South Carolina: So Long and Farewell (Updated)

The Confederate flag flies at the South Carolina statehouse in the wake of mass murder by a racist. (photo by Sean Rayford for Getty Images, via the New York Times)

The Confederate flag flies at the South Carolina State House in the wake of mass murder by a racist. (photo by Sean Rayford for Getty Images, via the New York Times)

(I’m hijacking my law blog today to publish this letter I’m sending to Gov. Nikki Haley of South Carolina, and others as listed below.)

Dear Governor Haley:

I’ve come down to South Carolina the past 13 years with a group of old college friends for vacation. Hilton Head is nice.

But so long and farewell. We are taking our vacation dollars elsewhere.

The sight of the Confederate battle flag flying full staff at your State House in the wake of a racially based church massacre is just too much. That a symbol of slavery should still be flying at a state capitol, 150 years after the Civil War ended, is not just bizarre, but contemptible and vile.

A photo from a white supremacist website showing Dylann Storm Roof, the suspect in the Charleston, S.C., church shooting. (via New York Times)

A photo from a white supremacist website showing Dylann Storm Roof, the suspect in the Charleston, S.C., church shooting. (via New York Times)

I know that there are some who try to rationalize the use of the flag as some type of cultural antebellum throw-back to a simpler time. But that simpler time was abhorrent for those enslaved.

The empty rhetoric of cultural symbolism from flag supporters is highlighted by the fact that South Carolina had the highest percentage of it’s population in slavery, at a stunning 57%. I would think you might actually care about what their descendants see their government glorifying. There is no justification for waving the flag of slavery in their faces.

Your state will get our money no longer. There are plenty of other nice places we can go to the beach and play a little golf. We need not do it under the fluttering colors of racism.

I know that you think it’s perfectly OK to keep that flag flying, as long as CEOs don’t complain. I know this because you said so in a debate last year:

“What I can tell you is over the last three and a half years, I spent a lot of my days on the phones with CEOs and recruiting jobs to this state,” Haley said. “I can honestly say I have not had one conversation with a single CEO about the Confederate flag.”

So it isn’t about principle for you, it’s about money.

I saw that the victims’ families made a number of very forgiving comments about the killer:

“You took something very precious away from me,”  a family representative for Ethel Lance, the 70-year-old grandmother who died in Wednesday’s massacre, told Roof on behalf of Lance’s loved ones. “I will never talk to her ever again. I will never be able to hold her again. But I forgive you and have mercy on your soul. You hurt me. You hurt a lot of people, but I forgive you.”

I can not even imagine that I would be so charitable. You are very lucky to have such people in your state. It’s a shame you don’t appreciate them.

confederate-flagSince it’s about money for you and not principle, I will send a copy of this letter to the Marriott, where we stay. I want them to know that they have lost our business because of you.

I will likewise send copies to the owners of many of the restaurants that we have enjoyed over our 13 years, letting them know why we will not return. And I will make it available on the web, for the few people that might find it on my blog.

All is not lost for you, of course, as there are likely a number of skinhead, neo-Nazi and white power hate groups that revel in what you are doing. Perhaps they will bring their business to Hilton Head instead, and stay in your fine hotels, eat in your nice restaurants and tee off on your many golf courses.  I’m sure the owners will welcome them with open arms.

–Eric Turkewitz and friends

Update, 6/23/15 — My post went up around 7 am, and at 4 pm Gov. Haley asked the Legislature to take down the flag.  But it still flies, as ⅔ of each legislative house must approve its removal.

So the burden is clearly now at the feet of South Carolina’s legislative branch.  Will the state continue to fly the flag of slavery, segregation and subjugation or not?

I have no intention of bringing my tourist dollars back to South Carolina while it flies.

The First Rule of Lawyering


Since Atilla the Hun lived before the age of photography, I went for the next best thing….

Over at Above the Law, Mark Herrmann was commenting yesterday on ways for associates to screw up. Hermann is a terrific writer, and author of the highly regarded Curmudgeons Guide to Practicing Law that I reviewed in 2008, as well as Inside Straight, a collection of his writings from Above the Law.

But he said one thing in yesterday’s piece that really jumped out at me, as he discussed an article from another site on that subject. And that had to do with a lawyer’s personal demeanor, which I’ve bolded for you since block quotes generally suck:

The folks in the Law360 article did okay. Their six ways for associates to disappoint were: Don’t (1) be visible enough, (2) take ownership of your work, (3) be thorough, (4) be pleasant, (5) know how to talk on the phone, and (6) sow the seeds of business development.

