November 17th, 2016

10 Years of Blogging (A Retrospective, Part 1 of 2)

ny-personal-injury-law-mastheadI started this blog 10 years ago today, absolutely clueless about what I would do with it.  I just liked to write and figured this would be a good arena to take oft-times complex subjects and break them down to their easy components. (The Purpose of the New York Personal Injury Law Blog)

After putting up that first little post I remember telling my webmaster about the six hits I got from that post. I found readers so quickly! He told me they were Bulgarian spambots.

Since then I’ve appreciated something that I didn’t appreciate back then: That the practice of law, even in a small niche like mine, has an extraordinary breadth.  There was no real reason to limit myself to local judicial decisions, or trial practice and tips.

And so I have ranged far and wide into the subject of attorney marketing and ethics, Supreme Court nominees, tort “reform,” bar exams, confidentiality and privilege, insurance fraud by the insurance industry itself, and the First Amendment.

And I’ve written about running a few times, because it’s my blog and I get to make the rules.

Among the few rules that I actually try to follow:

  1. No personal attacks. There is a difference between tearing into someone’s argument and an ad hominem attack;
  2. No gratuitous coverage of local incidents where people are likely to hire lawyers due to injuries;
  3. No self-aggrandizement, or this blog would look like an advertisement, and worse yet, be dreadfully dull; and
  4. Try hard not to do “me too” posts that merely repeat the news/thoughts of others.

Along the way of writing 1,400+ posts, I’ve had over 2M+ page views, and have stumbled into the pages of the New York Times, Wall Street Journal and Washington Post, among many media outlets. The NYT ripped off one of my stories, and the WSJ figured out how to do so also.

I’ve written a few op-eds and appeared in editorials. I’ve done television interviews, given lectures, and appeared on the sides of busses in a NYC Marathon ad.

This humble little site has been viewed in the White House, Supreme Court, Justice Department and CIA, and been seen in 200+ nations, according to Google Analytics. I’ve been sued twice for defamation, and been threatened several other times.  The blog was part of the inaugural class of the Law Blog Hall of Fame run by the American Bar Association, along with just nine others.

In other words, it’s been a bit of an adventure. As I sit here typing, I can’t keep from humming along on what a long strange trip it’s been.

Today and tomorrow I’m going to reach back into the archives to link to some of my favorite posts. And when I say favorite, I don’t mean the ones that received the most number of hits. I mean the most fun to write, or ones that I thought important regardless of what others thought.

Because if you don’t enjoy the experience of writing (regardless of whether you do it well), or believe there is a point to what  you are doing, then you shouldn’t bother blogging. You’d be miserable, and worse yet, your words would suck. If you’re not inspired to write, it will be abundantly clear in the finished product.

And so, without further ado, Part 1 of some of the babies I enjoyed birthing:

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees — This 1997 post hits my list because the suit was brought by a big white shoe firm, and the firm utterly screwed up the simple act of drafting a complaint. And they did so on behalf of a big shot judge for a suit destined to attract media attention. Lesson for laywers: Bigger law firm does not mean better, and if you don’t know what you’re doing, ask.

Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court — Nine years ago a medical blogger decided to live-blog his own malpractice trial, and it was painful on many levels. His posts and the lawsuit attracted very wide attention at the time in the legal and medical blogosphere, and ultimately landed on the front page of the Boston Globe. Lesson: Don’t write anything you’re afraid to see on the front page of the paper.

Who Sits Jury Duty (The Turkewitz Beer Test) — Jury selection is an art. Since I’m not a great artist, this is the way I do it. Your mileage may vary.The Bubbe Maisse Report (aka “Judicial Hellholes”) – Every year the tort “reformers” come out with a “report” to declare judicial hellholes. The problem? It’s merely a collection of favored anecdotes. Does the press care? What do you think?

Supreme Court Grants Cert in “Fantasy Baseball” Case; Three Justices Recuse Themselves Due To Participation in High Court League — I had the idea to write this 2008 post about a month in advance of April 1st, then kept adding to it. And adding. And adding.  I loved writing it, and hoodwinked a few folks. And the premise is still good regarding the circumstances by which SCOTUS judges should recuse themselves.

It was 20 Years Ago Today — Lessons from an around-the-world backpacking trip I took in 1988-89.

Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules? — I had a problem when New York amended its attorney anti-solicitiation rules: How do I write about those rules in practice after a calamity, without it looking like its a covert way of using this blog to solicit? This Miracle on the Hudson splash landing by Captain Sully solved that problem for me, and I’ve been writing on ethics, advertising, marketing and solicitation ever since. The splash landing also had a few other benefits.

As Seen On Oprah! (Kinda, Sorta, Almost) — Back in 2009 Oprah wanted some x-ray images that I have for a piece on medical errors by Dr. Oz.  Her staff proved to me that Oprah succeeded despite them. I just enjoyed writing this, OK? Do I really need another reason? (Side note, Diane Sawyer had no problem striking a deal with me a few years later.)

Your Bar Exam Answer Sheet Is Gone — Now What? — This fun little post about the time my bar exam results vanished keeps getting hit, as bar examiners invent new ways to give test takers a little extra shot of anxiety.  Good preparation for life, I say. And it spawned a series of subsequent posts on bar exam horror stories. If you has the misfortune to stumble on this while prepping for the test, you’re welcome.

