a good thing, the real-world result is that the loss is then borne by the victims and taxpayers who must front the costs of the loss instead of the people or institutions responsible.

Word has it that the other three appellate departments in New York will soon follow suit with the altered fee calculation.

But one rule remains hard and fast and unchanging- when we lose we get zip. And we will also, most likely, be eating the expenses.

The Old and the New (Gold Coins and Bitcoins)


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

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

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

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

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


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

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

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

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

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

Let it snow, let it snow, oh crap…

Michael JaffeEveryone gets excited for the first snow storm of the year. After a few of them, however….

Mike Jaffe — a past president of the New York State Trial Lawyers Association — appears to have had enough. Today he guest blogs on the call he received this morning from his kids’ school:


5:30 a.m. – house phone, cell phone, other cell phone – please be advised today, Thursday, February 13th, all Syosset schools will be closed. Please be further advised we’ve decided not to reopen until winter is over – what’s the point? When your phone next rings at 5:30 a.m. you can assume schools have reopened and you can wake your children.

For now, one of you should stay home with the kids while the other shovels while snow continues to come down so you can get your car out onto the unplowed road in front of your house and hope for the best getting to work in whatever tortured way you’re going – this includes a two mile per hour drive in bumper to bumper traffic or a slog through the LIRR parking lot to a nasty salt stained train car packed with miserable people who would rather be anywhere but here as long as anywhere but here is outside the polar vortex you recently learned about.

For today’s cruel joke it will snow while you travel and then turn to rain that travels sideways so your umbrella will be pointless (if you have goggles you might consider wearing them – they go well with a suit and tie and overcoat), that rain will then freeze on the ground so there will be a nice layer of impossible-to-clear ice on which half a foot of snow will fall later this evening for your commute home in either bumper to bumper traffic or among the beaten down, miserable, sloggers on the railroad who will by then all have the look of prisoners released from prison only to learn it was a mistake and they must come back.

We do note that it is supposed to warm up early next week – while you might think that would allow us to open schools, unfortunately our buses all have flats due to the Grand Canyon-like potholes which have opened up on every surface where tires would normally drive so we are unable to pick your children up and bring them home.

We would ask you to drop off and pick up but our drivers have noticed many of your cars on cinder blocks in your driveways – apparently having encountered the same canyons our drivers have encountered. On third thought, screw all of this, tell your children to walk to school like we did when we were kids. Who do they think they are? Little coddled brats. School’s open.

Local Super Bowl Ad Features “Flaming Sledgehammer of Justice”

JamieCasinoAdThe tip comes to me from a friend: Have you seen this?!?  A Savannah, Georgia personal injury attorney bought up two minutes of local airtime during the Super Bowl last night to explain why he’s a personal injury attorney.

And he does so with a flaming sledgehammer. And trading on the shooting death of his brother. And smashing a tombstone. And dissing his past criminal defense clients, describing himself as a “notorious criminal defense attorney” who was “employed” by “cold-hearted villains.”


While I am no fan of personal injury ads, having only seen one that was actually done well, I do admire folks who will try something different. But trying something different doesn’t mean pretending you are a super hero and smashing a gravestone, with ridiculous production, as attorney Jamie Casino does in this video, now on YouTube. Go watch it, then come back.

Welcome back.

The most important issue: If he will diss his former criminal defense clients today, and claim to have been in their employ, what will he say about his current clients tomorrow? How do you trust someone who will rip into his prior clients? This isn’t just a question of being fickle in his choice of practice areas — anyone ought to be able to move around for a multitude of reasons — but calling them “cold-hearted villains?”

The fact that he trades on his brother’s death and uses atrocious production values to garner attention (which obviously worked since I’m writing about it and others also will) may go to the good/bad taste of the viewer. I think they are bad taste.

Also, I’m not keen on people that wear sun glasses at night, unless they happen to be the Blues Brothers. And using Avvo Answers to ask people to call him. But I guess those are nits to pick.

But there isn’t really any excuse for trashing your clients, to whom you owe a fiduciary duty and duty to preserve secrets even after representation is done.

If he finds more lucrative retention a few years down the road in another line of work, what will he be saying about today’s personal injury clients?

