September 18th, 2019

The Golden Rule of Laws

The issue popped up again yesterday. This time, in a New York Times op-ed by Jamelle Bouie.

Bouie suggests that if the Democrats hit the trifecta in the next election — meaning majorities in the House and Senate and winning the White House — that the Dems should pack the Supreme Court with extra judges that they see as favorable.

This is to make up for, he says, the stolen seat that Neil Gorsuch holds because Senate Majority Leader Mitch McConnell refused to do his constitutional duty of holding a hearing and vote on Obama’s pick, Merrick Garland, and the circus behind the confirmation hearing of Brett Kavanaugh when the FBI wasn’t permitted by the Senate to do its full investigation of the candidate and the allegations against him.

Sounds great, huh? Just pack the court to even things out? What could possibly go wrong?

This is as good a time as any to discuss the Golden Rule of Laws. This rule states that when you want to use some legal maneuver to attack “the other side” ask yourself how “the other side” could likewise use it.

While the name might be my creation the concept is not exactly new: What goes around comes around. What’s good for the goose is good for the gander. Karma. You get it.

But Bouie doesn’t get it. He says that in response to the Republican hardball that resulted in these two seats the Democrats should play hardball back. By packing the Court.

He comes to this conclusion by citing a litany of problems, including:

In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.
We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering.

But there’s a significant difference between identifying problems and coming up with good solutions.

And court packing doesn’t really solve any of the problems, does it? When the political tides flip back, and they surely will, the Republicans can do the same thing. And add yet more judges. Just as the Democrats will one day hold up a Supreme Court seat under the “McConnell Rule” in response to the Garland nomination.

When it comes to the potential dangers of the new tactic, he is dismissive:

Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity. There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.

Bouie is not alone in walking this dangerous path. Former governor and presidential candidate Howard Dean suggests that, instead of packing the Court, that certain unfavorable Supremes be rotated out to the trial level District courts. In a tweet he wrote:

Actually the Supreme Court is NOT for life. The Constitution says the federal bench is for life. Which means Supreme Court Justices can be rotated off onto district courts. Since two of them were put on illegitimately, that is important to know.

Same problem, of course. The Republicans can do the same thing when the time comes.

As David Boaz of the libertarian Cato Institute wrote when I twitted about Dean’s proposal: In my experience, neither side ever asks, What if my opponents had this power?

In my experience, neither side ever asks, What if my opponents had this power?
— David Boaz (@David_Boaz) September 17, 2019

Now there are solutions floating around for de-politicizing the Court. Term limits of 18 years are one example. With a regular rotation of judges each seat and each appointment becomes less of a concern as folks no longer worry about an ideologue on the court for 30+ years. De-politicizing the Court should be a goal of both parties. But, alas, those in power don’t seem to agree.

This concept of fashioning new laws and rule without regard to how others might (ab)use them also came up two weeks ago when the San Francisco Board of Supervisors dubbed the NRA a “domestic terrorist organization.” As Walter Olson, also of the Cato Institute noted, this concept has repercussions. What organization is next, but this time from a red state/city? Maybe a pro-immigrant group? A group protesting police violence?

Think some Bible Belt city might want to take a shot at Planned Parenthood by calling it a terrorist organization?

In the race to play hardball one must always, always, always, always ask: How can this come back to bite me in the ass? Because one day it will.

November 17th, 2016

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

I 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:

No personal attacks. There is a difference between tearing into someone’s argument and an ad hominem attack;
No gratuitous coverage of local incidents where people are likely to hire lawyers due to injuries;
No self-aggrandizement, or this blog would look like an advertisement, and worse yet, be dreadfully dull; and
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.

November 10th, 2016

Can Trump Be Presidential?

Can Donald Trump be presidential? My feeling, based on his past conduct, is no. So this post is about how Trump can win (some) people over who despise him and believe he is completely irredeemable as a human, let alone as a leader. And profit while doing so.

It starts with the Supreme Court.

As I type, there are protests in the streets. Worse than displaying racism, misogyny, nastiness and hatred, he has displayed complete incompetence on matters of public policy, both foreign and domestic. You have heard them all by now so there’s no reason to repeat them.

So how does someone be presidential in such a circumstance? And I don’t mean act presidential, but actually be it?

It starts by taking the Supreme Court off the table when it comes to partisan politics. It is a shame that we as a nation have allowed ourselves to sink to this level, where every nomination becomes a blood-letting and Americans have begun to lose faith in our courts as an institution.

The issue, as the stalled Merrick Garland nomination has shown, has nothing all to do with the qualifications of the person. It only has to do with “the other side” having made the nomination.

Remember, as I write, that Antonin Scalia was approved by the Senate by a vote of 98-0, and Ruth Bader Ginsburg by a vote of 96-3. So it wasn’t always this way.

Here’s the thing — both supporters and detractors will ultimately benefit from both of these ideas.

The first is for Trump to recognize that if Republicans can hold up the Garland nomination, then Democrats can do that to any of his. What goes around comes around. Karma, and all that crap. Screaming hypocrisy at Washington, D.C. will only result in people shrugging, “So what else is new?”

Having recognized that his own nominations can be torpedoed (as well as anything else he proposes), acting presidential entails telling Republican senators that held up Garland that Americans are sick and tired of stupid political games, that he has come to Washington to actually get stuff done, and therefore re-nominates him.

Since Trump fashions himself as a maverick willing to dump on Republicans if need be, and since this will also make any future nominations sail far more easily through the Senate, it would not only be savvy, but presidential. It would be a giant step toward taking the ugliness of what we have seen, both in Washington and during the campaign, and stopping it dead in its tracks.

