December 21st, 2012

Twittering With the Enemy (A Blogospheric Celebration)

Yesterday I re-tweeted something that Ted Frank wrote over at Point of Law; a piece about lawyers whining about no work. His point — after noting that he started up a successful public interest law firm dedicated to objecting to class actions that don’t treat the plaintiffs well — was that there were many good causes out there for lawyers to get involved with. Get off your ass, he effectively said, and go find a cause to represent.

The main point that I took, before he addressed a myriad of potential legal issues, was how much he enjoyed what he was doing as opposed to the career track toward academia he had anticipated. He wrote that he

discovered how much I like litigation when I have autonomy and don’t have to make arguments I don’t believe in, and discarded the idea of writing law-review articles no one would read. Today I have two attorneys working for me, a fascinating docket, and get to argue more appellate cases every six months than I did in my entire ten-year BigLaw career.

Frank’s political views, of course, are not universally shared, particularly by members of the plaintiff’s personal injury bar. But he did address, as I said, a number of issues that could be raised by lawyers looking for new career tracks.

There are three different reactions that I’ve seen, though I think the last one might be the most important…stick with me here, because this time I have an actual point to make.

The first reaction to the Frank piece came from Max Kennerly (First Lesson For New Plaintiff’s Lawyers: If It Was Easy, Everyone Would Be Doing It). Kennerly is always a good read, and he gets into the nitty gritty of the details of the clients and lawyers actually meeting each other:

plaintiffs’ law firms don’t just discover viable legal claims somewhere in the world and file them, they only enter the picture after clients find and hire the lawyers. Marketing lawyers is hard work.

He goes on to discuss — and I won’t give it all here because I think you should head over to his site and read it yourself — the extraordinary difficulties of the entire contingent fee arrangement and trying to fund mass actions:

Frank is arguing for inexperienced, poorly capitalized lawyers to dive right into expensive and prolonged complex litigation involving procedural mechanisms (e.g., the class action) and causes of action (e.g., antitrust) that are routinely attacked by no less a force than the United States Supreme Court against defendants with essentially unlimited resources, like “Ivy League schools” and “the Obama administration.”

The second objection comes from Elie Mystel over at Above the Law. First he identifies the problem:

the problem is that “the reason” most people went to law school was “money.” The “cause” most people signed up for was “risk-averse earning potential.” Frank is essentially telling a group of mercenaries to find a cause they believe in and fight for free for a time, and then the money will come. And it’d be great advice except for that fact that most mercenaries didn’t get into the business for a cause, they’re in it for the cash.

But from there Mystel digs deeper and points the finger at the law schools that teach legal theory, as opposed to the actual practice of law. Young, unemployed lawyers are simply not up to the task of doing what Frank advocates because they’ve never been taught. He notes:

Not everybody has the skills to start their own business, and it’s not like law school spends a lot of time — or any time whatsoever — teaching and training people in the art of making money with a J.D. Heck, there are hard-working, incredibly intelligent partners at law firms who have no freaking clue how to market themselves or their legal expertise. We call them “service partners,” and they’d probably be working for the hourly rates of an SAT tutor if it weren’t for “rainmakers” with business savvy who know how best to turn talent into money.

Scraping clients together is hard, not everybody knows how to do it, and law schools aren’t teaching people.

And finally, there is a third objection that I didn’t expect, and the one I consider most important. This one comes from “Michael” on Twitter, who was displeased that I (and Dave Waterbury) re-tweeted Frank’s piece to begin with:

@Turkewitz @dewesq55 Really? Sending a link advocating undercutting standard fees on contingency fees = asking for a race to the bottom.

That is correct, I re-tweeted something even though I had disagreements with parts of it and even though Frank has a long history of being a tort “deformer” whose political views I oppose. And you know what? I once hired him as my attorney anyway. I explained that in detail a few years ago: Turkewitz v. Yahoo (Meet My Lawyer, Ted Frank).

Now the point I wanted to make — I told you I would get here: When I was just a baby blogger, some six years ago, I was irritated by some point or article that Walter Olson noted at Overlawyered and wrote a response. And Olson proceeded to give me the best damn lesson in blogging that I ever received: He amended his post to say, and for an opposing view, see Turkewitz. WTF?

“The enemy” had just given me link juice and readers. It took just a heartbeat to fully comprehend the nature of the blogosphere. We are not islands unto ourselves, but this is an ongoing conversation. Nor is this a conversation to be had solely among those with whom we agree. What good is that?

Unlike many politicians (and arguing spouses) that simply talk past each other, barely even acknowledging the position of the other, Olson engaged. And with less than a year under my belt, he then added me to his blogroll (which I wrote about).

Frank wrote something that was interesting. People responded. They may agree or disagree with him, but this is what makes for a vibrant blogosphere. Let us celebrate.

Why is this important? Because many still don’t get it, with social media gurus telling clients to fill their blogs with all manner of Google friendly search terms regardless of the dreck it produces. This is a favorite topic of people like Scott Greenfield and Brian Tannebaum.

Look at the four faces you see in this post. That, my friends, is how blogging is supposed to be done. Break out the boxing gloves and debate the merits and to hell with what the social media gurus tell you about how Google thinks. Google, you may be surprised to learn, could be a tad smarter than you think.