Addendum: It appears from this article that Jamie Casino’s brother Michael was killed in 2012 and that he then switched over from criminal defense to personal injury law. And that means he likely has little actual trial experience in personal injury. From the article:

Casino goes on to depict events surrounding the real-life slaying of his brother over Labor Day weekend in 2012. Casino’s younger brother, Michael Biancosino, 30 at the time, and Emily Pickels, 21, were shot and killed in Biancosino’s vehicle in the early hours of Sept. 1.

So this guy, who has most of his legal experience in a different field, criminal defense, just spent a boatload of money — two minutes during the Super Bowl — to advertise for clients in his relatively new field. This is from his website:


There is a difference between marketing and lawyering.

Addendum #2 – See Max Kennerly’s take (Jamie Casino and The Super Bowl Ad: Just Because You Can Doesn’t Mean You Should):

…I’m dismayed by his negative portrayal of his former field, criminal-defense. In his prior work as a criminal-defense lawyer, did he break ethical rules? Did he conspire with clients to commit crimes? If not, then what’s the problem? What is he ashamed of? The ethical practice of criminal defense?…

Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!)


An old baseball of mine, that I had stitched back together to keep the leather on.

I found an old baseball of mine a few years ago. The white stitches that replaced the red originals were still in it from my childhood repair work. Throwing grounders in the street tended to chew things up.

We didn’t have megastores 40 years ago where you could buy them cheaply by the dozen. A baseball was precious. This one now sits on my desk in one of those plexiglass cases usually reserved for famously autographed balls.

While the calendar claims it’s winter, and Super Bowl conversation buzzing about, appellate lawyer Jay Breakstone sees spring. Pitchers and catchers are reporting to spring training next week, and the SCOTUS fantasy baseball league is getting ready to draft. He guest-blogged baseball a few years ago, and now returns.

Who says lawyers can’t write like poets?


Everyone in my neighborhood knows that I am the lunatic who walks down his driveway every morning in his bathrobe to get the newspaper.  It matters not whether there’s snow on the ground or it’s raining cats and dogs.  Going out like that in the morning is my way of thumbing my nose at the seasons.

It says that I am alive and have not succumbed to winter’s cold.  It shows that I believe that the sun will come up tomorrow, that there’s a bright golden haze on the meadow somewhere and that baseball will soon be here.

It’s not so much that baseball starts in the spring that makes it so life-affirming, but that baseball starts before spring that is.  Baseball assumes, when pitchers and catchers report in mid-February, that the snow on the ground or the chill in the air is just a temporary affliction that time will heal.

The fact that I walk down the driveway every winter morning in my bathrobe to pick up my newspaper, encased in a plastic bag to protect it from the snow and the ice, means nothing to baseball.  Baseball knows that somewhere, spring awaits.  It knows it before the crocuses stick their necks out of my flower beds and it knows it before that first morning that I can go down my driveway barefoot without freezing my toes off.

Baseball is eternal; a child’s game played by men as if they were boys.  There is no time clock in baseball; it is only played in one season – Baseball Season – and games end whenever they end, or when someone’s mother calls them home for dinner.

There is no death in baseball; fathers are fathers and sons are sons and they remain that way forever.  There is nothing outside of baseball; it has it’s own rules and traditions, none of which makes sense in the real world, because baseball doesn’t live there.

Finally, there are no green vegetables in baseball, only Cracker Jacks and peanuts in the shell that you get to throw on the floor and no one yells at you.


Jay Breakstone, lawyer and wordsmith.

No matter what happens – - no matter what Congress does or doesn’t do, no matter if global warming has us frying or the polar vortex has us freezing, no matter which Kardashian suffers a urinary tract infection or if Jimmy Fallon succeeds or fails – - no matter what, on March 31st the Mets will open their season against the Washington Nationals.  A day game.  A place for men to play hookie, once more, and for the world to be re-born, once again.

The magic words?  Batter up!

(Jay Breakstone  is the author of MondayMonday, his weekly ruminations on NY appellate practice and life.)

But I Didn’t Write That Stuff on My Website!


Have you passed off your ethics and reputation to someone else lately?

The orthopedist was on the witness stand last week. He was well credentialed as defendant’s expert: top schools, top training, top position.