I’m deeming numbers 1 (visibility) and 6 (developing business) to be duplicative and 5 (talking on the phone) to be penny-ante. And, personally, I don’t much care about number 4 (being nice). Maybe I’m out of the mainstream here, but I’m the person who said: “Attila the Hun? Guy’s got a nasty mean streak, but at least he can do his job. Hire him.” I’ll accept an awful lot of personality quirks in exchange for the chance to work with someone who’s smarter than I am and writes and speaks better than I do.

Ugh. This violates my First Rule of Lawyering: Don’t be Attila the Hun.

But why?, I hear some of you cry!  We’re supposed to be tough as nails in litigation and doing everything possible (within the law) to win!

And here’s the issue: During the course of the litigation there will be a time when one side needs an extra day or week for something. And you don’t know if that someone will be your client or someone else.

If your client is scheduled for a court-ordered deposition on October 10, for example, and it happens to be the week she is taking her on a short vacation, or the day of her daughter’s 2nd grade play, you want to be able to pick up the phone and request common courtesies for a new day. So long as there is no genuine strategic issue, that serves the client well.

But if you have been acting like Attila the Hun and thought you were being a good lawyering by denying even small courtesies to the other side? Well, guess what?

The other lawyer might tell you to go jump in the lake when the shoe is on the other foot. What goes around comes around. Karma. And all that.

That courtesy might not be granted. To the detriment of your client. Because you thought you could act like Attila the Hun on something in a Take-No-Prisnors litigation strategy.

Keeping a good, working professional relationship with the adversary’s counsel, while still doing what you are retained to do, is often a tough thing. Tempers may flair if you aren’t careful in even the most routine deposition.

This doesn’t mean that the lawyer stops short of arguing his heart out just to be nice, only that there is an art to disagreeing without being disagreeable.

All of this comes home to roost, often, if one side or the other wishes to talk settlement. Sitting down for a cup of coffee with Attila to discuss why a settlement should be more/less may be beneficial to the client, but difficult if someone was acting like a jerk. Sitting down with  a human is much easier.

And that is what serves the client.

A story I’ve told before and I’ll tell again: When I was in law school I watched my father try a medical malpractice case in Brooklyn. He and the other lawyer would go head-to-head in the courtroom, acting within every meaning of the phrase “zealous advocacy.” Then they would grab a cup of coffee together after court.

Best lesson in the law I ever had.

NY Top Court: It’s Still OK To Be Negligent With Your Dog

Not the dog in the lawsuit, but mine. Does Tucker look like he would hurt anyone? Or obey a command to come?

Not the dog in the lawsuit, but mine. Does Tucker look like he would hurt anyone? Or even obey a command to come?

It wasn’t the dog’s fault. His owner called for him in Central Park, and he bolted across the road exactly as commanded. And into the path of a bicyclist. The animal was not dangerous, but rather, was directed to do something that was.

New York has had a long standing rule that held that, for pets, one could only bring a lawsuit under strict liability, if the pet had a known vicious propensity (see: Bard v. Jahnke). Hence the phrase, every dog gets one bite. We didn’t have a common law cause of action based on negligence.

It was all about whether or not that bite Fido took could have been reasonably anticipated. And if Fido had that propensity (either by bite or other aggressive behavior), the owner was responsible no matter what.

Would this case change things? Our high court had already ruled in Hastings v. Suave that the owner of a cow that innocently strays past a dilapidated fence into the road could be held liable. Why not a dog? This isn’t about the animal, but about the owner.

I discussed back in 2013 how this case — alleging only negligence and not strict liability — was headed to the Court of Appeals when a divided panel of our Appellate Division (First Department) ruled that the case could go forward. It was time, I guessed, for our archaic and unfair law to be updated.

At that time I ventured a prediction:

My prediction: New York’s long-held policy of granting immunity to animal owners for their own negligence (as opposed to the animal’s viciousness) will fall by the wayside as illogical.  Immunity for negligence makes no sense at all, and is something that only a legislature can grant.

I was wrong. New York’s Court of Appeals today re-affirmed in Doerr v. Goldsmith that owners were still free to be negligent with their pets; owners get immunity from negligence.

The opinion is quite short. But there is a lengthy concurrence and two separate dissents.

Judge Abdus-Salaam thought it necessary, in concurring, to discuss at length the two cases before the court (the other, Dubinsky v. Lockhart, also dealt with loose dogs hitting a bicyclist, and alleged both negligence and strict liability). She started with our jurisprudence going back 200 years, when bites were the only issue in a rural society where the fastest mode of travel was a horse.

