December 2nd, 2022

My “Hate Speech” Policy

Prof. Eugene Volokh, challenging the new law. Photo courtesy of Tritton Productions.

Back in June, I wrote about New York’s attempt to force blogs and other social media websites to have a reporting mechanism for “hate speech.”

Since the new law goes into effect December 3rd, and there is a lawsuit challenging its constitutionality, I write again.

First off, I used quotes around “hate speech” because there is no legal definition that comports with the First Amendment. (“I know it when I see it” is not a definition.)

There’s no real definition because it’s impossible to define words that “vilify” or “humiliate” others. But that does’t stop New York from trying:

"HATEFUL CONDUCT" MEANS THE USE OF A SOCIAL MEDIA NETWORK TO VILIFY, HUMILIATE, OR INCITE VIOLENCE AGAINST A GROUP OR A CLASS OF  PERSONS
ON THE BASIS OF RACE, COLOR, RELIGION, ETHNICITY, NATIONAL ORIGIN, DISABILITY, SEX, SEXUAL ORIENTATION, GENDER IDENTITY OR GENDER EXPRESSION.

Most standup comics would have trouble under this law if they presented their material on a blog without a complaint mechanism — or if you wrote about their material on a blog. Basically, you couldn’t write much of anything about the social commentary from Lenny Bruce, George Carlin or Dave Chappelle.

When I previously discussed this, I wrote:

“Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds.

Most anyone can claim they are humiliated by most anything someone writes about them, unless I guess, the words came off their own keyboard.

Did someone use the wrong pronoun? “How humiliating! Where to do I report this hateful ‘conduct’?”

Interestingly the bill does not say that if a “hate speech” comment is made by someone that it must be reported to any government authority. It simply requires that a website have a reporting mechanism to it, and that it must have a policy in place.

In other words, it’s a fundamentally toothless piece of performative legislation, except for the fact that it compels speech — it compels websites to come up with a reporting mechanism and policy.

Scott Greenfield thinks it doesn’t apply to him, and he may be right. His rationale is that Simple Justice doesn’t exist for “profit-making” purposes. He writes, as I do, whenever he wants, and about whatever he wants, and if you don’t like it you don’t have to read it. There is no fee to read. Go suck an egg. End of story, etc.

But what is the definition of a profit-making blog? The text of the bill doesn’t actually say:

(B)  "SOCIAL  MEDIA  NETWORK"  MEANS  SERVICE  PROVIDERS,  WHICH,  FOR PROFIT-MAKING PURPOSES, OPERATE INTERNET PLATFORMS THAT ARE DESIGNED TO ENABLE  USERS TO SHARE ANY CONTENT WITH OTHER USERS OR TO MAKE SUCH CONTENT AVAILABLE TO THE PUBLIC.

If I ran crappy Google ads on this site, the Attorney General could claim it qualifies as a direct revenue source as soon as one person clicked an ad and I made a dime. Would a tip jar on the side bar qualify?

Could a creative Attorney General claim that a law blog is used for indirect profit-making purposes? “Look, Mr. Blogger, every time you write you elevate your profile, and that leads to more business!”

In other words, pretty much the same argument if a lawyer wrote an op-ed, a law review article, gave CLE lectures or made television appearances. It doesn’t take a genius to argue that this is done as an indirect means of making profit, regardless of the attorney’s actual motivation in writing.

Yes, it’s a crappy argument, but would an Attorney General that already championed a bill that violates the First Amendment care?

This is what the law demands of a “profit-making” social media network. Rather than fight over whether I qualify, I prefer to come up with a policy.

First the language:

A SOCIAL MEDIA NETWORK THAT CONDUCTS BUSINESS IN THE  STATE, SHALL PROVIDE  AND  MAINTAIN A CLEAR AND EASILY ACCESSIBLE MECHANISM FOR INDIVIDUAL USERS TO REPORT INCIDENTS  OF  HATEFUL  CONDUCT.  SUCH  MECHANISM SHALL BE CLEARLY ACCESSIBLE TO USERS OF SUCH NETWORK AND EASILY ACCESSED FROM  BOTH  A SOCIAL MEDIA NETWORKS' APPLICATION AND WEBSITE, AND SHALL ALLOW THE SOCIAL MEDIA NETWORK TO PROVIDE A DIRECT RESPONSE TO ANY INDIVIDUAL REPORTING HATEFUL CONDUCT INFORMING THEM OF  HOW  THE  MATTER  IS BEING HANDLED.

