Yearly Archives: 2009

 

January 16th, 2009

Linkworthy

We have a new blog in town, John Hochfelder’s New York Injury Cases Blog. John clearly understands the first errors so many personal injury bloggers make; he doesn’t treat his blog as an island unto itself to be used solely for self-promotion, and is joining the blawgospheric conversation. He’ll be digging into the meat of those big verdicts you sometimes hear about, and will let us know what they really mean;

A Phoenix rises in Blawg Review # 194 with Susan Cartier Liebel at her Build a Solo Practice;

Anne Reed let’s us know at Deliberations how Clarence Darrow picked juries. Some things are timeless:

Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants

…but his stereotypes of Irishmen, Englishmen, Germans, Jews and others needs to be seen to be believed;

“Tomorrow at midnight, New York will joins the ranks of other jurisdictions in which liability insurers must prove prejudice from delayed reporting of liability claims.” Roy Mura at Coverage Counsel has the details;

Ron Miller takes an historical look at the efficiency of the justice system; he starts with a Time Magazine article from 45 years ago that seems to have some familiar complaints;

And TortsProf has their 21st edition of the Personal Injury Law Round-Up.

 

January 15th, 2009

Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules? (Updated x2)

The plane crash in the Hudson River today may test New York’s new attorney ethics rules with respect to solicitation.

New rules were put into effect in the wake of the 2003 Staten Island Ferry disaster that killed 11 and injured 71. The Appellate Divisions were appalled that so many personal injury lawyers ran to place ads in the Staten Island Advance before a 3 pm deadline on the day of the accident; ads that were placed while rescue efforts were still underway.

Specifically, there is a prohibition on solicitation within 30 days of such a mass disaster. (While some of the new rules were found unconstitutional, this one was not.) The new rules read:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

Lawyers who place the ads claim that they do so so that people will be able to quickly learn their rights before an insurance company stuffs a release under their noses while they are still in shock from the incident, and gives them 10 cents on the dollar. The new rules, it should be noted, prohibit the insurance companies from doing so. The following paragraph reads:

(b) This provision limiting contact with an injured individual or the legal representative theoreof applies as well to lawyers or law firms or any associate, agent, employee or other representative of a lawyer or law firm who represent actual or potential defendants or entities that may defend and/or indemnify said defendants.

Of course, the authority of the court to regulate the insurance companies in such a manner has never been tested. (See: Did New York Courts Exceed their Authority With New Advertising Rules?)

Some may believe that, thanks to the fast and heroic action of local ferry operators that saved so many people, and the lack of serious injuries at this point (as per news reports), it would indicate that few personal injury lawsuits would even occur. But even if the physical injuries are minor, there will no doubt be substantial psychological damage to many who thought they would not live to see another day, and may suffer post-traumatic stress disorder in the months and years to come.

With all this in mind, I Googled “Hudson River Plane Crash” to see who started to run ads. Thankfully, the answer is zero. None. Nada. Zip. I don’t know if this is the result of the new ethics rules, or due to the lack of death or serious physical injuries, but it is certainly surprising. A pleasant surprise I might add.

So far, so good. Let’s hope I don’t have to do an addendum.

[1st Addendum: OK, I now have to do an addition. Yeah, you knew there would be one, right? An attorney search service is might, in fact, trolling for victims (via Overlawyered and Popehat). This is would be a clear violation of New York’s attorney ethics rules, but of course, the site claims not to be a law firm (and this might be for a different crash). I had warned in November 2007 of exactly this type of problem, with lawyers using agents to advertise while turning a blind eye to the ethics of the services. See: The Ethics of Attorney Search Services. I wrote at that time:

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.] End 1st Addendum

[2nd Addendum: OK, it seems that we have a clear winner on the issue of this crash and the new ethics rules, with one New York firm clearly and unequivocally using “Flight 1549” and “US Airways” in their Google ad]

And one big, gigantic tip of the hat to the pilots and crew and all involved in the rescue. I would call the result a miracle, but if I did so it would diminish the skills and courage of those involved.
————————————————————————-
Photo Credit: Fanny Brown Rice
————————————————————————-
More on the crash:

…it’ll take more than a miracle to keep the lawsuits from flying. As far as we know, no suits have yet been filed. But we were curious about what such a claim — negligent infliction of emotional distress, anyone? — may look like, and whether it could succeed.