But despite her lengthy analysis — which includes the history of our pets being able to roam free on the streets and the expectations of others that this would occur — her opinion did not speak for the majority. She argues, unconvincingly in my opinion, that:

“[t]he average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received”

Frankly, if I were walking on the streets of the city, I would not expect an unrestrained pet. We have leash laws, you know.  It’s like saying you should expect drunk drivers on the road, and therefore there is no liability for the drunk running the light because you should expect drunk drivers.

And so we get argument for a one-size-fits-all rule regardless of whether you are in the nation’s biggest city or one of our many rural hamlets.

In arguing for the retention of the easy-to-follow rule of granting immunity that comes from our prior agrarian society, she writes:

In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time.

Well, “unjust” would certainly seem to fit these circumstances, but I’m not on the bench.

Chief Judge Lippman, in dissent, notes this about the existing rule that he fought to change:

…application of the rule in this instance would serve only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident.

Yep, that is it, immunity for tortfeasors. A concept that is generally foreign to our common law jurisprudence.

And this, regarding the defendant-owner deliberately setting in motion the chain of events:

…people expend significant amounts of time and effort, and sometimes go to great expense, in an effort to train their dogs to be obedient.  When those efforts are successful and the dog acts according to the owner’s command, that is not a vicious propensity, but should not necessarily result in the owner’s immunity from liability.

Judge Fahey also dissented, and noted that our common law jurisprudence is pretty good, that there is a long line of cases going back over 100 years to support a negligence cause of action against dogs, and that there doesn’t need to be this exception:

We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. I cannot join the Court’s memorandum opinion and I disagree with the analysis put forward in the concurring opinion

So this is the rule in New York: If a farm animal wanders off because of the negligence of the owner, the owner can be held negligent. But if the animal is a pet, the answer is the opposite.

Welcome to New York.

Jury Selection, Brooklyn Style

Brooklyn’s county courthouse, 2008. Photo credit: me.

Two recent articles in Reason by its Editor in Chief, Matt Welch, raised issues about New York’s jury selection process and are very much worth discussing. Welch, as you’ll see, didn’t find the experience as amusing as my screenwriter-brother, or get any of the hoped-for excitement that my niece Ellen wanted, and certainly didn’t appreciate it the way I did when I sat jury duty many moons ago (and was selected).

So on to the main event: Welch. When I first read the first of his two articles in his libertarian oriented magazine, I was ready to mock, parody and lampoon his never-ending stream of whines, complaints, grumbles and gripes. That was my gut reaction, and it was going to be fun.

But there was one big point he made and one big point that he botched, and both are deserving of attention.

First, his take on the selection process: He bitched, whined, moaned and complained about the Brooklyn courthouse architecture, the dirty plaza in front, the security, and the ever-so-slow orientation and waiting to be placed in a voir dire pool to be questioned by lawyers. (How Jury Duty Almost Turned Me into an Anarchist)

When he finally gets there, he sounds like Arlo Guthrie showing up to his draft board after a long night of drinking — prepared to be injected, inspected, detected, infected, neglected and selected. In meeting the lawyers for the case, what type of mind set do you think he started with?

Is this stuff important, or just superficial belly-aching by someone looking for material to write about, as he did in his book about similar issues?

Answer: It’s important!! You don’t shoot the messenger because you don’t like the message.  He made a valid point that some jurors may be poisoned by the process itself, even before actual selection started. Anyone who practices law in Brooklyn knows we need vastly more room and judges.

And court administrators should take note, to the extent that they have the capacity to actually do anything about it within the tight financial constraints that the Legislature imposes.

Subway art, Borough Hall station where the courthouses are. Photo credit: Me.

Wouldn’t everyone — jurors, lawyers, judges, clerks and officers — rather be inside that great, big, new, shiny federal courthouse down the block? You betcha. It’s vastly more civilized, and jurors don’t start the trial phase, if they get there, feeling abused. The building itself, and the federal administration of it, oozes competence and justice (much to the chagrin, likely, of criminal defendants).

And feeling abused is important, for then the aggravations and irritations of the process itself may simply confirm pre-existing biases to the detriment of one side or the other.

Confirmation bias is a huge issue to deal with in jury selection (and the issue Welch botched). Because many people instinctively look for facts to “prove” the thoughts they had before hearing evidence, or reading a news story. They want to know that their opinions were “right.” This is most commonly seen in politics, where everything  on “the other side” is wrong.

Welch states that he wants to do the right thing, claiming near the outset of his piece:

Jury duty is a chance to bond with fellow citizens you might not otherwise meet, peek under the hood of our flawed judicial system, and do our small part to advance the noble democratic ideal of participatory justice.