And now my policy:

Reporting mechanism: My contact information is on my website, and the comments on the blog are currently open.

Policy: It’s my blog and I will accept or reject such comments as I so choose. I do not seek your approval, or that of any governmental official, to make my decisions. I might take action from a complaint, or I might not. I might tell you I took action, or I might not. I answer to no one. That is my policy.

Do you think my policy looks like a great, big middle finger to the New York government? Well, you might not be wrong. But the state doesn’t tell me what my policy must be, only that I must have one. And now I have one.

Currently, Eugene Volokh is refusing to put a policy in place and challenging this idiotic law on First Amendment grounds with the assistance of the Foundation for Individual Rights and Expression (FIRE): LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

FIRE/Volokh point out that merely calling the words on a digital page conduct doesn’t make it so. It is speech:

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment.

Performative legislating sucks, be it from the right or the left.

Update: On February 14, 2023, this law was blocked by a Judge Andrew L. Carter, Jr. (S.D.N.Y.), as violative of the First Amendment. Eugene Volokh has the decision at the Volokh Conspiracy at Reason.

July 14th, 2021

What is a Signature? (Does your unsigned email count?)

We lawyers love, love, love our formality, oft times filling pages with pretentious legalese. I’m sure that wax seals and red ribbons were invented by lawyers, to make doubly, triply sure that everything was authentic. And redundant.

And when seals and ribbons went by the wayside, wet ink signatures became the standard-bearer of authenticity.

Last week the Appellate Division (First Department) confronted the formality of signatures regarding a settlement. The court sought to answer a question: If lawyers agree to a settlement via our now ubiquitous email, but use a standard signature block instead of retyping their names, is a settlement valid?

In other words, what kind of seals and red ribbons do we now need?

While at first blush this looks like a small esoteric question of law regarding the informality of email and the courts’ respect for stipulations, it has the potential to carry over to a thousand different aspects of law as now practiced.

The fact pattern of The Matter of Philidelphia Insurance v. Kendall is not too complicated (if you practice personal injury law here in New York), but for the others a short background: The liability insurance you buy for your car is not for your injuries, but for the injuries of others in a collision. Thus, if the other person has only a $25,000 policy, you might be shit out of luck — a technical legal term — if you lost your leg. That’s why you buy Supplementary Uninsured/Underinsured Motorist (SUM) insurance. That part is for you. If the other driver has only $25K in insurance, and you have $1M, you can turn to your own insurer for the $975K difference.

And that’s what happened here. Kendall was clobbered in a collision. The motorcycle that hit her had only the 25K minimum but she had $1M in SUM. She collected the $25K from the other driver and proceeded to arbitration against her own insurer.

According to the decision, this funky fact-pattern popped up regarding the arbitrator’s decision and settlement with the arbitrator awarding the maximum 975K. But Kendall’s lawyer settled for only 400K because he hadn’t see the decision yet:

The arbitrator rendered her decision on September 16, 2019, awarding Kendall $975,000. The same day, the decision was emailed to Kendall’s counsel and faxed to Philadelphia’s counsel. However, neither counsel received the decision and they continued to negotiate. On September 19, 2019, the parties reached an agreement to settle the dispute for $400,000.

How did they shake hands on this deal? Via email:

On that day [Kendall’s] counsel emailed [Philadelphia’s] counsel: “Confirmed -we are settled for 400K.” Below this appeared “Sincerely,” followed by counsel’s name and contact information. Shortly thereafter, [Philadelphia’s] counsel emailed in reply, attaching a general release, styled a “Release and Trust Agreement,” and saying, “Get it signed quickly before any decision comes in, wouldn’t want your client reneging.” [Kendall’s] counsel answered, “Thank you. Will try to get her in asap.” This email concluded with the same valediction, name, and contact information as had [Kendall’s] counsel’s earlier email.

The lawyer for the injured Kendall then learned of the $975K decision and wanted to go back on the $400K agreement, arguing that it was’t “subscribed” as per CPLR 2104 by retyping his name in the email in addition to his prepopulated contact information block.

So, is the email agreement “in writing” as required by statute? If it sounds like a boring one-off kinda issue, you are not thinking of all those emails you send on a daily basis and how those might be viewed by a court.

Now previously, our Court of Appeals had held that a preprogrammed name on a fax transmission did not fulfill the subscription requirement. So email should be the same, right? (Parma Tile Mosaic & Marble Co. v Estate of Short)

The times, they are a changin’. A mid-level appeals court has now held that the old fax decision from New York’s top court is not controlling as the practice of law has changed:

The Parma court wrote in a different era, when paper records were still an important modality, maybe the most important modality, of recording information in law and business. Since that time, the electronic storage of records has become the norm, email has become ubiquitous, and statutes allowing for electronic signatures have become widespread. For these reasons, and those that follow, we find that Parma is not controlling.

While this very same court held in 2013 that “an email in which a party’s or its attorney’s name is prepopulated in the email is not sufficiently subscribed for purposes of CPLR 2104” it has now reversed itself and said “wet ink” signatures are not needed, nor is any retyped signature:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.

In fact, even the signature block doesn’t appear to be needed — it must only be sent from the lawyer’s account, forming a rebuttable presumption that the lawyer sent it:

We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature.

But wait, there’s more: It has been customary over the years for defendants and insurance companies to create ever more complex general releases and settlement agreements. Back in the day, the simple Blumberg form was the gold standard, until those that bill by the hour figured out there may be a bit more gold to be mined by creating ever more complex forms.

The First Department, however, found that the simple email was binding when the sole issue was the amount of the settlement. The digital handshake was good enough, and the formal release wasn’t particularly relevant as it is merely a ministerial condition:

The Release and Trust Agreement was to be further documentation of the binding agreement constituted by the parties’ counsel’s emails agreeing to settle respondent’s claim for $400,000, rather than something on which that binding agreement was contingent. The material term of the parties’ agreement to settle respondent’s claim being the sum of money that petitioner would pay respondent, respondent’s execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a].

So, your emailed agreements will be held up the same as if they had a fancy wax seal and a red ribbon. And probably so too with any other assertion that you make. And those complex general releases that defendants like to waste time with may well be meaningless to a court.

Don’t think twice before hitting send. Think it though three times. Because “send” is your signature.

January 13th, 2015

Roca Labs, Snake Oil and Randazza

I’m on a roll lately writing about idiotic defamation cases, so I might as well do one more. I’ve ignored this one until now. And no, this isn’t about me.

It’s about irreverent First Amendment badass Marc Randazza being sued by Roca Labs.

Who/what is Roca Labs? It makes a weight loss product. And you know what that means?

It means that some folks will call it bunkum, tommyrot and malarkey, say it’s snake oil, and challenge its effectiveness. The owners will undoubtably be called frauds, con men, quacks, hustlers and charlatans, and some may even call them bad names. And that’s before knowing anything else about the product or the people peddling it.

When you combine weight loss potions, tonics, goos, mixtures and other concoctions with free speech, that kind of thing is to be expected.

Yes, my friends, I’ve whipped out that thesaurus again and I’m trying to make good use of it.

Where was I? Oh yes, snake oil. Even Dr. Oz is not immune from such attacks for pitching weight loss products. Just Google Dr. Oz snake oil weight loss and see what you get.

And so it happened that someone gave a negative review of the Roca Labs product on a gripe site called PissedConsumer. I know, I know, you are shocked! Shocked! That such a thing would happen.

But rather than take it in stride, or correct any possible mistakes, the company foolishly brought a lawsuit trying to rid the site of the bad review. The company claimed that, in exchange for a “discount,” buyers of the product agree not to make disparaging comments about it, and that this was “tortious interference.”

So they sued PissedConsumer, despite the fact it is immune from suit under Section 230 of the Communications Decency Act, which protects websites (mine included) from being accountable for the comments that are left on them.

Randazza came in to defend in his own inimitable and very colorful way.

Do I have to tell you what happened next, dear reader? Now people who had no idea that PissedConsumer or this review even existed learned about it.

