The WSJ Rips Me Off — Now What? (An Open Letter)

Turkewitz - Wall Street JournalTo the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here.  It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1.  It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2.  My, oh my, you certainly copied a big chunk of my piece, didn’t you?  A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3.  Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4.  Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important —  because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem.  We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post.  You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you.  I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

WSJ-TurkewitzWSJ-TurkewitzWell, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if  you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. - I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.

Will Google Cars Eviscerate the Personal Injury Bar?

GoogleSelfDrivingCar-642x500

Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.

But.

The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me  —  “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced.  (Likewise reduced will be the need for  trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See  The Google Car Is A Huge Threat To The Auto Industry (Business Insider)

 

Dr. Katz Defamation Case Against Me Gets Chucked

DrMicheaelKatz-Pinocchio

Justice Hart’s opinion of Dr. Michael Katz

Ahh, the sweet smell of victory. Not that I ever doubted it. But it is nice to see this over so quickly.

So. You remember that idiotic defamation case against me by New York orthopedist Michael Katz? He was the one that was called a liar by Justice Duane Hart over and over and over and over and over again. The one that dealt with his testimony during a medical-legal exam, where he said it was likely 10-20 minutes long but a surreptitiously made video showed that the actual examination part was only one minute and 56 seconds?

Yeah, that Dr. Katz.

And then he sued me for reporting on what transpired in the courtroom? Yeah, that lawsuit. (See also, opinions on suit by Scott Greenfield and Marc Randazza.)

Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern.

Why was it chucked? Well, it seems that reporting on what happened in a courtroom is fair game. We have those law thingies that protect us for that. Specifically, New York Civil Rights Law 74, which reads:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.

Oh, that law.

Citing to Dr. Katz’s own complaint, which sets forth ad nauseum all of the eviscerating comments Judge Hart made about Dr. Katz being a liar, Justice Kern dismissed the case for failing to state a claim. In other words, we accurately reported what transpired in court, that Justice Hart called him a liar, ergo it’s impossible to make a claim.

Dr. Katz also conceded that Justice Hart threatened to report him to the District Attorney to investigate perjury, the Office of Professional Medical Conduct to investigate action against his license and to the the Administrative Judge for potential civil contempt.

And when I use the word eviscerating above, I am quoting Justice Kern on page 3 of her decision. Katz Case Chucked

Specifically, Judge Kern held that I, and my co-blogger for those posts Samson Freundlich, were immune from suit because the comments we made here were  “fair and true reports of Justice Hart’s findings and assertions made during the course of the proceedings.” (p. 9)

And I kinda liked this quote:

Indeed, a side by side comparison of the posts, specifically the statements identified by the plaintiffs in their complaint, with the proceedings transcripts…clearly reveal that Turkewitz and Freundlichs’s reports of the proceedings accurately reflect Justice Hart’s statements.

The court next addressed those statements that were not facts, but opinions. And you know where that goes, don’t you? Chucked. They are “nonactionable as they are constitutionally protected assertions of opinion.” (p. 10)

Two quirks to the opinion that might interest others: The court held that the standard for suing someone for comments on the Internet is higher than if the comments were made in a “physical official publication.” Because Internet.

Second, I thought I had a very strong case to have the lawyer and law firm sanctioned, since there was no colorable way they could succeed. Katz conceded in his very own complaint that Justice Hart made those lacerating comments about him. Yet the court, without discussion, simply denied my motion for sanctions. If Dr. Katz is dumb enough to appeal, I will press the point again.

All in all, every time an idiotic defamation case against a blogger gets tossed out, it’s a good day for free speech.

Now if only we could do something about our judiciary’s deep reluctance to sanction clearly frivolous lawsuits…

Being a Witness Isn’t Easy (My Turn To Be One)

Pedestrian KnockdownI’m going to start this piece in New Rochelle where I recently saw a pedestrian knockdown. I’ll end at the University of Virginia discussing a now (in)famous rape story reported by Rolling Stone. I hope to make it there in one piece.