October 5th, 2012

App Court: You Ain’t Gettin’ Those Facebook Files

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago, deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.

February 24th, 2012

New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

October 31st, 2011

I’m Changing My Blog (No More Mr. Nice Guy)

No more Mr. Nice Guy. I need to toughen up my image a bit.

I started thinking of this two years ago on Halloween when I walked around the neighborhood with the Bogeyman. Maybe, I’m just too nice. So I took a shot at Monster Energy drink and its monstery conduct. That felt good, but maybe I was still too nice. After all, when I put this blog up for sale on eBay, I didn’t get any bites; something must be wrong.

So this year I’m going all in with a change of ‘tude, as the kids like to say. Since I’ve finally been convinced by the social media experts that I am doing this bloggy thing all wrong, it’s time to pull the trigger on change.

Henceforth (one of those big lawyer words I should use more often), I’m going to use this blog to be more aggressive and talk about me. Grrr. You can see the new me in the masthead and in the picture at right, as I decide to toughen up my image. (And if you’re reading this in email or RSS feed, you’re just going to have to visit the actual website to see the masthead to know what I’m talking about. Offer expires at midnight tonight.)

Part of my current inspiration comes from the Steven J. Baum law firm, a Buffalo area foreclosure mill for banks, who last year mocked, ridiculed and derided, at a Halloween party, the poor whose homes they were taking. And really, isn’t revelling in the misery of others part of what being a lawyer is about? Never mind that the firm, according to the New York Times:

…recently agreed to pay $2 million to resolve an investigation by the Department of Justice into whether the firm had “filed misleading pleadings, affidavits, and mortgage assignments in the state and federal courts in New York.”

Now that is what we call aggressive.

And then there is the other kind of aggressive, for which we turn to one Horace Hunter. He was snagged on ethics by the State of Virginia for using his blog for advertising purposes, and therefore requiring a disclaimer. It seems he likes to talk about himself a lot on his blog. So Virginia demanded the disclaimer as per its ethics rules, and Hunter snapped back with “This Week in Richmond Criminal Defense is not an advertisement, it is a blog.”

He lost, and has now been officially admonished. But. You gotta love that aggressive attitude, and isn’t that the point? Grrr. And look at all that press it earned him! He must be doing something right. Here’s a sampling: The Lawyerist, Simple Justice (“If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme). Stop calling them all blogs. They’re not.”), My Shingle (“Hunter’s “blog” really isn’t a blog at all, at least as I define the term. It’s more akin to a running news feed, with at least half of the “posts” reporting on cases that Hunter or his firm handled…”) and more.

But Hunter, of course, didn’t originate the idea of devil may care, sell your soul self- promotion. No siree. Take a look at some of the other ads out there…..ahh, these are six you really have to admire.

So let’s forget about professionalism and results. Forget competence and knowledge. Forget the tarnished image of the profession. Forget about clients. Let’s use this blog to talk about what really counts: Me.

It’s become clear that, in order for me to compete in this brave new world, I’m going to have to take some drastic steps. Ergo, the new me.

Grrrr.

October 28th, 2011

Appellate Court Strikes Facebook Disclosure Order for “All” Records; Lower Court Forced to Do Review

A New York appellate court yesterday struck a lower court determination that all Facebook records had to be revealed in discovery in an auto accident lawsuit, and directed the lower court to restrict plaintiff’s Facebook information only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

That order, in Patterson v. Turner Construction, essentially forces the lower court to do an in camera review of all the Facebook records, and will similarly force other courts that consider Facebook disclosure demands to appreciate that they may be swamped with documents to review each time such disclosure is considered.

The discovery of social media records is a pretty hot topic, and will continue to be so for some time, as courts struggle to see how the myriad ways that people express themselves, and the spectacular quantities of information that are being created in the digital age, fit into the arena of traditional discovery permitted in personal injury cases. I’ve covered that subject a couple of times before:

The Unseen Danger of Social Media (Twitter, Facebook, and More) (10/20/09)

Demand for Facebook Records Rejected by NY Appellate Court (11/17/10)

So yesterday, the Appellate Division (First Department) reversed a lower court order that had:

granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived

That was a pretty broad lower court order, and the appellate court was not going to endorse it. Facebook records, the Court ruled, “are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, “but at the same time, that doesn’t mean the defendants have carte blanche to go on a fishing expedition through a person’s entire personal life just because they brought a lawsuit. Essentially, the Court must itself go through the discovery to determine if the information “is relevant, in that it contradicts or conflicts with plaintiff’s alleged [claims].”

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter, emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And because this will be such a big burden for lower courts, judges are likely to demand that the requesting litigants show a “factual predicate” for making the demand in the first place, that the Fourth Department discussed last year in McCann. V. Harleysville Ins. Co. That court wrote:

Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence

So that is the current state of New York law on trying to obtain Facebook records. A defendant must show a “factual predicate” to make the demand, and if the court grants the request, then the Court will have to go through the records itself to find anything that might be relevant.

The basic rule of the digital age should be this: Don’t type anything to anyone or type anything into any forum, that you will be ashamed to see on the front page of the paper or exposed one day in a courtroom. The story of Dr. Flea should have made that clear.