When Randazza — my attorney in the Rakofsky v. Internet suit — wrote about it, Roca asked him to please stop. As you might guess, asking a First Amendment lawyer to surrender his own First Amendment rights gave Randazza a chuckle. He published the Roca missive.

And then, having not humiliated themselves enough by bringing the first suit, and by trying to get Randazza to surrender his own rights, they decided it would be wise to then sue Randazza. Really, you can’t make this stuff up.

I went through the Complaint looking for the reason for the suit — that is to say, some actual words that Randazza used that are false facts and, therefore, might be defamatory. Because that is what you need in a defamation case, false facts. Being mocked and ridiculed, it may surprise you, won’t cut it in a free speech society.

What I found was them quoting a satiric Halloween tweet from Randazza:

“Some fucker put Roca Labs’ shit in my kids candy bag!”

It took them 38 paragraphs to actually get to this. And from there went on to cite Techdirt and BoingBoing articles that Randazza didn’t write that ripped on Roca. The complaint also cites to portions of briefs Randazza wrote, which I thought was downright silly since there is a litigation privilege with respect to such legal filings. That means you can’t bring a defamation action over them. (See analysis by Adam Steinbaugh)

If there is a cognizable claim in Roca’s papers, I sure can’t find it.

This suit is destined for the trash heap of history. And you know why I know this? Because so much of this complaint is filled with crap. If you want to be amused, look at paragraph 80 where Randazza is “accused” of mocking the Roca Labs legal team.

By putting this in the Complaint Roca has shown that they don’t need Randazza to horsewhip them; they do just fine with self-flagellation.

They also spend some time discussing some of Randazza’s other First Amendment clients, including various pornographers. Apparently, giving legal counsel to those that need it is frowned upon by Roca. Go figure.

Over at Popehat, Ken White notes about the Complaint in a post titled Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza, that:

Roca Labs complains that Randazza’s purpose is to “mock, ridicule, humiliate, harm, and continue his war against ROCA,” but that’s not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn’t explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term “snake oil,” they’d have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”).

Many others have now written about this, I’ve provided some links below, and you can Google “Roca and Randazza” to get more. That might not be as sexy as Bogey and Bacall, but it’s certainly amusing.

While others have written about this, and I hate to do “me too” postings, I write anyway because I think it’s important that when people sue with the intent of silencing their critics, that others take note and expose the attempted censure. And I think that silencing the criticisms is exactly what was intended.

This, by the way, just scratches the surface on much of the weirdness, threats and lawsuits that are going on.

Elsewhere:

Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt (Techdirt, one of 17 stories it has on this weirdness)

Roca Labs Sues Marc Randazza For Defamation (Adam Steinbaugh)

A Case That Will Want to Make You Gag (Above the Law)

Weight loss firm demands $1 million from website hosting negative reviews (Ars Technica)

December 29th, 2014

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

To 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?

Well, 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.

April 21st, 2014

Shooting the Messenger (I’ve Been Sued Again) – Updated

Michael J. Katz

Last year a judge eviscerated an orthopedic expert in open court for being a liar. A legal blogger reported it. And now that expert has taken his wrath out on the blogger by suing him for defamation.

And it turns out that I’m the blogger that reported it, and last week suit was filed against me to the tune of $40 $200* million. This is the story.

You remember Dr. Michael Katz, don’t you? He’s the defense expert I wrote about last year that was subjected to the deeply lacerating comments of Justice Duane Hart, who called him a liar from the bench. And when I say he called him a liar, I mean that he did it many, many times and used the word “perjury” to describe the testimony.

The judge also, apparently, used the phrase “Typhoid Mary” in addition to “a liar and a thief,” and invited the attorneys in the courtroom to spread the word that Dr. Katz had been caught lying, according to the suit.

Just to be clear, as we start here, I had no role in that litigation. Rather, the boundaries of the suit concern my reporting on what transpired in the courtroom and offering my opinions on its significance.

The basis of Justice Hart’s wrath against Katz was a medical-legal exam that Katz did on behalf of a defendant in a personal injury suit. Two issues arose from it.

First, that the brief nature of the physical exam — an orthopedic exam of the shoulder that lasted, according to the transcript of the proceedings, one minute and 56 seconds, but you can view it yourself here on YouTube — conflicted with Katz’s claim that his customary and usual exam was 10 to 20 minutes. The surreptitiously recorded video also shows a couple minutes of history being elicited and the doctor asking what hurt.

