Monthly Archives: November 2007

 

November 21st, 2007

Some Good Practice Tips

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I’d like to highlight two. Since the article’s vantage point is what defense lawyers can learn from plaintiff’s lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren’t really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about — and yours is one of hundreds she is handling — she will want the nutshell version. If you don’t know it, you don’t truly know your case. It should look something like this:
“Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy.” If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

 

November 19th, 2007

The Ethics of Attorney Search Services

The calls come to me virtually every week from some website that advertises for lawyers and then sells or in some manner refers the names to attorneys. These sites, generally, offer to send leads from a geographical area that are typed into their site to an attorney in exchange for some kind of payment. The websites act as an advertising front for the firms, without their names being exposed unless an inquiry is made. And so the issue is: What type of ethical responsibility does the lawyer have for the advertising conduct of the service?

Today I’ll name names for what appears to me to be clearly unethical conduct.

Here are a couple of the cold-call tactics used to sell the business to attorneys:

One call from MalpracticeLawOffices.com started with this pitch, “I’m a representative of Google.com.” Now even I know that this must be false. And so the question immediately arose: If the salesman will lie, what other kinds of ethical breaches will occur while your law firm name is attached to their website? (I decline to provide a link, as I don’t want to help them improve their pagerank with Google.)

An attorney in the Bronx I spoke with told me of a company called AnAttorneyForYou.Com that came at him with this pitch: They would take a percentage of the fee for sending personal injury matters to him. The lawyer I spoke with (who asked to remain anonymous) then asked if they were attorneys themselves, since a fee sharing arrangement with a non-attorney is a clear ethical breach. The answer was no, they were not attorneys, and that this was simply a fee for the referral. When the Bronx attorney asked about the ethics of splitting a fee with a non-attorney, the response was a version of, “I only work here.”

Indeed, their own Disclaimer states:

Nothing in this website is intended to imply that anattorneyforyou.com is a referral service certified by any state bar or bar association, or that anattorneyforyou.com satisfies the minimum standards for lawyer referral services established by any state bar or bar association

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees. The company itself is most likely not in your state and not subject to attorney disciplinary rules. So what forces the advertising company that the lawyer is using to act in accordance with local ethics codes?

The very act of engaging such an advertising service should subject the law firm to disciplinary action for any ethical violations committed by the non-attorney advertising company. With this threat hanging over the head of an attorney, it is unlikely they would take such risks with their licenses. It thus makes it impossible to turn a blind eye to any ethical breaches by any service that is used as a front for the law firms.

There is little doubt that if and when attorneys are called on the carpet for problems, they will simply play dumb and say they didn’t know. But that should not be an acceptable excuse. And this is a problem that should be nipped in the bud quickly.

Links to this post:

adam winter and thomas dicicco: lying asshats of the day
today’s asshats of the day are adam winter and thomas a. dicicco, jr. of “web guardian” (i don’t know if it’s this webguardian, but it’s probably just a boiler room in boca raton). the first time adam called he gave his full name (”adam …

posted by Mark Bennett @ July 10, 2009 3:48 PM

is sueeasy the worst lawyer idea ever?
cross posted from new york personal injury law blog: when i first heard about sueeasy, i thought it was an april fool’s joke. but it was october when it first appeared as a development concept (see 10/23/07 post: so how did you find …
posted by Eric Turkewitz @ April 18, 2008 9:38 AM

 

November 18th, 2007

Better Blogging: 12 Tips

Having now read and linked to hundreds of blogs as part of my postings and round-ups during my first year, and having exceeded my expectations for a niche blog (The End of My Rookie Year: Thoughts, Metrics and Changes), I wanted to list a dozen tips on better blogging to kick off my second year. Perhaps one or two of the points will help someone somewhere, particularly those in my field, but these can be adopted elsewhere:

1. Blog optimization is different than search engine optimization: SEO experts tell you to use the same buzz words as often as possible so that it increases presence with Google. Except that doing so means your writing will probably suck. Does a reader really want to see the phrase “personal injury attorney” in every other sentence? And if the writing sucks, no one will want to read it, link to you, or come back. Incoming links, of course, are important both to bringing in new readers and improving Google PageRank. Otherwise you have to hope that new readers will blindly stumble upon your poorly ranked blog. So forget SEO and work on being a better writer and providing real content.

