November 4th, 2015

Does New Gmail Feature Destroy the Attorney-Client Privilege?

GMail LogoIf you use Gmail, then Google is reading your email. You may not like that fact, but that is reality. It isn’t private.

And for lawyers privacy is a pretty big deal.

Google announced a new feature yesterday called “Smart Reply” where they read your email and suggest replies for you. No, this isn’t coming from the Onion, this is real.

Here is the “problem” as they see it:

But when you’re checking email on the go, it can be cumbersome and time-consuming to reply to all or even some of them. What if there was a way for your inbox to guess which emails can be answered with a short reply, prepare a few responses on your behalf and present them to you, one tap away?

Well, starting later this week, Inbox will do just that with Smart Reply.

OK, next up, their solution:

Smart Reply suggests up to three responses based on the emails you get. For those emails that only need a quick response, it can take care of the thinking and save precious time spent typing. And for those emails that require a bit more thought, it gives you a jump start so you can respond right away.


Google, of course, has long ago admitted to reading your email if you use their service. But they just claim that this is exactly what people expect will happen, and that there is no expectation of privacy. Really.

Now they want to take it one step further, from not only reading your email but answering for you.

Thanks, but no thanks. I’d like my private communications to be just that, private. And by the way, if Google can read your email so easily, so too can the Government.  Just sayin.’

(H/T Nicole Black  and The Droid Lawyer)



October 31st, 2015

This is Reputation Management? (Updated)

Patrick Zarrelli, from his Twitter profile

Patrick Zarrelli, from his Twitter profile

Today, a story. A story of how a lawyer, bitten with critical commentary about him on blogs, made his situation horribly worse by hiring a “reputation management” company. Who proceeded to threaten the bloggers. Who were lawyers. Who are well educated in the First Amendment.

It didn’t work out so well for the criticized lawyer, or the person he thought would be his knight in shining armor. Pull up a chair, this is kinda good and more importantly there’s a good lesson in it, I think.

It starts back in January 2013 when Houston criminal defense lawyer Mark Bennett saw an odd December 2012 press release from Florida criminal defense lawyer Gary Ostrow (Narcissists Who Need Narcissists…), who wrote that he

has firmly stated that he will take on any celebrity criminal case, regardless of the severity of the accusation

Really. I did not make that up. He actually put out a press release saying he wanted to represent celebrities.

New York criminal defense lawyer Scott Greenfield followed (Gary Ostrow’s Important Announcement), starting with Ostrow’s own Onionworthy  headline:

Criminal Defense Attorney Gary Ostrow has recently announced his intention to take on all celebrity criminal cases in the state of Florida, effective immediately.

Yes, yes, yes, he really put out a press release like that. It’s not the Onion and not April 1st.

But in the process, Ostrow obviously didn’t appreciate that just because you write something self-serving on the web doesn’t mean that others won’t mock you for it.

Just as I have an interest in calling on the carpet plaintiffs’ lawyers who do dumb stuff, so too do they do it on the criminal defense side. We all believe that more professionalism in the bar, and less stupidity, is a good thing.

Almost three years pass. Then out of the blue comes Patrick Zarrelli, who gives himself the Twitter handle @KidChronic32. (Were 1-31 already taken?). Zarelli, it seems, has been hired by Ostrow to clean up the reputational mess he made for himself years ago by putting out that dumb press release.

And boy did Zarrelli screw the pooch.

Seeing this unfold was like watching some guy race his car head-on toward a brick wall with a blindfold on, thinking, believing, that some magical power will save him. While everyone outside that car knows what’s coming.

In order to get the old posts taken down, he actually threatened Greenfield, and he threatened Bennett, and then went on to  threaten Florida criminal defense lawyer Brian Tannebaum who, I think was mocking him on Twitter for having stupidly threatened Greenfield and Bennett. There are a couple of priceless voicemail message that Zarrelli left, at those links.

If, dear reader, those lawyer names don’t sound familiar, let me remind you: All three were my co-defendants and clients in Rakofsky v. Internet (I was local counsel, Marc Randazza did the heavy lifting). And all three were quite firm in telling Rakofsky in response to the suit that he should go shit in a hat and pull it down over his ears. OK, maybe those words were mine, but the sentiment was the same. (Greenfield prefers a more subtle response to the stupid threats he’s received over the years: “Bite me, asshole.”)

Gee, what do you think those guys did when Zarrelli threatened? Yep, not only did they put those idiotic threatening voicemails up on the web, but they also detailed the troubled pasts and dubious business practices of these people in the process. (Greenfield: Did Gary Ostrow Hit Bottom? Enter Patrick Zarrelli @Kidchronic32; Bennett: Reputation Management Expert Patrick Zarrelli Weighs In)

For instance, it was pointed out that Zarrelli, on his website pitching reputation management, writes that he will “fight back against poor reviews by flooding the internet with positive reviews of your company.” I think I was being kind by my use of the word “dubious” in the prior paragraph.