On Friday night I became a witness. It was dark. It was raining. The pedestrian who came into contact with the vehicle in front of me was wearing dark clothes and wasn’t in a marked crosswalk.

You can see him here lying in the roadway in this photo I took a few minutes afterward as we waiting for the police. The two people standing on either side of him in the headlights were Good Samaritans trying to make sure he wasn’t further injured by another car.

We were both making left hand turns onto this divided road.

Why blog about this? Because witnesses are important in cases, civil or criminal. Lawyers question witnesses all the time, to get information or dissect fact from fiction.

And as I reflected on what happened, I could hear the me cross-examining myself in my own mind over this incident.

And the funny thing is, I would struggle to answer many of the questions. One reason is that, before the accident happened, I had no reason to “remember” that which was ordinary.

An example of a typical question asked of a witness in this plain-vanilla incident — and I call it that because there was no crime involved nor life-threatening trauma:

When did you first notice the car in front of you (that came into contact with the pedestrian)?

Answer: How the hell should I know? Because until something “different” happened, there was no reason to notice in the sense of discriminating that one car from any other car. When we drive we certainly see that there are cars near us so that we can avoid collisions, but unless one of the cars sticks out as “different” — perhaps a 1950s white Cadillac with big tail fins — we don’t really notice in the sense of looking at it with a view toward detail.

And when something does happen — in this case the car in front of me running over the foot of the pedestrian — we are so stunned that something has happened that we don’t sit there cataloging in our mind that which we’ve just seen. It’s more like, holy crap, did that really just happen?! The “story” is almost like fragments in the brain since we weren’t looking for it to happen.

Then comes the time of reconstruction in our minds when we try to fit all the pieces together. And I think reconstructing is a better word than remembering, as we start to use circumstantial evidence to put the story back together in our brains. So, for example, I didn’t notice the other car as I waited at the light to make the turn that resulted in the pedestrian being hit, but I know in hindsight that, since I was directly behind the red car at impact, I must have been directly behind her moments before waiting at the light.

Frankly, if I hadn’t snapped that picture you see here, I wouldn’t have even remembered the color of the car. Or the clothes the people were wearing. These things might have been right in front of my nose, but because they were “normal” they were unmemorable. Yet witnesses are asked to remember such details.

In addition, my ability to recollect is colored by the my own experiences: that of personal injury attorney. Who was at fault? A doctor behind the wheel may have observed (or remembered) different things that I did. Perhaps a tailor would seen yet different things about the people.

And no doubt the view of the incident differs further from the perspective of the pedestrian, the driver, and the two Good Samaritans. Like the old Japanese movie Rashomon — which should probably be required viewing for any trial lawyer — we all see different things from our own perspectives. This is neither good nor bad; it just is.

Now lets take this one step further, because I was a mere witness that was not directly involved, unlike an incident I wrote about 7 years ago. (Or at least I wasn’t involved Friday until the other driver backed into me as she rolled back off of the guy’s foot.)

I didn’t have my heart racing as an actual participant. I was not stopped dangerously on a bridge. There wasn’t a massive surge of adrenaline that shot my nervous system into overdrive. But if I was actually involved or in a dangerous spot? That would have surely have effected my mental state and made the act of remembering different.

And if I was the victim of a violent crime, then what? There’s a pretty good chance things would become even stranger to remember if the assault was sudden, as my mental state would be significantly altered. Whether it would be sharper or more confused, I don’t know and I hope not to ever find out.

Throw drugs or alcohol into the mix, and now what? Reconstructing could become even more complicated.

Remember, my event on Friday night should theoretically be  relatively simple: I’m not directly involved, not assaulted, without any artificial impairments. But it isn’t.

Criminal defense lawyers, of course, deal with these issues all the time, not just with the nuanced facts of a crime, but with the (mis)identification of people by witnesses.

And now we transition to Virginia: What do we see now with the roaring debate over the Rolling Stone article about the University of Virginia women named “Jackie” who said she was gang raped as part of a frat initiation? And Rolling Stone then pulling back on the story saying that they should have been more careful in checking sources?