I have zero expectation, of course, that Trump is capable of doing this. But if he did, it would force people to take a second look and make folks wonder if the office of the president is capable of changing him.

The second way to take the Supreme Court off the table is by advocating term limits on the court. The reality is that we now live much longer on average than we did 100 years ago, and judges with lifetime appointments can be expected to sit for longer. That means each seat becomes more valuable, and more bitterly contested. Along with that, presidents now try to pick younger, and therefore less experienced judges, to sit longer.

But if the judges were term-limited, this dilutes the power of any one particular seat,and minimizes the political significance of any one appointment. At the end of judges SCOTUS terms, they would still be judges, but they would simply go down to Courts of Appeals or District Courts of their choosing.

There are already various formulations for this floating around — I make no claim to originality here. And it has support on both sides of the aisle.

On the legal side, Article III states that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” There is nothing in there that says a previously approved trial or appellate judge can’t take a temporary appointment to the top court. They would still be judges. And even if my simply formulation wouldn’t pass muster, we could still amend the constitution to take care of it.

You know what people would call such a move? Presidential.

Can Trump do such things? Unlikely. Would he force people who utterly despise him to reevaluate him? Yes.

Would his presidency, and his ability to get other stuff done, be enhanced by acting this way? You bet.
————
Elsewhere:

The New Nine: Make The Supreme Court Legitimate Again (Simple Justice)

Why Donald Trump Must Nominate Ted Cruz To The Supreme Court (Joe Patrice, Above the Law)

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.

June 1st, 2016

Do You Solemnly Swear…(Sworn in at SCOTUS)

The evening before…

And so it came to pass, on the 31st day of May, in the 239th year of our nation’s independence, that my name was called on a motion for admission to the bar of the Supreme Court of the United States.

Chief Justice John Roberts, in his infinite wisdom, granted said motion as I stood in the well of the courtroom.

I wrote last week of some ambivalence about this endeavor that was planned, with a group of 30 people from my listserv, as I struggled to justify an actual reason for traveling to Washington, D.C. for this appearance. That ambivalence existed because I’m not handling any case, at the moment, that has an issue that might land me there as counsel.

But I discovered the reason the night before, as I strolled over to the Court in the fading light of day with my 21st Century Daughter and took the photograph you see here of this magnificent temple of Justice, built of gleaming white marble.

The prior days had been filled running around D.C. as my daughter explored college campuses, we darted into the Smithsonian, watched part of the Memorial Day parade, saw and heard roaring Harley’s in town for Rolling Thunder and silently explored memorials.

Yesterday morning I went, with my daughter and listserv buddies, into the courthouse. We were escorted as a group to one of the grand conference rooms abutting the courtroom, and we waited. Our guests were then removed and seated in the court’s gallery.

Want to know what the grown-up, lawyer equivalent is to a kid entering a candy store? Yes, it is excitedly waiting to enter the nation’s highest court to be sworn in.

A few minutes later, we were directed in, past the seated gallery, to seats inside the courtroom well — the same courtroom where my father was sworn in, in 1961, Chief Justice Earl Warren presiding.

In came the justices, at 10:00 a.m. sharp, taking their seats. I scanned the familiar-from-the-news faces. Kagan on my far left with Ginsburg near by, and Sotomayor on the right with Breyer near by. The center was filled with Chief Justice Roberts, flanked by those with seniority, Kennedy and Thomas. Only Alito was missing. And, of course, missing was a seat for any ninth justice.

C.J. Roberts read a decision, from United States Army Corps of Engineers v. Hawkes Co., Inc. (8-0, with four opinions).

Five minutes later attorneys who were already members of the SCOTUS bar, one after another, rose to address the court and make a motion that their groups of attorneys be admitted.

When our turn came, a somewhat surreal moment occurred, as we were addressed — officially by the highest court in the land — by our jokey listserv name. A group not officially associated with any bar association, university or other formal organization, without any legal structure, dues or secret handshake. Simply a private listserv for those who work in a similar niche of the profession: New York based trial lawyers.

Appellate wordsmith Jay Breakstone, who has guest blogged here on occasion, and who set up the group admission to the court, made the motion, calling us each in turn, as we each rose. And C.J. Roberts had the clerk swear us in.

By 10:13 it was all over.

I tried to exit slowly so that I could admire the carved marble friezes up by the ceiling and the magnificence of the courtroom. The court officers would have none of that, however, hustling us all along.

Back to our conference room.

Then a little Brooklyn gal named Ruth Bader Ginsburg entered. She of diminutive physical stature and towering reputation, to talk with her fellow New Yorkers. She asked about our listserv, heard how solo and small practice lawyers can pool intelligence about cases and the law, and then sat for group photos.

And the reason I made this journey was never more clear. While it is conceivable that I could one day find myself in this court as counsel, the odds are not exactly in my favor. Precious few attorneys ever have a case that makes it this far, and the stomach to stand in the well and argue, and you need to have both.

But the reason we do things sometimes, is simply for the experience of having done it. That experience could be a movie or museum, an opera or sky dive. We may take away nothing tangible, other than, perhaps, a ticket stub, photo or certificate. The joy is in the experience itself.

And as experiences go, my dear reader, I want you to know that being sworn in to the Supreme Court bar is a tough one to top ~~for any attorney~~.

(Part 2 of this experience follows here: A Lawyer’s Listserv Gets SCOTUS Recognition)

Our group photo, with the Notorious R.B.G.: