June 2nd, 2016

A Lawyers’ Listserv Gets SCOTUS Recognition

Sign inside the Supreme Court on Tuesday.

It came as a shock to everyone in our informal listserv group that was sworn in on Tuesday to the Supreme Court bar.

When we entered the building, we were asked what group we were from. Ummm, each of us stuttered, a group of trial lawyers from New York organized by Jay Breakstone?

“You guys the Rogues?”

Holy shit! The SCOTUS marshals and clerks knew the jokey name of our informal listserv!? No way!

We were at first startled and flabbergasted, then astounded and amazed. Our little group of 28 New York personal injury lawyers, plaintiffs-side only, walked up the interior stairs of the Court, following those clerks and marshals, who all knew we were “the Rogues,” pointing us in the right direction.

Rogue was the nickname bequeathed upon us 15 years ago, as local legend goes, when we banded together outside the confines and restrictions of any official bar association. A member of the “official” bar association listserv called us rogues for doing our own thing, and as one friend notes, “We took it and ran with it.”

The vast majority of us were solo and small firm practitioners, who simply recognized a need to share information as we litigated against significantly more powerful interests. If we were truly independent we could talk about any issue, and this was a win-win for all participants.

Mostly, this is the type of information that any hyper-local group of niche practitioners would want to share: Can you believe that decision yesterday in Rogue v. Carrier? What are the skills and temperament of opposing counsel? Does anyone have information on Jane Expert? Does Judge Jones skew toward the defense? And for god’s sake, it’s “Leave the gun, take the cannoli,” not the other way around.

In my first job out of law school, finding and sharing information wasn’t really an issue. Like most folks at medium or large firms I could just poke my head into someone else’s office, or chat at lunch, about a particular issue. Not so, however, for the solo practitioner.

Over the last 200+ years, lawyers have shared information outside their firms in a variety of informal and formal ways — perhaps at taverns over our first hundred years as a nation, and at formal bar association meetings and dead-tree publications over the second hundred.

And now as we soar through our third hundred years, we quickly share things electronically. The more knowledge we have, the better we can help our clients. Previously this information passed slowly, and now it passes instantaneously.

Such listservs exist all over the country, and likely all over the world. And while the existence of such listservs isn’t exactly a secret, the contents of the communications obviously are. If a lawyer wanted to share tips on opposing counsel Leo Drummond, for example, it might be helpful if Drummond didn’t know.

I first wrote about my particular group in 2008, in The Million Dollar Listserv, when knowledge of a change in the law was discussed and I was able to race to the courthouse to beat a filing deadline as a result — to the huge benefit of my client. The next time my group met at a big, informal dinner, I bought the first round of drinks. It was my way of showing appreciation to an extraordinary group of people who were helping each other.

Over time, our group met up both at continuing informal dinners as well as at formal lawyer functions, and we put faces and personalities to the names that were attached to our digital messages. The growth of the group then led to shout-outs at some of those bar functions. But the public discussion of actual details was, and remains today, absolutely verboten.

Many judges soon came to realize that this underground group existed, despite the lack of any address, phone, fees, formal publications or legal standing of any kind.

This change in how legal knowledge is shared was in full effect Tuesday in the Supreme Court of the United States as we saw the name of our informal listserv adorning the conference room door.

But wait. There’s more.

Because we eventually marched in to the courtroom for the motion to be admitted to the bar. Breakstone was called to the lectern. And Chief Justice John Roberts specifically spoke the name of our private little listserv in open court. From his perch on the highest bench in the land.

It’s kinda amazing to see a private listserv mentioned not just in open court, but being mentioned in this particular court.

When Justice Ruth Bader Ginsburg met with us afterward, her first question had to do with the Rogue list name. And Breakstone explained, on behalf of the group, of the need for small practitioners to band together to help level the playing field with the sharing of information.

There isn’t anybody that could have conceived, 15 years ago when the listserv was started via email exchanges, that this would have happened. But it did.

I attribute this to a confluence of events, including not just the advancement of technology but the recognition that all of us can benefit from additional knowledge when trying to represent a client. There is a need to share, there is a technology to do it, and the two met up quite nicely.

Ironically, court-watcher Dahlia Lithwick wrote in Slate yesterday about Tuesday’s proceedings. From her vantage point in the press gallery the day was a yawner, with the judges appearing bored out of their minds. She wrote in her lede:

Sitting in the press section at the Supreme Court this spring is a lot like sitting on the bridge of the Starship Enterprise when Captain Kirk has been forced to downgrade life support to minimum. Lights seem to flicker gently. Dazed reporters drift down the halls like tumbleweeds. On Tuesday, Justice Samuel Alito didn’t even show up for opinion announcements.

It’s funny how the same day and same events look vastly different when viewed through different prisms. She sees boredom while I see a centurial change in the way that lawyers acquire and share information.

It isn’t enough at this point, to simply tip my hat to my fellow Rogues. What is important, I think, is that each practitioner, especially the small firms in niche areas, find (or create) that band of brothers and sisters to share your mutual knowledge and experience.

You never know where that need to share information may lead.

July 15th, 2015

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked? What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it. I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

Now I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackled in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:

While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’ve become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness. Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?

———

Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay Wolman @ Legal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)

June 16th, 2015

The First Rule of Lawyering

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

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

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

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

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

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

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

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

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

But if you have been acting like Attila the Hun and thought it was good lawyering to deny even small courtesies to the other side? Well, guess what?

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

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

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

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

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

And that is what serves the client.

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

Best lesson in the law I ever had.

September 30th, 2014

Loving Your Office

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.

August 26th, 2014

GPS is Making Us Dumber (And other thoughts on the law)

Some folks want directions when they go someplace new. Others want a map.

The directions tell you lefts and rights. The map tells you where you came from and where you need to go.

Many GPS devices simply tell you to make those rights and lefts. They don’t tell you where you are. And thus we become unthinking followers.

GPS devices were wrong at least twice on last week’s family vacation in Maine, once while I followed a family member and a second time while sitting shotgun. The GPS said to go one way and my brain said to go the other. The only reason I overruled the GPS directives was because I’d looked at a map before leaving.

So how is this related to law? All too often I see it at depositions, where the other lawyer comes prepared with page after page of questions to ask — the same questions at every deposition.

The lawyer follows the directions given, dutifully jotting down the responses.

The highly detailed outline is like the GPS. It tells you which questions to ask, but doesn’t give you a road map of where you actually need to go.

But the road map exists. It’s in the instructions that the judge will give to the jury at the end of the case. This is the map of what you need to prove, and thus needs to be the focus of the questions. It isn’t just that you need those instructions before the deposition, but that you need them before you file suit (or when retained to defend).

This requires thinking, not following. The lawyer that thinks, instead of follows, will do a deposition that is half as long and twice as useful.

It’s OK to have a general outline, of course, as you wouldn’t want to miss out on an important topic. But becoming a slave to the outline is the danger. Topics are good, specific questions from stock outlines, not so much.

My advice: Leave the directions, take the map.