Second, and apparently far more important to Justice Hart than the time it took to do the exam, is that he didn’t believe Katz did all of the tests he claimed he had done in that brief period. How do we know that was the most important thing to Justice Hart? Because Katz quotes him saying so in the Complaint.

Katz, according to the judge, makes millions of dollars doing these so-called “independent” medical exams, or IMEs.

I reported on those court proceedings and some of Justice Hart’s lacerating remarks, as well as a subsequent court appearance before him, and reported the judge’s statements that he was going to refer Katz to the District Attorney for criminal investigation, to the administrative judge to commence civil contempt proceedings and to the Office of Professional Medical Conduct to investigate action against his medical license.

That’s a lot of whoopass.

Dr. Katz concedes in his Complaint that Justice Hart made heaps of cutting comments about his integrity, and has now agregated them into one place. This includes comments Justice Hart made both on the record and, allegedly, off.

In Katz’s recitation of facts in the Complaint — a stark re-telling of a jagged wound being ripped open by a judicial gavel — it is asserted that Justice Hart said (¶75)…:

off-the-record, that Dr. Katz’s career doing IME work might be over, calling him a “no good liar,” and told him to retain a lawyer.

And that (¶ 77):

He threatened Dr, Katz with criminal prosecution and imprisonment multiple times, off-the-record, throughout the morning.

And this (¶79):

The doctor’s career doing IME’s might be over. If he gets caught in a lie on something that’s material at trial his future use to anyone is useless, correct? That will follow the doctor forever.

And that Justice Hart said (¶82):

I would strongly suggest you do not do anything because you’re in more trouble than you think. It’s probably that your career doing IME’s is over. It’s possible, unless this case is settled, that I might be taking more – the attorneys have a duty basically not to do anything with regards to the district attorney. If I find out or if I even suspect something is going on I have a duty to get in touch with the district attorney and getting in touch with the district attorney is not a good thing for you in this case. Understood?

And that this occurred in the presence of Katz’s criminal defense attorney who subsequently appeared (¶84):

Justice Hart announced, in open court, but off- the-record, “Your client is a liar and a thief.”

And this (¶95):

During the court appearance, despite stating that he would seal the record in exchange for a settlement, Justice Hart actively invited other attorneys who were present, or even in the courtroom on unrelated business, to order copies of the transcript in order to “spread the word” concerning Dr. Katz’s alleged perjury.

And this (¶98):

Justice Hart referred to Dr. Katz as “Typhoid Mary” and accused him of “getting caught red-handed in an out-and-out lie,”

And this (¶99)

he gave a laundry list of tests that he did…Did he perform those tests in whatever time he did [sic] that he testified to? No.”

And this (¶120):

Off-the-record, Justice Hart continually pressured Dr. Katz to state on the record he would no longer practice “medical-legal” examinations, repeatedly berated Dr, Katz, stating that “his career was over,” and even stated that defendants’ counsel wanted to “tear [Dr. Katz] a new asshole.”

And this (¶128):

Again counsel, it is not the time so much if the doctor thinks he can explain the time. It is not the time problem. It is that there are tests that he testified to that he didn’t do. That is the perjury.

And this in trying to persuade him to retire (¶128):

I unsealed the record. Everybody from now on when he testifies as to the tests that he performed, it is always going to be questioned from now on. After about a month or two, nobody is going to go near him anyway. So he is not giving up much. What he is giving up is me referring it to the District Attorney and to the Administrative Judge. I would think that he wants to consider it again. Nobody is going to go near him.

And this to his criminal defense lawyer (¶130):

It is that the tape shows that he didn’t do the tests that he spent a considerable amount of time talking about that he did. That is the perjury. Yes, he didn’t do the tests. It is not just me saying it. It is not just the plaintiff saying it. The defendants are saying it too. Does your client really think if the insurance industry or some of the insurance companies that hired him before when they find out he lied, do you really think they will go near him?

In other words, the damage to Katz’s reputation were based on the exceptionally sharp comments of Justice Hart. The was brought on, according to the judge, by Katz’s conduct.

But Katz can’t sue the judge. Hence the title of this post, Shooting the Messenger, for I was the one to report it.

I ask you dear reader, is this not newsworthy? Especially in light of Katz’s claim that he has “testified in countless personal injury and medical malpractice cases as an expert witness, most often for defendants, over the past twenty years” (¶10) and that he was “one of the premier expert witnesses in the field of orthopedic medicine” by the time this case came up (¶41) and that he was “a highly regarded expert witness in the area of orthopedic medicine” (¶44).

So, if you take his self-description at face value, yes, the trauma to such a person’s integrity by a judge would certainly seem to fit any definition of newsworthiness.

Katz also claims in his lawsuit that “there is no indication” Justice Hart carried through on his statement that he would refer him to the D.A. or to the Office of Professional Medical Conduct (¶22). Maybe he did, maybe not, I have no way of knowing since investigators don’t generally blab about what they are investigating. And apparently, Katz doesn’t know for sure either.

But then, quite oddly, he repeated this mantra of the judge allegedly not subsequently reporting. He repeated it many, many times. As if the judge’s conduct subsequent to publication was important. This is a sample from the Complaint:

149. Turkewitz also falsely stated and implied that Dr.Katz was being investigated by the Attorney General’s Offîce and the Office of Professional Medical Conduct despite the fact there was no evidence of any such investigation when Turkewitz published his blog posts.

Given that Katz had already quoted the judge saying he was going to do exactly that — report him to the D.A. and Office of Professional Medical Conduct — it is bizarre to complain that I reported it. How can it be defamatory to report on what a judge said?

This is one of the many comments that Katz himself quotes of Justice Hart on the issue (¶124):

Let the record reflect that I gave Dr. Katz the option of and I would institute a special proceeding to retire from the medical/legal business. Retire at the time and he has declined. What I am now going to do, I am going to order a full transcript of everything, the trial and the subsequent proceedings. I will present that to both the administrative judge of Queens and the District Attorney. I would recommend to the District Attorney that they explore prosecuting Dr. Katz for perjury.”

This dumping of crap into a complaint indicates a person scrambling to find an issue somewhere, someplace. And it reminds me of a post I wrote last year, on the importance of lawyers saying “no” to potential clients. Lousy defamation cases happened to be one of my examples.

Vetting a new case is important. The fact that a potential client has hurt feelings because a judge said mean things about him, and it was reported, is not enough to sustain a defamation lawsuit. Not in the United States, anyway.

In my postings I offered not only my opinions on why the potential legal troubles were significant to Katz, but more importantly, offered my opinions in a series of posts about why I thought this was one piece of evidence of pervasive insurance fraud that I believe is ongoing by the insurance companies themselves. I’ve called for an investigation by New York State Attorney General Eric Schneiderman or NYS Financial Services Superintendent Benjamin Lawsky (as he oversees the insurance industry).

You may consider these calls for an investigation my petition for redress of grievances.

And now I’ve been sued for my efforts. That’s right, sued for reporting on proceedings in open court and offering my opinions.

I think that most people with even a rudimentary understanding of our First Amendment would know that such a suit is verboten. And certainly anyone that has gone to law school must know this. Because both the freedom of the press and the right to petition for redress of grievances are two our First Amendment freedoms.

And lest the part about a free press be unclear, New York has its own Civil Rights Law § 74 that makes it even clearer, though Katz and his counsel seem to be blissfully ignorant of it:

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, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.

The Complaint makes some other patently idiotic allegations, such as this one (¶25):

Turkewitz attempts to generate interest in his site by posting seemingly provocative and/or scandalous material.

Even if was true true — and the ABA Journal apparently didn’t think so when it kept picking me for its Blawg 100 and selected me for its Blawg Hall of Fame, based on being “a great source for news and commentary” — what difference would it make?

Is the citizenry supposed to curtail opinions because a writing is provocative? Can anyone else hear Thomas Paine laughing? Has anyone seen cable “news” shows lately or listened to talk radio? Rush Limbaugh (and a gazillion others) would shrivel up and die if he couldn’t be provocative or scandalous.