2. Don’t engage in blatant self-promotion: Blog posts that look like advertisements (“If you or a close friend was injured, call me at …blah, blah, blah”) are posts that no one wants to read, and fewer want to link to. Perhaps a potential client will find you, but without the incoming links that come from better writing, it isn’t very likely.

3. Don’t use crappy back links to yourself in the post: If you continually link back to your own blog or website in the text of a post every time you use a favorite buzz phrase, you have added nothing. In fact, you’ve made it worse. Perhaps you think all those internal links make Google happy, but don’t count on readers who chased bum links coming back again. While I’m not privy to Google’s algorithms, you can bet your last pixel that external links are vastly more important than internal links. Google didn’t get to be king of the hill by being stupid. I use one identifying link at the bottom of the post, and have an “about” section in the sidebar. That’s more than enough if someone wants to find me, and doesn’t destroy the text.

4. Breaking the news beats the hell out of commentary on the news: The posts that most readers found to be of interest were those that had originally sourced material. Why? Because other bloggers (and news media) saw them and linked to them, thereby bringing in more readers. Commentary is nice, and allows you to give your views, but it’s still just commentary.

5. Link to others often: While this is part of every “how to” on blogging, many people still don’t get it. Links are how others find out about you, and they bring in other bloggers who might, if you write well, link back to you bringing in more readers.

6. Your competition is your friend: While you may compete in the same niche for clients with other firms, they are also your readers and sources for stories. A successful blog doesn’t ignore that.

7. Quirky is good: If a blog isn’t enjoyable to read, then people won’t read it. Simple. A little personality is fine. Don’t make reading your blog look like work.

8. Stay focused: If you are off-topic more than 20% of the time, people won’t really know what you are about, and therefore may not come back. And 20% is probably too high.

9. Add value: A blog that is merely parasitic of news stories or other blogs isn’t worth much, unless you intend to be a news aggregator like How Appealing or Kevin M.D. If you’re writing about a news story or decision reported by others, add your own thoughts on its significance.

10. Don’t try to monetize the blog with ads: Very few blogs have the traffic that will attract meaningful advertising dollars. So if the money is minimal, don’t uglify the blog with ads.

11. A blog is indirect promotion: When people write articles for publication, they don’t scream “hire me!” Writers for traditional journals simply hope that their reputation will be enhanced by demonstrating knowledge in a field and that this may indirectly help them professionally. It’s a form of networking. Treat your blog the same way.

12. Enjoy yourself: If you don’t enjoy it, don’t do it. If it is done as a hope for obtaining business it will be quite clear in your writing, and more importantly, it won’t be fun. Let’s face it, no one will ever hire me because of my marathon Blawg Review, but I had a blast doing it. And that’s the important part.

This past week has been devoted to blogging due to Blawg Review and my one year anniversary. The navel gazing will now stop and I’ll return to the theme of the blog. Unless the mood or a good story messes with my plans.

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

 

November 16th, 2007

The End of My Rookie Year: Thoughts, Metrics and Changes

Tomorrow is this blog’s first anniversary. So I wanted to share some visitor metrics, upcoming changes, and general thoughts:

1. Metrics:
This tiny corner of cyberspace attracted significantly more visitors than I had imagined a year ago. Weekday readership the last six months has been about 700 unique visitors per day. Roughly 20,000 per month. Here is the data for the year, starting from scratch, as of yesterday:

  • Unique visitors: 158,860
  • Most unique visitors in one day: 2,485
  • Unique Visitors this month: Nov 1 – 15: 11,862 (790/day)
  • Visitors: 291,612
  • Page views: 524,139
  • Number of Posts: 367 (too many)
  • Number of blogs that linked to me: Over 200 (waaaaay more than I imagined)
  • Largest blog sources of referrals: Above the Law, Overlawyered, Kevin, M.D
  • Number of legal threats against me: 2 (one published, one not)

2. Changes:
OK, the blog was a success. So let’s change it…

  • The Personal Injury Round-Up that I have been doing is now kaput. It was fun while it lasted, but very time consuming to do on a regular basis.
  • I hope to spend more time on individual stories and, hopefully, occasionally write stories that are not yet in the press.
  • I hope to bring in guest bloggers. Interested parties can contact me.

Will the blog improve or will I get hit with the sophomore jinx? Beats me.

3. Blogging Tips:
Since the blog is a success (at least to me), my next entry will be my tips on blogging, for whatever it may be worth to others (perhaps not much).