And he also writes, in his own defense that:

…I would also say that within libertarianism there’s a broad appreciation that the civil system provides the kind of redress unavailable in places like Western Europe, for example. And at any rate, I don’t have strongly held opinions about it; my strongly held opinions are about the criminal justice system.

But when I look under the hood of his writings, in just these two pieces, I see a pre-existing proclivity, and the concern any lawyer would have for potential confirmation bias if he were to sit in judgment. Describing the case as he first hears about it in the jury selection room, he writes:

It is, to my chagrin, a civil trial, not a criminal one, involving the category of incident one might see advertised in a subway car.

Ouch. OK, he is entitled to his opinion for sure, regardless of whether I like it or not. But it’s hard to miss the underlying bias.

In his second piece, entitled How Lawyers Pre-Try Cases During Jury Selection, he tries to claim the voir dire process (and the jurors) are abused by the lawyers trying their cases in the room without a judge or evidence.

And he continues his complaints by dropping another clue as to his underlying feelings, calling plaintiff’s counsel a “Court Street Lawyer” with a link to a derisive description.

Moses with the law, at the entrance to the Brooklyn courthouse. 2008. Photo credit, me.

Now the vast majority of people will say, and likely believe, that they can sit fairly and listen to evidence, if the question is put to them directly. But this is a very superficial question, and ignores the underlying biases a juror may have. And that, in turns ignores the very legitimate concerns that such jurors will engage in confirmation bias as they listen to the evidence. This is what the trial lawyer needs to worry about, regardless of who they represent.

Welch himself knows about confirmation bias. On just the 4th page of his book The Declaration of Independents, he writes with co-author Nick Gillespie:

You may have heard of confirmation bias, whereby people tend to notice and believe whatever rumors, news stories and quasi-academic studies confirm their world view.

But seeing it in others is altogether different than seeing it in the mirror.

It was during that second piece, that he argued that the lawyers were looking to get rid of all the potential jurors with expertise. But this is not what trial lawyers do. We look to get rid of those with deep-seated biases, because we worry that such people will simply look for evidence during a trial to confirm them.

One example of what Welch thinks is an attempt to argue the case in the jury selection room and condition the jurors is the common question trial lawyers ask when talking about money and damages, “If you thought the injuries were substantial would you hesitate to bring back a substantial verdict?” But I (and so many others) ask it because I want to know about a political bias — do they have any feelings about one-size-fits-all damage caps? I would consider that information to be pretty important. So would my adversary.

And the reverse is also true when discussing the issue of damages, and is also asked: If the plaintiff shows only minimal injuries would you have any problem bringing back a minimal verdict? I’ve yet to meet a defense lawyer that is a potted plant. (The wise plaintiff’s lawyer asks both questions – asking about both the substantial and the minimal.)

Another example of bias are potential jurors who work in the medical field, sitting in a medical malpractice case. Are these people automatically excused due to their expertise?

Some would be inappropriate due to subconscious concerns about what their co-workers would say if they brought back a plaintiff’s verdict. It’s the lawyers job to ask about that bluntly and make the juror ponder it.

Yet others might acknowledge that they have seen all manner of bad things happen in a hospital. So dumping medically educated jurors or keeping them could go either way.

And more important than the medical practitioner is the parent of one. For now emotion/bias is even more likely to be a factor as the lawyers fear this juror seeing their own kid as a defendant.

Thus, Matt Welch’s two Reason articles are useful: Useful in describing the oft-times miserable experience that some jurors have, so that court administrators and legislators that hold the purse strings can address them and so that lawyers can appreciate what these potential jurors have gone through before the first questions are even asked.

But it is also useful in ways Welch might not have appreciated, as a good example of seeking out the underlying biases that potential jurors might have, and addressing head-on the concerns about them engaging in confirmation bias as they listen to the evidence.

Addendum: As I re-read this piece this morning while sitting in that same courthouse, just after publishing, I remembered I had written back in 2008 about the highly scientific method that I use for jury selection: Who Sits Jury Duty? (The Turkewitz Beer Test)


Snarking at Others – A philosophy

Blogging-703621It may have occurred to some readers that I take others to task over various foibles or ethical issues a bit too often.  Maybe, but that snark has some pretty sharp limits and I want to briefly explain them.

If the story deals with someone acting or filing suit in such a way that indicates the person might not be in their right mind — like the recent suit by the an individual acting on behalf of God, and His Son, Jesus Christ against all homosexuals — then I don’t write about it. (Except just there, but without name, or link, because I need an example.)

You see this in pro se suits with some regularity. In a nation of 300 million people and a country that (usually) takes pride in keeping the courthouse door open to those who believe they’ve been aggrieved, this shouldn’t come as a surprise.