Please don’t rush to New York and file a lawsuit over yesterday’s crash.

Links to this post:

mortimer, morden, and miracles
a few “quickies” that took too long to write this saturday morning afternoon: thank you, john mortimer, for creating rumpole: as today’s new york times reports, “john mortimer, barrister and writer who created rumpole, dies at 85” (jan. …
posted by David Giacalone @ January 17, 2009 1:25 PM

 

January 14th, 2009

InkJetSuperstore Not So Super

I’m irritated. The web site claims that orders “are usually shipped the same day.” But it took them five days to ship mine. Since this is ink for my printer, that matters.

Over the last 20 years I have done everything as an attorney from answering the phones and filing papers, to taking verdicts and arguing appeals. I’ve also taken care of my office equipment, which inclues the utterly mundane act of ordering ink.

InkJet Superstore has ink. So I ordered it. But when I got an email five days after placing the order that it had just shipped, I was steamed.


I tried to call, but the customer service number was no longer working.
I tried to email, but there was no email address on the site.
I tried “live chat” and got a human, claiming to be named “Jane.” Ah ha! So let’s see what happened to my ink:


info: Please wait for a site operator to respond.
 info: You are now chatting with ‘Jane’

Jane: Hi! How can I help you?
you: I ordered my stuff 5 days ago. Why did it take 5 days to ship?
Jane: I do apologise for that delay. Could you tell me your order number so I cna look it up?
you: 683089
Jane: And what is your name please?
you: Eric Turkewitz
Jane: We experienced a severe delay during the weeks from Dec. 29 to January 10th, this is why your order shipped fiveive days later. I apologise for this inconvenience.
you: Your website says:
you: Orders placed before 3pm PST are usually shipped the same day. (Monday – Friday).
you: I tried to call, by the way, and the customer service number on the website has been disconnected.
Jane: Yes, but as I said, we went thourgh a very big, unforseen, delay. Which is why we couldn’t ship a lot of orders within due time.
Jane: Our phone system is down at the moment, we’re trying to solve it.
you: What was the delay?
Jane: We had our anual inventory recount opnthe last week of December, which resulted in a huge delay of orders from that week and the week after it
you: If this was an annual recount, why was it “unforeseen?”
Jane: Because we don’t prevent how many orders we will have delayed
you: ??? (That didn’t seem to make sense)
Jane: The delayed was expected, but we didn’t know it was going to be such a delay. Is there anything else you need us to do for you???
you: If you knew there was a big delay, why didn’t you at least send the stuff to me by next day delivery instead of ground service?
Jane: I’m sorry for the inconveniece, but we weren’t able to do that at the time.
you: That’s not a very good answer to an unhappy customer
Jane: I apologise for this problem I really understand your situation.
you: Saying you have delays due to an annual recount and apologizing for me not sending me the stuff pronto, doesn’t really answer any question that I had
you: Your site says 100% satisfaction guaranteed. As you might guess, I am not satisfied
Jane: What you can do, if you wish, is return the items for a full refund, when you receive them.
you: Where were these goods shipped from?
Jane: Form Bell, CA, 90201
you: Great, so it will take another 5 days to reach New York?
Jane: Yes.
you: Will you be letting your boss know that s/he has lost the business of a customer, not just because of the initial delay, but because the company then caused further delay by shipping it via ground?
Jane: I will. We always report this issued to our boss. I’m sorry for this inconvenience.
you: By the way, you said you couldn’t ship the stuff to me via air after the delay. Why not?
Jane: We can’t change the shipping method a package once the order is shipped.
you: But it only shipped today. You knew many days ago you were having long delays. So why wasn’t it switched before it was sent?
you: I mean, really, is that any way to treat customers? To make them bear the brunt of your delays?
Jane: This was an unusual situation, I’m so sorry about this.
you: You’ve already apologized. I’m not looking for another one. I want to know why steps weren’t taken to immediately rectify the foul-up. Because if the company can’t rectify foul-ups in such a simple manner, there seems to be little reason to trust the company in the future.
you: Hello?
info: Your chat transcript will be sent to [xxxx [at]Turkewitzlaw[dot]com] at the end of your chat.