Should we believe her despite Rolling Stone backing away from the story for failing to properly fact check? Should we believe others who’ve made claims of violence against them? Should we believe those who claim they were falsely accused in various crimes?

Here’s a thought: How about instead of electing who to “believe” we just listen. And understand that news accounts rarely present all the facts. Or are only partially accurate.

Ignore those who tell you who you should believe when they have political agendas. Because accurately remembering sudden and traumatic events can be difficult. Even for simple stuff.

There is no reason to jump to a presumption of guilt against those accused. Nor any reason to disbelieve those that claim to have been assaulted.

It’s good to remember the false accusations of rape against Duke lacrosse players. And equally good to remember that those “guilty” of the Central Park Jogger case were actually innocent, with convictions based on false confessions by juveniles. And likewise good to remember that there are countless cases of rape and sexual assault that do take place, many of which are never reported. All of which involve witnesses of one kind or another.

Listening is good. It isn’t necessary to instantly have an opinion on who to believe, or not believe, especially when every single case is different and facts are often in dispute. We don’t usually get the benefit of being a fly on the wall, or having that God’s eye view of what happened. Asking questions and being quizzical are good; forming instant opinions and being adamant, not so much.

I am forever mindful of “subway vigilante” Bernhard Goetz being on trial, a white man who shot four black teens in the subway that, he said, threatened him. Outside the courthouse during the trial were two groups of protestors: Those who called him a hero for standing up to thugs, and those who accused him of being a murderous racist that should be jailed or worse.

But the protestors outside the courthouse all had a couple of mportant things in common: None of them were actually in that subway car and truly knew what happened, nor were they even in the courtroom listening to the witnesses try to describe a few moments of unexpected trauma.

“& Associates” as an Ethical Violation Gets a Courtroom Visit

Ethics-700970-774132Five years ago, when Sonia Sotomayor came before the Senate Judiciary Committee for confirmation, she released a questionnaire that gave her legal history, and she revealed that she once had a firm called “Sotomayor & Associates.” The problem? There were no associates.

Oops. I wrote the piece up within a few hours of the document’s release, describing it as a one of the less serious pieces of misleading advertising that take place, but a violation nonetheless.

And there the post sat for a couple weeks until the Washington Times picked it up in an editorial. And then the New York Times did a big story on it (without attribution to me, thank you very much) a month after I did, complete with White House response.

But the most curious part of the episode was the White House claim that this wasn’t an ethical violation, raising the issue from an “oops” to a full-blown kerfluffle. They actually paraded out a defense of the clearly misleading practice by offering a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Lieberman was dead wrong, in my opinion, and I called this a lousy defense.

Well, the answer is now clear, for any lawyers that thought they could get away with puffing out their firm names to make them look bigger than they actually are. Yesterday the Appellate Division, First Department censured a lawyer over the use of “& Associates” when he had no associates; he was a solo practitioner (Matter of Cardenas).

To be sure, this was the least of the transgressions committed in the censure that took place, with the big issue being the apparent deliberate commingling of funds. For the non-lawyers that may be reading, that means the lawyer borrowed money for his own use from an attorney escrow fund where it was supposed to sit segregated.

But mixed into the panoply of charges was this clear and unmistakable bit, for violating:

Rule 7.5(b) (using business cards and letterhead listing his law firm as “Cardenas & Associates,” when, during the period at issue, he did not employ any associates)

It is highly doubtful a lawyer would be censured for this alone. But the rule is nevertheless clear. It is misleading to call your firm “& Associates” when there are no associates. And if the White House or any other authority tries to tell you otherwise, there is now a decision to point to.

 

Is Any Lawyer Advertising Good?

Running on Field NakedI’m not a fan of lawyer advertising. Likely because so much is dreadful  (though not all). Or ethically challenged.

But when The Fishtown Lawyers, Leo Mulvihill and Jordan Rushie, were contacted by the Philadelphia Eagles about advertising during their games, I think they missed the boat by saying “no” too quickly.

Maybe going over the top is OK — no, not with a flaming sledge hammer of justice.  Maybe you just have to go over the top the right way.