While such stories may be amusing to many, I don’t see them serving any larger purpose. It isn’t just being politically correct regarding  someone that may well need a mental health professional, but that the anecdotes serve no broader purpose. There is no lesson to be learned.

On the other hand, if the targets of the stories are lawyers or other individuals who are capable of fending for themselves, I see no problem, so long as there is a point to be made.

That’s it, my philosophy as to who I think it’s fair to target and who not.

Chasing the Amtrak Crash


Dean Weitzman from “My Philly Lawyer”

You have seen this act before, dear reader, but perhaps never so blatantly. It’s the lawyer who chases the mass disaster crash, a/k/a the ambulance chaser. It’s the lawyer that, by doing so, smears the names of all others in the lawyering profession.

Today’s story comes up because Dean Weitzman, managing partner of the Philadelphia firm Silvers, Langsam & Weitzman, decided it would be a swell idea to send out a press release to the local press letting everyone know that they would be accepting cases from the Amtrak crash. (Which is not an “accident” by the way).

He wrote, among much personal agrandizement, that is firm would be:

available to provide representation for victims and injured persons in last night’s Amtrak derailment in North Philadelphia.

Gee. Ya’ think?

And he also wrote that:

Dean Weitzman is also available to media outlets to give analysis and discuss what happens next.

The firm is, as I understand it, (in)famous for slathering Philly with its ads, using the moniker My Philly Lawyer.

It was exactly this type of grotesque chasing after cases that led New York to create its 30-day anti-solicitation rule (and I presume to a similar federal 45-day rule for airline disasters). In the immediate wake of the 2003 Staten Island Ferry disaster that killed 11, some lawyers ran to the Staten Island Advance to place ads for the next day.

But there were still bodies on the boat when many of them did that.

This type of wretched behavior has repercussions.  I see it when I step into the jury room to select, as do others in the profession.  Calling the jury pool cynicism deep would be an understatement.

If the cynicism came solely from insurance company propaganda, it would be one thing. But when the smear comes from your own ranks, then what? Then it becomes the obligation of others in the profession to express their contempt for the practice and issue a complete disavowal of the conduct.

Let there be no mistake about my position here: Dean Weitzman and the firm of Silvers, Langsam & Weitzman do a grave disservice to the cause of justice and to those who have been injured. By chasing ambulances in this fashion they perpetuate an ugly stereotype, whose ramifications are felt not only by members of the bar but more importantly by those we represent.

As I noted back in 2009 in a short analysis of anti-solicitation rules, they do work. In honor of the chasing that Weitzman is doing, it looks like time for Pennsylvania to follow suit with an amendment to its rules.

Since Dean Weitzman said he was “available to media outlets to give analysis and discuss what happens next,” I’ve sent him an email seeking comment about the appropriateness of sending out such an email within 24 hours of the crash, when all of the passengers aren’t even accounted for. If he elects to respond I may amend this post.

(Hat tip, Max Kennerly)


Lawyers and the Press. Again

GellerLawGroupI hate to pull the stuffings out of this article from the New York Times about women lawyers trying to manage both family life and a solid law practice. It was a lovely, fluffy piece of lifestyle journalism.

The women at the Geller Law Firm, it seems, have based their practice around making sure that they don’t lose sight of the other important things in their life, also known as children.

To do this, they cut back on hours, or make them really flexible, work from home or temporary offices, and focus most of the practice on non-litigation matters such as trusts and wills and small business incorporations. And “[T]he partners limit their litigation business because court appearances and filing deadlines mean less control over their schedules.”

According to the piece:

the founding credo of which is family-friendliness and whose stance on office face time is best described as “militantly against.”

You know what? If they can figure out a way to make the model work, then more power to them. If a group of people, for example, only want to work 30 hours a week, and take home less pay and have fewer clients, no problem.

So long as the clients aren’t affected.

But the article needed a little color. Someone decided it would be nice to have an actual client involved in the cuddly, little piece.

The problem with including a client, of course, is the risk that something will be said about an actual piece of litigation, so you would expect something very benign, such as “I think they are awesome and have no problem with the limited hours and they always get back to me when I call and they are awesome, and I said awesome twice because I really, really think so.” You know, like that.

But that is not what happened, so this is where the stuffings get pulled from the sweet teddy bear of a feature piece.

This part just leaped off the page at me, as confidential communications were exposed in front of the Times reporter:

By 10 a.m. on that Wednesday in March, Ms. [Maria] Simon was seated in front of a client, formerly the president of a condominium association that was now suing him. (The client gave me permission to sit in on the meeting.)