And then came plaintiff’s cross examination. The issue was the relationship between disc bulges and disc herniations. The doctor said there was a difference. And that bulges were the result of degeneration, otherwise known as the aging process.

(Some doctors are (in)famous for calling everything degeneration, because, you know, we start to degenerate when we are born.)

Then plaintiff’s attorney, Harlan Wittenstein, posed a general question to the doctor about bulges and herniations being the same. He denied it.

But Wittenstein, a seasoned trial attorney, just happened to have, oddly enough, a 24 x 36 blow up of the doctor’s web page where that assertion existed.  He got it into evidence as a prior inconsistent statement. This was the website language:

A herniated disc, also called a bulging disc, ruptured disc or slipped disc, occurs when the inner core of the spinal disc pushes out through the outer layer of the disc.

Herniation describes an abnormality of the intervertebral disc that is also known as a “slipped,” “ruptured” or “bulging” disc.

The doctor kept saying, and I paraphrase here since I don’t have the transcript, ‘I see that its in my website, but its not true.  I didn’t write it.  Someone else writes the content.’

You know what happens when you outsource your marketing? Your ethics and reputation get outsourced also. And this applies to everyone, not just lawyers.

Pete Seeger, 1919 — 2014

Pete SeegerThe first time I saw Pete Seeger sing was in a driving rain storm. It was in Albany, 1981, and I was part of a university crowd marching downtown to protest the  Springboks —  the national rugby team of apartheid South Africa.

The skies opened up on us during the march. But there was Pete, banjo in hand, with supporters holding umbrellas over his head, singing. Through the eyes of a 21-year-old college student, he looked old even back then. This was the scene, as recorded by the New York Times:

ALBANY, Sept. 22— After a day of Federal court decisions, a bombing of the sponsor’s headquarters, arrests of radicals and mobilization of the city’s police force, the touring South African Springboks rugby team played a rain-drenched match tonight on a floodlighted field in Albany’s outskirts.

While the players scrummed and kicked in the mud, the shouts of 1,000 demonstrators confined to a knoll 100 yards away reached the field, which was surrounded by the police. Pete Seeger led the protesters in the African song ”Wimowey” and a local minister said, ”This will go down as one of the blackest Tuesdays in American history.”

I’m not going to sit here and say I agreed with every position that he stood for over the course of his 94 years. I can’t say that about anyone. But when a man stands up to the House Un-American Activities Committee because they are afraid of his music, it’s hard not to appreciate his strength of conviction in the First Amendment. He reportedly had this to say in 1955:

I am not going to answer any questions as to my association, my philosophical or religious beliefs or my political beliefs, or how I voted in any election, or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this.”

You can actually see the testimony on Seeger’s own website.

But that doesn’t mean he was unwilling to tell this most un-American of committees a little bit about himself. He offered instead to sing the songs that the committee mentioned. They refused. He was blacklisted. He was indicted. He was convicted.

And the conviction was overturned, though not on First Amendment grounds, which were not even discussed. Today, that is the way most would have looked at the refusals to testify.

This is a fuller part of the inquisition before the committee:

MR. TAVENNER: The same occasion, yes, sir. I have before me a photostatic copy of a page from the June 1, 1949, issue of the Daily Worker, and in a column entitled “Town Talk” there is found this statement: The first performance of a new song, “If I Had a Hammer,” on the theme of the Foley Square trial of the Communist leaders, will he given at a testimonial dinner for the 12 on Friday night at St. Nicholas Arena. . . .Among those on hand for the singing will be . . . Pete Seeger, and Lee Hays-and others whose names are mentioned. Did you take part in that performance?

MR. SEEGER: I shall he glad to answer about the song, sir, and I am not interested in carrying on the line of questioning about where I have sung any songs.

MR. TAVENNER: I ask a direction.

CHAIRMAN WALTER: You may not he interested, but we are, however. I direct you to answer. You can answer that question.

MR. SEEGER: I feel these questions are improper, sir, and I feel they are immoral to ask any American this kind of question.

MR. TAVENNER: Have you finished your answer?

MR. SEEGER: Yes, sir.

MR. TAVENNER: I desire to offer the document in evidence and ask that it be marked “Seeger exhibit No.4,” for identification only, and to be made a part of the Committee files.