So where is the gravamen of the complaint against me? It is by this type of allegation (¶27):

Turkewitz falsely stated and implied, among other things, that Dr. Katz had committed perjury, fraud and was guilty of racketeering. Turkewitz’s blog posts were intended to create the impression that Dr. Katz had been charged with and/or convicted of criminal perjury and other crimes which would make him unfit to act as an expert witness.

The problem with the allegation is that I never said he was convicted of anything. And Katz’s lawyer knows that, which is why there is no quote of me ever writing such a thing. But it does get repeated many times, as if repeating it like some talismanic incantation will magically make it truthy.

And then there is this one (¶28):

Turkewitz’s blog posts go so far as to expressly compare Dr. Katz to a “convicted felon” and a “prisoner.” Dr. Katz was not charged with or convicted of any crimes.

Nope. Missed again. There is a reason there is no real quote from me. Because this is what I actually wrote about witnesses in general (with reference also to Dr. Robert Israel, who has his own problems from medical-legal exams):

Defense attempts to preclude Drs. Katz and Israel from testifying in future trials seem doomed to fail. They are, after all, eyewitnesses to injuries. If a convicted felon came upon a car accident shortly after it happened and saw injuries, would he be precluded from testifying simply because one side or the other didn’t like his testimony? If he saw the injuries a month or year later, would he magically be precluded? Are prisoners precluded from testifying? Making matters worse for those that hired these doctors over the years is that they are responsible for creating them as witnesses.

While the medical-legal examiner is an expert that can give opinions, s/he is also a fact witness as to what transpired on a particular day. A fact witness is a fact witness. It matters not if the witness to a collision is a nun or a felon, or the witness is a doctor hired to defend a lawsuit. The only question is whether the witness is available to testify.

And my opinion is shared by my co-defendants, Paul Kassirer at defense firm Lester Schwab. Kassirer is quoted in the Complaint with having sent my initial posting about Katz via email to other defense lawyers with this comment (¶212):

“More to the point, even if he is eventually arrested and convicted of perjury, NY law is clear that he is not legally ‘unavailable’. Accordingly, whoever has retained him will not be entitled to another IME. As long as he was licensed and was competent at the time of the exam, he can testiff and therefore is not ‘unavailable.’

And this is all backed up by New York law, as Katz is certainly not the first witness to experience legal or credibility issues. On February 27th of this year, Justice David Schmidt in Brooklyn dealt with this exact issue regarding Katz, and concluded that the defense attempt to preclude his testimony must fail. In Atchinson v. Metropolitan Enterprises, he wrote, after describing the comments by Justice Hart:

“[t]he defendants’ concern that the plaintiff may impeach the examining physician’s credibility … [is] not a sufficient basis to compel a second examination” (Carrington v Truck-Rite Dist. Sys. Corp., 103 AD3d 606, 607 [2d Dept 2013], citing Schissler, 289 AD2d at 470; Futersak v Brinen, 265 AD2d 452 [1999]). The instant facts are analogous to the cases of a public attack on the professional credentials of an IME physician; such cases hold that instances of compromised professional integrity do not warrant a subsequent IME (see e.g. Giordano v Wei Xian Zhen, 103 AD3d 774, 775 [2013] [fact that examining physician was arrested and surrendered medical license subsequent to examination and note of issue filing does not justify additional examination]; Carrington, 103 AD3d at 607 [same];Schissler, 289 AD2d at 470 [fact that examining physician was subjected to professional discipline subsequent to examination and note of issue filing does not justify additional examination]; Futersak, 265 AD2d at 462 [same]). Defendants advance no authority suggesting that the present situation concerning Dr. Katz is distinguishable because he has been accused (as recorded in a court transcript) of perjury.^[5]

In the subject heading, I wrote that I’ve been sued “again.” I was sadly, dragged into the Rakofsky v. Internet fiasco. My response in that suit was to say, “go shit in a hat and pull it down over your ears,” though I did offer the pseudo-legal latin version for those that want lawyers to speak pretentiously: vade et caca in pilleum et ipse traheatur super aures tuos.

In that post, I also detailed the other times I was threatened. I’ve also defended another defamation suit with a take-no-prisnors attitude. It has never ended well for those that threatened or sued.

Was filing this suit a dumb thing to do? Yes, on multiple levels.