Ms. Simon began to review each count of the civil complaint against him, MacBook open and legal pad at the ready. She had a litigator’s game face that was only occasionally undone by a wry smile she couldn’t quite suppress.

“I have to ask,” Ms. Simon said at one point. “Did you ever falsely represent yourself as an attorney?” The client explained that he had once told a local agency that he was appearing before it as an attorney but that he had meant it “in the British sense,” in that he had power of attorney. “You know you’re not supposed to say that, right?” Ms. Simon deadpanned.

“Yes, lesson learned,” he said.

For the non-lawyer readers, let me explain. What lawyers and clients say between themselves is privileged. But when a third party, unrelated to the law firm, comes into the room, the privilege evaporates. Gone. Up in smoke. At a deposition opposing counsel can ask about every single thing that was said in front of this other person.

Lawyers see this potential problem with some regularity, though not with reporters as the third wheel. Often a friend will accompany the client to the office. And when that happens, it’s the job of the lawyer to exchange pleasantries with these friends and explain to them what a privilege is, and why they can’t come into the conference room, and offer them coffee and a newspaper as they sit in the waiting room.

Why the lawyers at Geller decided it would be wise to have a confidential meeting in front of a reporter is utterly beyond me. And why the lawyer would ask in front of a reporter, “Did you ever falsely represent yourself as an attorney?” is simply bizarre.

Saying that this was not a well thought out interview from the lawyer’s perspective is, I think, a significant understatement.

This is not the first time I’ve written on this subject, where it seems that the desires of the lawyer for press have superseded the best interests of the client.

We saw this just a couple weeks ago with South Carolina attorney David Aylor, who was representing police officer Michael T. Slager, who happened to fire 8 shots toward the back of Walter Scott, killing him. Aylor didn’t just jump ship after seeing the video, but worse, told the world just hours later that he was jumping ship after seeing the video. Because apparently Aylor comes first, not the client.

And we saw this a few years back with Chicago criminal defense attorney Stuart Goldberg, who interviewed with Lindsay Lohan about representing her, and then opened up to People magazine about her “fragile” state. But confidential means confidential.

What should the Geller client expect? That his admissions in front of his lawyer may now be an issue, that everything said in front of the lawyer is no longer confidential, and that the lawyer might actually now be a witness to the admissions, and be unable to handle the matter due to a conflict.

That is one hell of a mess, if you ask me. And I don’t know how anyone can say it benefits the client.

This isn’t to say that all client interactions with the press are bad. But going into them, there must be long and thoughtful discussions about exactly what is fair game to speak about, and what isn’t, and how/why it helps the client.

I reached out yesterday by email to the lawyer involved and she did not yet get back to me.


What’s a Bar Mitzvah? (Asks the judge…)

Bat Mitzvah - Masada 1

A young lady becomes a bat mitzvah in Israel after hiking up Masada.

When a judge writes a decision trying to figure out what, exactly, a bar mitzvah is, someone ought to take note. Especially when he uses an old Hasidic parable in order to render a decision. And given that no one has yet brought this November decision to light, it seems that it’s up to me.

The six-page decision comes out of Rye City Court, a small claims court in suburban Westchester County, not far from where I live. And the judge noted that, while the court’s jurisdiction was somewhat limited, it doesn’t mean that it can’t wrestle with “geo-political issues, gender conflicts or theological dilemmas.” And not only that, but in addition to contract law issues, the court was “presented with the question of what is prayer and who decides what prayer is appropriate.”

Yeah, that does seem like an awful lot to ask for small claims court. But at its core, Judge Joseph L. Latwin had to decide who wins a contract dispute, when training a young man to be become a bar mitzvah is the subject of the contract. That training revolves around learning to read Hebrew and learning the prayers associated with the service in which the kid will participate after he turns 13.

In Zyngier v Lurie, the claimant is the father of the boy preparing for his bar mitzvah service, and sought a refund of the downpayment for bar mitzvah lessons/training. The defendants are a rabbi and cantor who were teaching him, who have counterclaimed for the work that they performed. They were eight months into the training and just six weeks from The Big Day, when trouble erupted.

The problem was that the parents didn’t like parts of the service that the rabbi/cantor said needed to be done. Specifically, they objected to two English language prayers, one for the United States and one for Israel.

Why object? The mother is Lebanese-Christian and lost family in wars with Israel. The father is Brazilian (and presumably Jewish). Thus, there was no ancestral tie to the U.S., and the mother was uncomfortable with the prayer for Israel based on her personal history.