The SCOTUS Nominee and the Tissue Box Test -– Supreme Court nominations are always important (too important), and this is my gripe on the lack of judges with real world experience dealing with individual clients.

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? — A post that the Times ripped off a month later, without attribution, and forced a response from the White House.


Do I look lawyerly?

Five Years of Blogging (And Happy Thanksgiving) — A little explanation as to why I do what I do, given on the 5th anniversary of this blog. While in a turkey suit. And since that particular day happens to be on the immediate radar, I think it’s time to dig that suit out of the basement.

Blawg Review #134 (NYC Marathon Edition) – Back in the day, Blawg Review was a thing, a weekly round-up of the best that the legal blogosphere had to offer. So I was delighted that so many bloggers elected to tell me what they were writing about that week while we ran the NYC Marathon. Oddly enough, I was able to coerce more bloggers to come to my house to meet Arlo Guthrie at Thanksgiving, and got The Bogeyman to come with me to the homes of bloggers on Halloween, in a couple of subsequent Blawg Reviews.

Tomorrow, some more posts as I continue to naval gaze at my little creation.


August 3rd, 2011

Judge Robert Bork, Back in the News (Does he still believe in tort “reform”?)

When I last visited the subject of former Judge Robert Bork three years ago it was because his slip/trip and fall case in New York had settled (Bork Slouches into Settlement). For those that weren’t around at the time, he had sued the Yale Club and other entities when he fell while ascending the dais to give a speech.  Judge Bork was widely ridiculed for the suit.

And I was less than kind about the BigLaw lawyer he hired to take on the task, as it seemed clear he had no idea how to draft a complaint in a simple negligence action (Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees). And when he tried to amend the complaint, he didn’t follow my advice and continued  with an error-riddle suit (Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages).

When I wrote that last post, as a public letter to the judge, I concluded with this:

I wish you all the best, but the legal decisions you have made thus far are nothing to brag about. You have already been ripped as a barbary pirate and hypocrite for making such high monetary demands, but something else is also going on here. A former Supreme Court nominee and his elite BigLaw counsel have been unable to competently draft a decent personal injury complaint after two tries. And I’m not sure which of the blunders is more frightening.

And that is the reason I write now on this old matter. For it seems that Mitt Romney has made former Judge Bork  the co-chair of his  judicial advisory committee. And this raises a couple of questions:

1.  If Judge Bork did such a poor job choosing his own lawyer for a simple matter, why would Romney trust him for advice on advice choosing judges?

2.  How does he now deal with the subject of tort “reform” in his judicial advisory capacity, after he brought a suit containing frivolous claims, when he previously referred to such litigants as Barbary pirates?


Bork to Co-Chair Romney Justice Committee (CNN Political Ticker)

Bork Tops List of Lawyers for Romney (The BLT: Blog of Legal Times)

Romney’s new top legal advisor: Robert Bork? (Hot Air)

Robert Bork And Conservative Legal Philosophy Join The Romney Campaign (Talking Points Memo)


May 10th, 2008

Bork Slouches Into Settlement

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork — active tort “reformer,” conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate — to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I’ve covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn’t really specific). Among the demands were:

  • An amount “in excess” of $1,000,000 in compensatory damages;
  • Punitive damages;
  • Legal fees
  • Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don’t know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn’t really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That’s worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn’t know the law, and didn’t hire someone who did. (In fact, Judge Bork’s BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit “embarrassingly silly.” It was so bad that Judge Bork’s own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court’s computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court’s calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork’s reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani’s judicial search committee, and then earlier this week to John McCain’s. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.


May 6th, 2008

Bork’s Lawyer, Randy Mastro, Picked For McCain’s Judicial Steering Committee

Robert Bork’s lawyer, Randy Mastro, has been tapped as a member of Senator McCain’s steering committee for judicial selections. Mastro is currently a partner at Gibson Dunn, and a former Deputy Mayor under Rudy Giuliani.

Of interest to this blog, however, is that he fouled up Judge Bork’s trip and fall lawsuit against the Yale Club, causing embarrassment to the former judge due to claims for “in excess of” of million dollars, punitive damages, attorneys fees and prejudgment interest. Mistakes were made in the Complaint (and the Amended Complaint) that even rookie lawyers wouldn’t make. I chronicled many of the unnecessary legal problems that were created by the botched suit here:

And so it appears that the old adage remains true: It isn’t what you know, but who.

See also:

(Hat tips to Scott Greenfield and Walter Olson)


January 1st, 2008

Another Tort "Reformer" Sees The Light

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys. (LA Times: Lacking Lawyers, Justice is Denied)

Why were they turned down? Because California has a $250,000 cap on non-economic damages (pain and suffering). And since his mom wasn’t working, it meant that any recovery was very limited. When you figure in the tens of thousands of dollars that might be needed for the case, and the vast amount of time, and the high risk of taking such cases, the lawyers weren’t interested.

Now guess what? Dr. Stewart isn’t such a fan of tort “reform” anymore. Surprised? Me either. It happens like all the time. Remember tort “reformer” Robert Bork? He sued big time for his injuries. Ever hear of Frank Cornelius? He wrote in the New York Times in 1994 how he was “crushed by his own reform.” In fact, the blog TortDeform has a gallery of what they term the “hypocrites of tort reform.”

Perhaps these people fall in the category of, “What’s good for thee is not good for me.” Or, perhaps, they have simply never given full thought to the true ramifications of their actions.

(hat tip: Day on Torts)

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