First, if Justice Hart didn’t previously report this matter to the D.A. or the Office of Professional Medical Conduct, this suit may act as a reminder.

Second, Katz has now further publicized the vicious tongue-lashing that he received from a judge. I learned about it from a New York Post reporter, and that call was followed up by a Daily News reporter, both the day after it was filed. Who alerted them?

By suing the messenger, Katz invites not only repetition of the claims he has catalogued, but enormous backlash from free speech advocates. There are a great many people who don’t take kindly to frivolous defamation claims and the chilling of free speech that often comes with them. There is a fair chance that those who did not previously know about Katz, will now learn.

Updated 5/28/14: Justice F. Dana Winslow has ruled on a motion in another case about whether Katz can be cross-examined on Justice Hart’s conclusions. The answer is, yes he can. The matter is Graser v. Dimeo, where Katz claims to have done a 45-minute defense medical exam.

This was the reasoning:

It is well settled that, for impeachment purposes, a witness may be cross-examined with respect to prior immoral, vicious or criminal acts which have a bearing on the witness’s credibility. Badr v. Hogan, 75 NY2d 629. The Court of Appeals has extended the rule beyond the “immoral, vicious or criminal’ categories to include prior conduct that simply demonstrates the witness’s “untruthful bent,” such as using an alias [People v. Walker, 83 NY2d 455], or publishing books advocating cheating [People v. Coleman, 56 NY2d 269].

The cross-examiner must have a reasonable basis in fact for asking questions about prior misconduct, and must do so in good faith. People v. Kass, 25 N.Y.2d 123; People v. Green, 272 A.D.2d 341. If the witness denies the prior misconduct, the cross-examiner may press the witness further, but is not permitted to introduce extrinsic evidence to refute the witness’s denial. Id., at 635.

In the case at bar, the Court finds that plaintiff has a reasonable, good faith basis, to cross-examine Dr. Katz regarding the truthfulness of his testimony in the Bermejo Action. Dr. Katz’s prior conduct need not have resulted in a formal adjudication of wrongdoing. It is enough that facts exist which tend to show a propensity for untruthfulness; that is that Dr. Katz gave false information in circumstances in which he was required to be truthful. See People v. Walker, 83 NY2d at 461. Plaintiff’s counsel may ask Dr. Katz about his testimony in the Bermejo Action and about the underlying facts which suggest that his testimony was false. Counsel may not, however, call other witnesses or introduce extrinsic evidence (such as the video recording), to refute Dr. Katz’s answers.

Although such inquiry may be prejudicial to defendant, the Court notes that if it weren’t, it would be of no use to the plaintiff. The question is not whether such inquiry is prejudicial, but whether it is unfairly or unduly so. The Court determines that it is not. Where, as here, the inquiry has a factual basis, and bears on the question of the witness’s credibility, it is fairly and properly allowed. See Castillo v. 62-25 30th Avenue Realty, LLC, 74 AD3d 1116 (allowing defense counsel to question plaintiff’s treating physician regarding underlying factual allegations that led to suspension of his license to practice medicine); Spanier v. New York City Tr. Auth., 222 AD2d 219 (allowing defense counsel to question plaintiff’s treating physician about prior allegations of improper billing).

The Court thus finds no basis to bar the cross-examination of Dr. Katz regarding the proceedings in the Bermejo Action. The nature and extent of such cross-examination is left to the discretion of the trial judge. See Badr v. Hogan, 75 NY2d at 634.

* While I originally wrote the suit was for $40 million, that should have been $40 million for each of five different causes of action for an aggregate claim of $200 million.

Elsewhere on the suit:

Simple Justice (Scott Greenfield):

This has nothing to do with the fact that Justice Hart found Katz to be a liar, of course, but it’s all that Turk’s fault because he posts “provocative and/or scandalous material.”

Legal Satyricon (Marc Randazza):

If Dr. Katz dared to file suit in Nevada, California, Oregon, or a growing number of other states with meaningful anti-SLAPP statutes, his litigation campaign would likely end post haste. It would be thrown out of court, and the judge would bruise his ego in the shape of the defendants’ attorneys fees and costs. But this is not California, or even Nevada – it is New York. Without meaningful relief, we are left only with the disinfectant of cleansing light shone upon those who file such censorious lawsuits.