And now Techdirt has the story, and by the time I am done typing this up, it might be elsewhere. Oy vey.

OK, story part done, let’s move on to the lesson part. Here is my advice for those that might find themselves in a similar situation.

First, no matter what, don’t threaten.  If the stories are true, or even just substantially true, or merely opinion, you will lose. And the courts have a very broad standard for what is substantially true and what is opinion. In poker terms, the law bloggers are holding a royal flush and you don’t even have a measly pair of twos. Not even a high card. You got nothin’.

The risks of having your bluff called are, shall we say, pretty damn high. And going all-in is going to be catastrophic.

So don’t make stupid and empty threats about filing law suits and bar complaints. Unless you want them to write about you, of course.

Threats are out, out, out. Don’t make them and don’t even hint at them.

Instead, ask to talk to them privately. Pick up the phone. Acknowledge that they have every right under the First Amendment to write what they did.

Almost three years had passed in this story and it’s likely that the bloggers hadn’t even thought of those stories in ages.

Your only hope is to catch a sympathetic ear as you concede you screwed up. It’s the only pitch you have.

And here’s the thing, criminal defense lawyers are accustomed to seeing people screw up.  Folks have troubles in life and do something stupid and find themselves at their doors. Not everyone is a serial felon from the age of 3.

Be polite, ask graciously if they will consider quietly removing or editing the old post. Maybe they will, maybe not, but sometimes a pitch for mercy is the only shot you really have.

Update: From The Lawyerist (Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers):

Trying to get websites to take down pages that make you look bad is inherently problematic, but it’s even harder when your approach is to go around threatening lawyers who are well-known for not backing down in the face of threats….

In order to try to clean up his Internet reputation, Ostrow hired an Internet tough guy named Patrick Zarrelli, who spent yesterday threatening…

From The BeanstalkPatrick Zarrelli: Killer Reputation or Reputation Killer:

…Seriously think that through for a moment. Patrick, much like a lot of other professional marketers, markets himself as an expert. In this case, an expert at online reputation management. In fact, he is so good at it, that he can’t even manage his own, falling prey to three attorneys who up until only a few days ago, didn’t know him at all, and largely, had forgotten about Patricks client, Gary Ostrow….


October 30th, 2015

NYC Marathon and Law (Sometimes)

ASICS ad, 2012 NYC Marathon, photo by my son, then age 10, at end of 2010 marathon

I noted the other day that I had, over the last 9 years, hijacked my blog to talk baseball, even managing to toss some law into the mix. It was my way of celebrating that my Mets were in the World Series.

And today I do the same thing with running because, as it happens, the NYC Marathon is this Sunday, and over the years I’ve also done a slew of running posts, often mixed with law.

This Sunday, if the stars are all properly aligned, I will run the marathon by day in a Mets shirt and then climb to the top of Citi Field at night for game 5 of the World Series. So if you see some guy like that running while waving an orange rally towel, it’s just me trying to have a helluva-sports-kinda-day.

Isn’t that your image of what a lawyer should look like?

Post have ranged from a marathon length Blawg Review back in 2007, to discussions of the assumption of risk doctrine, to the stoopid legalese we often see in waivers, to the circumstances of how I found my face on the side of a bus.

And sometimes, there is no legal angle at all. I just wrote something because I enjoyed writing it. Whether you enjoy reading it is an altogether different factor.

Without further ado, the rest of a round-up of running related posts that have appeared here, some of which actually deal with law:


Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys)

Turkewitz in the News…

Trial Tactics and Race Planning

The Long Blue Line (26.2 Miles of It)

New York City Marathon (Some thoughts and photos)–Updated for Zoe Koplowitz

The Boston Marathon (Highway to Hell)

Did Paul Ryan Lie? (About His Marathon Time?) -updated

Legal Implications for Cancelling NYC Marathon? (Updated)

Twelve Miles To Newtown

Boston Marathon Bombing (And the Lives We Lead)

What Does A Smile Mean? (Updated x2)

Running, Lawyering and The Great Stage

Passover and the Boston Marathon Bombing

Boston Marathon, 2015 Edition (Updated!)





October 27th, 2015

Talkin’ Baseball — and the New York Mets

Michael Sergio, after he fell from the upper deck at Shea Stadium during game 6 of the 1986 World Series.

Michael Sergio, after he fell from the upper deck at Shea Stadium during game 6 of the 1986 World Series.