So I’ve taken the liberty of writing ad copy for their criminal defense firm…you guys can thank me later:
—————-

Have you been falsely accused of running naked onto the field in front of 50,000 people?

Were you busted for recycling your pre-game beers down from the upper deck perch onto the heads of  choir boys and nuns below while the video cameras rolled? But you thought it was fresh beer, so it was OK?

Did you dis a cop at a crowded tailgate party, “You can only catch me in your dreams?”  Before collapsing into a pool of your own vomit?

Call The Fishtown Lawyers, Mulvihill & Rushie, to help save you from such well-documented, though no doubt scurrilous, accusations.

That’s The Fishtown Lawyers, Mulvihill & Rushie, who know from personal experience that consuming a mere 5 – 10 drinks can make others level all kinds of false accusations against you.

Why the Fishtown Lawyers? Because representing yourself might not be such a hot idea.

And we promise we’ll be sober in court.
————

Too bad they don’t have the guts to run it.

Ebola and the Failure of Lawyering (Updated)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

Gov. Chris Christie was the US Attorney for New Jersey. Gov. Andrew Cuomo was the Attorney General for New York. You’d think that, with those credentials, they’d be smarter.

Each of them knows that a long view must be taken with respect to many, many issues, often with extensive evaluation of complex issues.  It took them years, sometimes, to accomplish things with litigation.

As lawyers we cite to precedents that go back decades, sometimes centuries. This is part of critical thinking and analysis.

But when it comes to the Ebola virus, they’ve both capitulated to the concept of panic first and think second.

Both governors have now imposed a 21-day quarantine on medical workers who risk their lives to go to west Africa to help save lives and fight the virus. So in addition to an involuntary deprivation of liberty for those now returning, even if healthy, they have  also made the  job of helping more difficult for these particular brands of heroes. If a doctor or nurse was willing to squeeze out a 3-week trip to help, that just became a 6-week trip.

The ostensible reason is to make it harder for the virus to come here. But the result is the opposite.

Instead of fighting the disease where it is, it is now more likely to spread with less medical care. And folks who are visiting the region will simply vanish from sight (and potential monitoring) by routing themselves to other U.S. airports, via other countries, where they won’t be subject to the long arm of government.

Even if we stopped all people and flights, the proliferation of the disease if left unchecked would just as easily go to many a European or Asian nation. It could go anywhere, since disease knows no politics or borders.

Instead of 10,000 infected in Africa, it could grow to 1,000,000 if left unchecked.

The only logical answer is to stop the disease where it is. Does that mean risk that a few people might come back sick? Of course. But a few sick folks here now is a whole lot better than many sick people here later. It isn’t about picking a good course of action over a bad one, but picking the one that is less bad.

We should be encouraging people to help if they have the skills, not discouraging.

The short-sighted plan runs counter to the long-view training both Christie and Cuomo have as lawyers. They should both be embarrassed for their blundering pandering to the ignorant panicers.  The times call for the type of deliberative long-term evaluations and critical thought that they had been trained to do, and they failed.
——————–

Updated: Elsewhere of interest on law blogs:

Experts Debate Legality of New Jersey’s Ebola Quarantine Policy (WSJ Law Blog)

Seized By Fear: The Ebola Quarantine(Simple Justice)

Constitutional challenge to quarantine unlikely to succeed (Volokh Conspiracy)

Which Privacy Protections Apply? HIPAA, FERPA and Ebola (HIPAA, HITECH & HIT)

Ebola and Privacy: Snooping, Confidentiality, and HIPAA (Daniel Solove)

 

RIP: Prof. David Siegel

siegel_David

Professor David Siegel, from his Albany Law School biography page

Calling Professor David Siegel a giant of the New York legal world would not only be a bit trite, but would still be an understatement. His treatise on New York Practice, the bible of New York civil procedure, is a required text for anyone that works in this state’s courts on the civil side and is routinely cited by judges at all levels, both state and federal.

He died yesterday.