And there was a third issue — I did write, after all, that gender conflicts were part of this. The prayers that were being taught were egalitarian in nature. Thus, a central prayer in the service that is devoted to honoring the patriarchs (Abraham, Isaac and Jacob) now also includes in some of the more liberal synagogues the corresponding matriarchs (Sarah, Rebecca, Rachel and Leah).

The problem? The mother of the bar mitzvah boy wasn’t Jewish and the parents didn’t want to highlight this fact by including the matriarchs, and they wanted the prayer omitted.

Oy! What’s a judge to do? And the answer? Bring up an old Hasidic parable, of course, one that is often used to illustrate the essence of prayer. Isn’t that what you would do?

In this story, a young shepherd boy that doesn’t know how to pray finds himself in a synagogue on a holiday. Since he doesn’t know how to pray, but really wants to, he whistles his prayers to God. But while chastised by his father, the gates of heaven burst open. Because, the story goes, it wasn’t the specific words or form of prayer that were important, but the sincerity and spirit behind them that actually mattered.

The court then observes that:

The Court is aware that there is no biblical prescription of what prayers are required to be said at a bar mitzvah service. Other than the prayers before and after the reading of Torah and Haftorah, none of the prayers are mandatory, although many traditional prayer are bible based and overwhelmingly offered. A congregant from New York could likely walk into a synagogue anywhere in the world and not find much variation (except that translated prayer would be in the native language, not necessarily in English). Virtually the same prayers would be said in virtually the same order. This is a matter of tradition established over the 5775 years.

This Court is not the proper forum, nor is it capable of determining what prayer anyone should say or how it is to be said. The Court has little insight as to whether certain words, heartfelt whistling, or other mode of communication will find favor with any particular deity. That is better left to theologians. Nor will the Court impose any prayer regimen on either the claimant or the defendants. That is their personal choices – not an issue of secular law.

Masada Bat Mitzvah

Hoisted in the air in celebration, post bat mitzvah service.

But things do change. There was no prayer for the United States as part of the service, for example, until recently, and you wouldn’t expect a synagogue in Brazil to use it.

And the adding of matriarchs is not only recent, but only observed in some congregations. Judge Latwin knew that he couldn’t be placed in the position of deciding which prayer was proper and which was not. We still have that separation of church and state thing going on, even when the church is a synagogue.

So what does he do? Basic contact law:

A court cannot enforce a contract unless it is able to determine what the parties actually agreed to. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.

Here, there was no meeting of the minds for what the service was to entail. The contact stated that the defendants were to provide “all liturgical and Torah text for custom prayer book,” which tells us nothing of the important details that were at issue. From the court:

There is no discussion as to whom if anyone has final editorial say on the content of the custom prayer book or how any dispute over the content was to be resolved. It appears to not have been contemplated by the parties and not a part of any agreement between them. Thus, the contract lacks the essential element of a meeting of the minds on this issue and the contract must fail.

And the decision: The defendants rabbi and cantor were entitled to the fair value of the 25 hours that they had spent with the kid up until it was realized that there was no meeting of the minds.

There was no discussion as to whether the young man ever had his chance to participate in the service.

(hat tip to Jeff Stillman)

Boston Marathon, 2015 Edition (Updated!)

2015bostonmarathonToday is the 119th running of the Boston Marathon, one of the truly great road races in the world. While it’s become associated with terrorism in the minds of many due to the bombing two years ago, this is not the way that runners think of it.

The race is, for most of us, a goal and pinnacle. Except for the great elites who will toe the line at Hopkinton this morning, most think of this as a great celebration.  While some get into the race as runners for charity, the achievement for most is simply running fast enough in a prior race to qualify.

I have many friends out there now — as I type they are making their way to the start line and wondering how long the rain will hold off.

And along the route, there are countless parties being readied to celebrate the runners as they go by, for what is a mass event like this other than a great big party?

Is the potential for terrorism in the minds of many? Of course. But they are out there anyway, runners, spectators and volunteers alike.  Those that are out there are not shut-ins preferring to cower. They are the ones celebrating life.

Below are a few pieces I’ve written before about the race (and the bombing). For those who want a peak into the psyche of the runner and what the race is about, here you go:

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) – 2009

The Boston Marathon (Highway to Hell) – 2012

Boston Marathon Bombing (And the Lives We Lead) – 2013

Passover and the Boston Marathon Bombing – 2014


Update: Rebekah Gregory DiMartino, who lost a leg in the 2013 Boston Marathon bombing….ran the closing miles of the marathon today to cross the finish line. Video of her crossing the finish is enough to dent even the hardest and most cynical of hearts.

Enthralled with the Press

DavidAylorScreenGrabDid someone drop an extra dose of stupid in the drinking water of Charleston, S.C., attorney David Aylor?