Over the years, I’ve hijacked my law blog to talk baseball on occasion. Why? Because I can. It’s my blog and I make the rules.

The first time I did it, I discussed the Supreme Court’s fantasy baseball team and the problems they had on recusal when a fantasy baseball case came before it.  I candidly admit it was great fun to write that post.

The Mets take the field in 30 minutes for the World Series. The last time they won, in 1986 against the Red Sox, I was at all four games in Shea Stadium.  It isn’t as easy to sneak in as it used to be (statute of limitations has passed, thank you very much) but I do have legit tickets for game 5 on Sunday, assuming there is a game 5 of course. (My game 6 tickets against the Cubs went unused due to the sweep.)

Without further ado, Talkin’ Baseball on a personal injury law blog (feel free to cue up the music as you read):

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

False and Misleading Headlines (Youth Baseball Edition)

April Fools’ Day Quiz, Justice Alito, and Baseball

25 Years Ago Today — Game 6, 1986 Wold Series

Opening Day – An Interview with 1986 Shea Jumper Mike Sergio

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


October 21st, 2015

The Kool-Aid Drinking Lawyer

Helene Blank

Helene Blank

Even though Helene Blank has tried cases for both defendants and plaintiffs, and has been doing so since 1979 in roughly 130+ trials, and lectures widely, she is still stunned by what she sees.

She last appeared here in a good rant about bad faith and insurance companies.

She guest blogs today on lawyers that have surrendered their objectivity, and with it their ability to actually assist their clients…


Kool-Aid drinkers to a plaintiff’s lawyer are defendants’ lawyers who, no matter how stark the evidence that the plaintiff is seriously injured, refuses to believe it and does everything they can to make sure your client isn’t properly compensated for their injuries. The insurance company must be protected from really hurt people at all costs.

I always thought the true Kool-Aid drinker was really a mythological beast not any more real than Bigfoot, Yeti or a werewolf. That was until last week.

I ran into a defense lawyer I hadn’t seen since we tried a damages only case of a client of mine who was irreparably and horribly injured from the accident caused by her client. This poor, sad soul developed what is known as RSD or CRPS – which stands for Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome — the people who have the true misfortune of getting this call it CRAPS — ’cause that’s what your life becomes, crap.

This syndrome happens to an unlucky person after an injury, their brain just goes haywire – and the affected limb is in constant unending pain. You become hypersensitive. You can’t be touched, you can barely wear clothes, you can’t use the limb, and it atrophies or wastes away.

This poor soul had even worse misfortune when the CRPS jumped from his left arm to his right leg — a not unknown phenomenon for these poor people.

His life as he knew it was ruined. He couldn’t sleep in a bed, be touched by another human, not his wife, not his children. He had a pain pump inserted into his spine in the hopes of gaining some relief.

He routinely begged his doctor to cut off his arm. If only it were that simple and such a barbaric act would cure him. Too bad, but it wouldn’t.

He was unable to really walk and he couldn’t use the affect arm to do much of anything.

The defense had him examined twice by a wonderfully credentialed doctor from one of the best hospitals in the world – the Hospital for Special Surgery. After each exam, this doctor reported that it was his opinion that my client did indeed suffer from RSD/CRPS.

But they never produced that doctor for the trial.

Instead, they hired for trial what plaintiffs’ lawyers in gentle circles call “a witness for hire” to testify that my client did not suffer from this. A witness who spends her career traveling the country testifying against injured victims who suffer from this. This doctor never once examined my client and completely discounted the defense’s medical exams. But okay –I know that’s what defense lawyers do. It’s their job to try and get the best possible settlement for their client.

I understand that, really I do. I was once one of them. But my encounter with this adversary last week so saddened me that it’s hard to get out of my mind.

After we exchanged niceties, she actually said to me:  your client, he’s out somewhere partying with all that money he got and he has finally taken that bandage off his arm. A “bandage” that he wore constantly to protect himself from human touch which he found excruciating.

I was shocked. Truly, absolutely shocked. This seemingly intelligent woman, who had all the truth in front of her during the trial, really drank the Kool-Aid. She just simply refused to believe that this poor man was so badly hurt.

I answered that she must be kidding. Did she really truly believe he was a fraud?

She actually said yes, and said she regretted not doing surveillance on my client. I told her that so did I, if for no other reason than I could have used the footage against her client because all she would have seen was what she saw in court. A beaten, hurt human being whose life was destroyed.

Her bizarre response to that was this made her feel better. It all made me feel so sad for this lawyer whose humanity was somehow lost along her way. It made me realize why I stopped being a defense lawyer a long time ago. I never was going to lose my humanity for any insurance company.