In an obituary at the New York Law Journal, former Chief Justice Judith Kaye is quoted thusly from a 2008 Albany Law School event honoring him:

“Who among us doesn’t know that he is the—absolutely the—preeminent authority on matters of civil practice in the entire universe?” Kaye said at the time. “There’s no one with a bit of good sense who would dare ever to cross you on matters of civil practice, David Siegel.”

Like many other local lawyers, I attended Siegel’s continuing legal education classes regarding our civil procedure many times. And here’s the thing: The guy wasn’t just smart and practical, he was funny.

That humor was reflected not only in his on-stage manner, but incorporated into his New York Practice book. I mean really, who the hell ever laughed out loud at something in a book about legal procedure? But Siegel could pull that off.

On a few occasions in this blog over the years I’ve mentioned that it sucks to be a test case, usually on the subject of our new and untested ethics rules regarding online conduct and solicitation. That mantra of “it sucks to be a test case” comes from Siegel, who used to preach that advice when lawyers would pose factual situations that might (or might not) comply with our procedure.

Ever the practical person, he knew that it wasn’t always whether some procedural issue would work or not, but that lawyers should avoid placing themselves into the position to have to make that decision. You might (or might not) win your test case, but it will cost you time, money and sleepless nights to get there.
——————–

From appellate lawyer Jay Breakstone:

I suppose it’s to be expected.  A lawyer dies and we all gather around and describe him in the most glowing terms, whether he was a saint or a nasty bastard.  Sometimes, it’s like being at Hitler’s funeral.  “All in all, what can we say?  He was a hell of a dancer.”  At the time of death, there is always something nice to say about anyone.

But the recent loss of David Siegel is something else.  It is the true loss of someone we needed, not just admired.  Prof. Siegel was that one tool on the belt of every working lawyer that we couldn’t live without.

He was the Vise-Grip plier that could wrap itself around a particularly nasty question and break it loose from our own ignorance.  And, just like that Vise-Grip plier, he was always there.  Except for now.

To those of us who write about the law, David Siegel had a very unique talent.  The Professor could make the law understandable.  What a gift!  After all, this is not John Grisham writing about steaming plot lines and attractive anti-heroes.  This is New York practice, about as entrancing as a heartburn.  Yet, David Siegel made it sing.

How did he do that?  To this day, I do not know.  In the master’s hands, New York practice was just about the most interesting thing in the world.  It involved real people and real lawyers and real problems and, best of all, real answers.  Like some ancient prophet, Prof. Siegel revealed all that came down from on high to those of us who lived below.

I first came across Prof. Siegel at a bar review course in 1976.  They said that his course on New York practice was essential.  I think I paid extra to take the course and they were right.  He lectured in a style that can only be called “conspiratorial.”  This was a lawyer talking to other lawyers (almost.)

It was him and us against the world.  At last, this was the real thing.  No theories, no big shot federal jurisdictional issues; this was blue collar lawyering at its best.  We listened enraptured, for we quickly understood that if by some slight chance we actually passed the bar exam, this was what we needed to know on the day after our admission. I can still hear David Siegel today:

“One day, as young lawyer, your boss will send you to court.  How exciting!  You will carry the nice new briefcase your parents bought you and head off to the courthouse at 60 Centre Street.  You will walk up the steps with the sun shining, ready to do battle for justice.  You will enter the beautiful lobby and, just as quickly, you will descend into the bowels of hell.  You have been sent to the Special Term, Part I courtroom.

As you open the swinging doors, you will be assaulted by a scene out of Dante’s Inferno.  Hundreds of lawyers will be there, shouting out the name of hundreds of other lawyers.  You will sit down in the back of the courtroom and wait for the judge to take the bench and call your case.  But there will be no judge to hear your application for an adjournment.  Only the clerk will take the bench and he will begin to rattle off case after case in the order they are on the calendar taped to the wall outside the door – – the calendar you did not notice when you came in.  So, you will listen for your case to be called.

Quickly, the case names go by, and then, you think you hear yours!  You walk to the front of the courtroom, only to realize that in the time it took you to make that trip, fifty other cases went by.  There is no one to talk to; you are alone in a crowd, secure in the knowledge that once you get back to the office, you will be fired and have to pack up your desk in one of those cardboard boxes and go home, telling your mother you’re not a lawyer anymore.”