So there you have it. Delays by the company, and the hope that lots of “I’m sorries” will somehow make the goods appear at my office quicker. I never did get a decent answer as to why an annual recount was unforeseen or why the company didn’t ship delayed items by air to make sure the customers got their goods with as little delay as possible.

OK, you’ve each been warned about this company.

 

January 13th, 2009

New York Brings (Some) Clarity to Jury Selection Rules

New York’s jury selection rules have always appeared a bit Byzantine. They vary from county to county and at times from judge to judge. In one place you use the “Struck” method and may question 30 or more jurors at once, and in another you question just the first six (White’s Rules). Sometimes lawyers immediately replace jurors when they are excused for cause or consent, and other times you wait until the end of the round when you do the peremptory challenges. Most places the plaintiff and defendant alternate each round as to who must exercise challenges first, and in some places the plaintiff is forced to go first in every round.

It was enough to drive an otherwise sane lawyer batty. But now some of that may change, as Chief Administrative Judge Ann Pfau has issued this guide for judges and lawyers on how to implement the rules. Are they standard now? Of course not. But with a guide, that everyone should print out and bring to jury selection, at least things may run a bit more orderly because the issues are more sharply defined.

Oddly enough, our courts still can’t seem to standardize our method of selection, as the guide tells us:

The Uniform Rules for the Trial Courts provide for two methods of jury selection — White’s or Struck. Counsel shall be given the opportunity to select the method they prefer, provided that the court will select the method if the parties cannot agree.

You would think that, after a couple hundred years of practice with the jury system, we could at least resolve the simple issue of picking a system of picking.

I also have an issue with the timing of when potential jurors are replaced, either on consent or for cause. Do you handle those two categories on the spot (and then immediatey fill the vacant seat) or wait until you are off in the hallway just moments before you exercise peremptory challenges for cause? As per the guide:

In each round, consent excusals and challenges for cause of jurors ‘in the box’ shall be exercised prior to exercise of peremptory challenges and as soon as the reason therefor becomes apparent. When a juror is removed from the box for cause or on consent, that juror is immediately replaced, and questioning reverts to counsel for the plaintiff.

The problem with this system is that, when you kick someone right after they’ve uttered the magic words (“Does your client think the jury system is a lottery?”), you’ve also given information to the rest as to exactly what kind of story they need to tell to be bounced from jury service. While most folks can figure this out pretty easily, there seems to be little reason to telegraph just how easy it can be.

There are good parts as well. For instance, I will no longer be told to question 30 jurors in one hour, as I have been told to do on occasion. According to the guide:

Instead of setting time limits for questioning, the recommended practice is for the judge or [Judicial Hearing Officer], based on the consultation, to set only a general time period after which counsel should report on the progress of voir dire. In a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire and, if requested by the judge or JHO, periodically thereafter until jury selection is completed.

The guide also gives sharp definition to the Struck method, which has varied from place to place with respect to when challenges are used in various rounds. The court says that, if using this method, there is just a single round of challenges, to be exercised only after you have enough cause-free panelists to fill the jury:

After the general voir dire of the full panel, counsel’s questions focus on the first 16 prospective jurors in the randomly selected panel. If any prospective are excused by consent or cause challenge after both sides have questioned the first 16, the questioning proceeds with the prospective jurors occupying seats 17 and higher until there is a total of 16 ’cause-free’ jurors.

I’d like to think that this guide is a work in progress and not a finished product. One, single, standardized system of selection throughout the state would most surely make life easier. And after a couple hundred years of practice, we ought to be up to that task.