MR. SEEGER: I am sorry you are not interested in the song. It is a good song.

MR. TAVENNER: Did you hear Mr. George Hall’s testimony yesterday in which he stated that, as an actor, the special contribution that he was expected to make to the Communist Party was to use his talents by entertaining at Communist Party functions? Did you hear that testimony?

MR. SEEGER: I didn’t hear it, no.

MR. TAVENNER: It is a fact that he so testified. I want to know whether or not you were engaged in a similar type of service to the Communist Party in entertaining at these features.

(Witness consulted with counsel.)

MR. SEEGER: I have sung for Americans of every political persuasion, and I am proud that I never refuse to sing to an audience, no matter what religion or color of their skin, or situation in life. I have sung in hobo jungles, and I have sung for the Rockefellers, and I am proud that I have never refused to sing for anybody. That is the only answer I can give along that line.

I’m not going to write a full blown obituary for a 94-year-old man with a full life in the public eye. You can read any number of them circulating on the web in news reports. But this is a law blog, so I choose the legal angle. And from my standpoint, that means using words and symbols in order to argue a point.

PeteSeegerBanjoInscriptionAbove any one particular political position he held was the pursuit of non-violence and that people should talk to each other. The inscription on his banjo read:

This machine surrounds hate and forces it to surrender.

Back in 1979, the late Harry Chapin — one of many, many singer-songwriters he influenced — wrote a tribute to Seeger called Old Folkie, that you can find on YouTube, that starts like this:

He’s the man with the banjo and the 12-string guitar.
And he’s singing us the songs that tell us who we are.
When you look in his eyes you know that somebody’s in there.
Yeah, he knows where we’re going and where we been
And how the fog is gettin’ thicker where the future should begin.
When you look at his life you know that he’s really been there.

Americans of all stripes have much to be grateful for in the Seeger lessons. Because free speech affects all of us, regardless of political bent. It’s worth repeating, from his 1954 testimony before the House Un-American Activities Committee:

 I have sung for Americans of every political persuasion, and I am proud that I never refuse to sing to an audience, no matter what religion or color of their skin, or situation in life. I have sung in hobo jungles, and I have sung for the Rockefellers, and I am proud that I have never refused to sing for anybody.

Justin Bieber Sued By Lamborghini for Defamation


Bieber and his yellow Lamboghini

Canadian singer Justin Bieber, arrested yesterday for drag racing a yellow Lamborghini against a red Ferrari, was sued this morning in a Florida federal court for defamation. Bieber, and 19-year-old Def Jam recording artist Khalil Sharieff, had been racing their high end sports cars 55 mph in a 30 mph zone.

Lamborghini spokesman Marcello Gandini said the company, which brought the action based on trade libel (disparagement of product), was furious that Bieber had recklessly besmirched its brand. “Really? Driving 55 in a 30 zone? That’s what he does with our cars?”

The legal filing focuses its attention on the damage done to the corporate reputation. According to Gandini, young Lamborghini drivers, apparently unaware that even expert drivers have trouble controlling the super cars,  have a sterling reputation of crashing their high-powered vehicles in even the most basic of driving maneuvers. Like this. And this. And this.

But “racing” a Lamborghini at 55 mph won’t even get the car out of second gear, said Gandini, and such modest driving impugns the reputation of the company for creating exciting and dangerous vehicles.

Bieber’s attorney, S. Greenfield Healey, defended his client’s conduct. “That street has speed bumps. The idea of racing a low-clearance high-end sports car on such a street is perfectly consistent with the conduct of other Lamborghini drivers, and therefore Lamborghini’s reputation was not injured. But the company’s failure to warn on the issue of racing this car over speed bumps may have implications in our counter suit.”

JustinBieberCadillacEscaladeBieber, terrified that his own reputation would be ruined by this incident, and coming right on the heels of last week’s accusation of egging a neighbor’s house, asked the police to also arrest him for drunk driving, smoking pot, using prescription drugs, and most importably, resisting arrest. According to the police report, he said, “I need some street cred.”

WPTV in Miami reports that Bieber was released on bail and proceeded to climb on top of a black Cadillac Escalade to wave to his fans. Then he got behind the wheel to drive off while texting.

(hat tip, Steve Eschenbacher, @Rabid-Sanity)



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