It was then that David Siegel, as he did until the day he died, rode in like a knight on horseback and saved our lives:

“This is what you have to know:  There are only three things you may yell out in Special I.  Nothing else will register in the mind of the clerk.  He or she is only programmed to respond to these three magical phrases.  Write them down now.  Memorize them.  Never forget them.   Here they are:  Ready for;  Ready against; Application.”

Prof. Siegel, I have never forgotten those words . . . or any of yours.

Loving Your Office

woolworth-building-at-night-425

Photo by Chris Petsos Photography. Many more great shots at his site. Click on image above to get there.

Lawyers have to make decisions on their offices: Make it nice? Or make it inexpensive? Rarely do the two concepts coincide.

We spend a lot of time in our offices.  Other than our homes, this is it.

This came to mind when I saw an article in the Sunday real estate section of the Times on my old stomping ground: The Woolworth Building.

My office was on the 8th floor, overlooking Broadway (and ticker tape parades) and City Hall Park (and the people who’d shout and scream at Mayor Guiliani).

I loved that building. As I walked into the office each day through the lobby of this gothic style skyscraper — once the world’s tallest, with its vaulted mosaic ceiling, gargoyles, and crowds of tourists gawking at its magnificence — I couldn’t believe I actually worked there.

And I enjoyed going in to work. It made me feel good to be there. I was productive. And it was a fine contrast to the windowless office that I started my solo career in, with a big mirror that I bought to give it the illusion of something bigger than a glorified closet.

Since leaving the Woolworth, each of my offices has been nice. Spacious. Welcoming. With pictures of my family filling the walls.  The diplomas are on the wall behind me, where I don’t need to look at them.

Today’s rumination isn’t just for those looking for offices for themselves, but those in charge looking for their staff. Do you want them to look forward to work or do you want them miserable coming in? While this formula isn’t ironclad, I think it has a lot of validity, both for lawyers and staff:

Comfortable office = productive lawyer

Don’t be cheap unless you absolutely have to. Remember how much time you’ll spend there, and make sure it’s a place you want to go to each day.

Apple, Privacy and Law

ApplePayYesterday Apple had its massive product presentation and one of the products it announced was a new pay system for credit cards, Apple Pay. Load the cards into an iPhone, and then just wave them in front of a techno-gadget at the check-out counter and you’re done. Simple.

Why might this be important? Currently, big business is tripping all over itself to gather as much information on you as possible, taking away big chunks of your privacy.

A 2012 New York Times piece on Target explained how, based on the buying patterns of a teenager — unscented lotions, vitamin supplements and other non-pregnancy related products — it knew she was pregnant early on and sent coupons for maternity clothes to her home. Her father was livid. And unaware of his daughter’s state.

Target is obviously not alone in doing everything possible to create massive data banks about you. Data banks that, perhaps, can then be hacked into (or subpoenaed).

Personally, I find myself using cash more and more often, as I cherish my privacy.

But Apple Pay may reverse that direction. According to CEO Tim Cook, the iPhone encrypts the card numbers, and when you make a purchase, the store can’t attach product information to your purchase.

That’s because the store doesn’t even get your name, much less your card number. Hacking the store’s computers should keep the consumer safe (again, see Target, and its loss of 40M credit card numbers).

And even Apple doesn’t get the information. From the Apple website, two key paragraphs:

Apple doesn’t save your transaction information.With Apple Pay, your payments are private. Apple doesn’t store the details of your transactions so they can’t be tied back to you. Your most recent purchases are kept in Passbook for your convenience, but that’s as far as it goes.

Keep your cards in your wallet. Since you don’t have to show your credit or debit card, you never reveal your name, card number or security code to the cashier when you pay in store. This additional layer of privacy helps ensure that your information stays where it belongs. With you.

If this works as planned, it has the potential to (partially) reverse our headlong dumping of personal information about ourselves into the computers of Big Business, both with respect to the items we buy as well as the cards we use.

The less data that exists in the data banks, the less it can be abused.

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