If the name doesn’t ring a bell, let me attach it to an incident: On Saturday in North Charleston, police officer Michael T. Slager shot dead a citizen of that city, Walter L. Scott. Slager claimed that he stopped Scott for a broken tail light and then shot and killed Scott when Scott tussled for the officer’s Taser.

Aylor was the criminal defense lawyer for the cop, and said he believed that Slager followed the proper procedure.

But then a video surfaced that showed Slager shooting the unarmed Scott as he was running away. It looks like little more than an execution as he shot eight times at the back of the the fleeing Scott, hitting him five times.

Slager was arrested for murder. And his lawyer — Aylor — dumped him.

But Aylor didn’t just dump him. No, sirree. What he did was dump him publicly, thereby implicitly violating the attorney-client privilege and calling his client a liar. Lawyers don’t do that.

Lawyers don’t get hired for the purpose of violating confidences. If Slager lied to his lawyer in private about the facts, that is between client and lawyer, and nowhere else.

In response to being swamped with press calls after the video came out, Aylor could have said two things. First, he could have said “no comment.” Period. End of story.

Alternatively, if he was sick of being bombarded by press calls, he could conceivably have said that a change in counsel was in progress, and he obviously couldn’t say more. No one would know why. There are plenty of reasons for a change in lawyers, and few would think anything of it.

But instead, Aylor gave an interview to the Daily Beast. And after superficially claiming that he couldn’t discuss the matter, then proceeded to piss on the guy that came to him for legal help:

I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.

So there it is, he told the world that

1. He was the one dumping the client; and

2. That he was dumping the client right after seeing the video.

In other words, I think he called his client — to whom he owed a duty as an attorney —  a liar, since the video likely didn’t match the story he was allegedly told. There is no other way I can see this.

And in case anyone might think this was a single, moronic slip of the tongue, he did it again later in the interview:

I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.

So Aylor intentionally threw his client under the bus.

Now his client may be a murderer, and may be a monster and may be all sorts of mean, nasty things about which you will see protests in the coming days/weeks/months.

But the lawyer’s allegiance is to the client that came to him for help. If clients can’t speak to lawyers about problems then they can’t get the legal assistance they need. We have that lawyer-client confidentiality code for a reason. And it doesn’t get violated just because the lawyer suddenly has a reviled client.

Aylor was completely unprepared for the press. When he should have said nothing, he gave this comically contradictory answer to a simple question:

How did you come across the video?

I can’t say where I saw it first. I first became aware of it via the media. In fact, a reporter sent it to me via e-mail.

Did he think that talking to the press was going to be a neat bit of self-promotion so that the could add another little line to his website about all the press he has been in? Methinks that is going to backfire big time, as I think most lawyers are appalled by what he did, and some of them just must might want to write about this.

This isn’t the first time I’ve written about a lawyer disclosing confidentially obtained information in a high profile case. I wrote about this five years ago when one of the lawyers being interviewed by Lindsay Lohan for a criminal defense thought it would be great to get some free press for himself by blabbing to the press about his meeting with her.

Incredibly, there is actually another comic note to all of this. It seems that Aylor put a video on You Tube boasting about being named the top lawyer in Charleston by City Paper (an alternative free weekly).

Don’t ask me how such a stupid survey could be done, but here’s the kicker: Aylor posted that little boast of being best on April Fools Day.


The Unwashed Advocate: an interview to the Daily Beast as an aggravating condition necessitating elevation to Interstellar Capital Dipshittery.

Simple Justice:

What could Aylor possibly have been thinking when the Daily Beast called and said, “talk to us, bro. It’s gonna be sweet!”  The only rational conclusion is that he saw his 15 minutes of fame coming to an end, and wanted to get his brand in there before the name David Aylor disappeared forever.  This was an opportunity to spin his involvement from lawyer for the devil to good guy who wouldn’t be caught dead standing beside the murderous liar.

Noah Feldman @ BloombergView:

[Aylor had] an ethical obligation as a lawyer to defend his client, not to abandon him or harm him by a public act of distancing. Yet in an interview with the Daily Beast, Slager’s lawyer did just that, dropping his client like a hot potato and strongly implying that Slager either had been set on a course of perjury or was simply too repulsive to represent.

It’s hard to avoid the implication that Slager hadn’t told his lawyer what really happened, and that lawyer withdrew at least in part because he thought his client had misled him.

Gamso for the Defense:

OK, yeah he essentially rolled on his client.
Yeah, he violated attorney-client privilege in substance if not in form while denying that he was doing that.
Yeah, he made an ass of himself in public, but that’s what comes from media whoring when there’s nothing to back…
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