And if you want the story on the artwork I’ve used for this bit, you can check it out here (But please excuse the horribly self-promotional text at the link. That needs to be re-written.)

Links to this post:

New York Brings (Some) Clarity to Jury Selection Rules
https://newyorkpersonalinjuryattorneyblog.com/2009/01/new-york-brings-some-clarity-to-jury.html. New York’s jury selection rules have always appeared a bit Byzantine. They vary from county to county and at times from judge to judge. …

posted by Jury Experiences @ January 24, 2009 8:13 PM

jury selection in new york
the courts are trying to come up with clearer rules.
posted by Walter Olson @ January 16, 2009 12:41 AM

 

January 9th, 2009

Why is SimmonsCooper Spamming My Blog? (Updated)

Every blogger gets spam. I expect it from the various hustlers who permeate the web. But I didn’t really expect it from a law firm. From a big law firm.

SimmonsCooper* is a personal injury firm in Illinois. They focus on asbestos litigation and the disease it causes, mesothelioma. According to their web site, they have 17 partners and 39 associates and of counsel talent on hand, so this isn’t a small shop.
But apparently SimmonsCooper thinks it would be a mighty fine idea to send spam advertising to my blog in the comments area.
The first message came in January 2nd, and I deleted it and ignored their transgression. Then they did it again today. The post they were spamming was a September 17, 2007 piece on the Graves Amendment and immunity for car renting/leasing companies. Not a lot there about asbestos, I’ll tell you that. But that didn’t stop them from posting this drivel: If you or someone you know has been diagnosed with blah, blah, blah.
Note to SimmonsCooper: That’s pretty scummy stuff. It’s also a waste of your time and resources because:
1. The note is old and unlikely to be read by many;
2. Those that do read it aren’t looking for an asbestos attorney; and
3. You get zero Google juice out of it because my blog, like others, has a “do not follow” command for the comments area so that spammers don’t waste their time polluting our little publications.
If you want to advertise your services, go ahead. Knock yourself out. It’s legal because of that First Amendment thingie. I’ve got a web site too. Nothing wrong with that concept. I have to hope that any lawyer that does advertise will do so in a dignified manner.
But sending spam to my blog is not dignified.
Now I’m going to take a guess here and say that SimmonsCooper hired some idiotic SEO company to spread their name around. Perhaps they are ignorant of the fouls being committed in their name, or perhaps they are simply turning a blind eye to what their agents are doing in their name. Perhaps they are just shocked, shocked, I tell you, that their agents would behave in such a slimy manner.
I can only hope they pick their experts in a better fashion than the people who do their marketing.
———————————————————-
* Link is via a TinyUrl redirect so that the spammer doesn’t profit from any Google juice due to this posting.
———————————————————-

After posting this, I receive an apologetic call from Mark Motley at SimmonsCooper. He told me that they did not approve of what had been done in their name and were embarrassed by the spam.

I’ve previously written of the risks of lawyers outsourcing their web marketing to others, in the context of those horrid attorney search services (The Ethics of Attorney Search Services). There is a danger not just on the ethics front, but on the reputation front when SEO companies sing their own praises to get your business, and then do trashy things in your name.

Motley sent on to me this email, which he asked that I publish:

Thanks for your time today on the phone. It was a pleasure meeting you.
As you and I discussed, SimmonsCooper does not have anything to do with
the spam commenting you refer to in your blog. We do not approve of
spam commenting. We have a blog ourselves and frequently receive those
sorts of messages as well. I’m sorry to have met you under these
circumstances but am glad to have found your blog. Keep up the good
work!

Regards,
Mark Motley
SimmonsCooper LLC

Links to this post:

Sixteen Rules for Lawyers Who (Think They) Want to Market Online
1. If you’re looking for The Promised Land, you’re in the wrong place. This is the Wild West, Pilgrim. 2. There are clients online—sophisticated, moneyed clients—but they don’t find lawyers the way you think they do. …
posted by Mark Bennett @ November 16, 2009 10:15 PM