4. Thoughts on Blogging:
This has been a real hoot, but it has also taken a great deal of time. The one oddity that stood out was that I was placed on the blogroll of Overlaywered while at the same time being a guest contributor to its arch nemesis, Tort Deform. I’m not 100% certain what it means, but I think that has to be good, especially for a beginner.

I’ve listed some of the most popular posts are here, but my personal favorite was the marathon Blawg Review #134 that I put up earlier this week, essentially the culmination of my rookie year. It was long, not just because marathons are long but, because I had so much fun conceptualizing, researching and writing it. I started making notes in a separate file six months ago on ideas and situations, much the way I make notes on trial themes and tactics from the day a case comes in.

The streets and crowds of New York provided unlimited opportunities to raise different subjects and allowed me to weave a fabric using both fact and fiction that included bloggers, the race and the city. The post got goofier and goofier as the race wore on because that is one thing that happens with exhaustion. A tip of the hat to the people that made it to the finish line.

And a big thank you to all who have visited and commented over the past year. Except, of course, to the two lawyers that threatened me.

Links to this post:

blawg review marathon
blawg review #134 is being run this week by eric turkewitz at the new york personal injury law blog. you won’t want to miss this one — it’s a marathon, not a sprint. eric turkewitz tells me that the inspiration for his new york …
posted by Editor @ November 12, 2007 1:56 AM

 

November 16th, 2007

Personal Injury Law Round-Up – Final Edition

The New York Personal Injury Law Blog presents the final edition of the Personal Injury Law Round-Up, as a couple of changes are being made as I hit my first year anniversary…

We’ll start with the issue of tort “reform”:

In a resounding victory for patients, an Illinois court found that a tort “reform” damages cap is an unconstitutional violation of due process and equal protection by artificially limiting what medical malpractice victims can receive for their pain and suffering. Mark McKenna has more with a link to the decision; And Justinian Lane at TortDeform explains that the failure of this “reform” made no difference for an insurer’s decision to stay in the state;

[Edit – 11/19/07: In an email to me, Robert Peck of the Center for Constitutional Litigation, who argued the case, alerted me that the decision was ruled unconstitutional based solely on separation of powers issues. It was therefore unnecessary to reach the other issues.]

John Day gives some statistics from Tennessee on medical malpractice suits, settlements and more, in the context of why further tort “reform” is not necessary;

Ron Miller discusses how non-economic damage caps may be considered discriminatory toward women;

Justinian Lane at TortDeform follows the Texas story of tort “reform,” to find out who benefited, and who didn’t;

At TortsProf, guest blogger Chris Robinette discusses the efforts in Arizona to kill off as many emergency room negligence cases as they can by raising the standard of proof to “clear and convincing evidence;”

Kanye West’s mother died during cosmetic surgery in California, and Hans Poppe wants to know if he would be able to find a medical malpractice lawyer to investigate if he wanted to because, you guessed it, tort “reform” that caps damages;

Also at TortsProf, Robinette finds a notebook from a student of William Prosser (Prosser on Torts) has surfaced, with some of the legendary professor’s thoughts.

And into litigation:

Not in suit yet, but…Nine children were hospitalized after eating Aqua Dots that used a toxic glue, according to The Consumerist. The product came from China, naturally.

John Day and on the discoverability of insurance policy limits (which is standard disclosure in New York);

Bill Childs on a suit against the KKK for the beating of a man, with the announced purpose of putting the Klan out of business;

Bill Marler discusses the lame excuses Cargill is giving for distributing contaminated beef;

From the land of settlements: Drug and Device Law has more on the Vioxx settlement and expands upon a subject I mentioned in my marathon Blawg Review #134 (discussed just after the 21 mile point), that being the impact of those that choose not to settle, which are likely to be the more substantial cases. And as Ed Silverman points out at Pharmalot, the settlement is only for U.S. claimants. Ted Frank has a good round up of analysis on the potential problems spots at Point of Law; And Howard Erichson reports on a plaintiffs-only conference to discuss the settlement;

From the miscellaneous category: New York State practitioners should take note of a reversal in Raffellini v. State Farm regarding the issue of whether a “serious injury” threshold applies to supplemental insurance. No Fault Paradise has the scoop;

And finally:

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

Links to this post:

turkewitz rounds up tort “reform”
eric turkewitz’s weekly round-up on ny personal injury law blog includes the latest on tort “reform” on the web. check it out. browse the links to the other blog posts–they’re worth it–as i’m certain you’ve already read and thoroughly …
posted by Kia Franklin @ November 16, 2007 12:03 PM