January 6th, 2014

2013 Year in Review

2013I’ve been at this blogging thing for seven years now, and my posting volume waxes and wanes with other events in my life. But on the actual substance, I’m pleased to write that I thought 2013 was the best that this space has seen.

Why? Because, I was able to do some original reporting on issues that hit home for the entire personal injury field — the use of insurance company “experts” that do quickie exams, who then use these three or four minute exams to claim that victims haven’t been injured. I won’t re-post the entire series, but you can read this one regarding Dr. Robert Israel and this one regarding Dr. Michael Katz, and then follow the links from there to the extent you haven’t seen them yet.

One of the problems with blogging is that, all too often, bloggers merely re-package stories that have been written by others. The better ones will offer opinions on why the story is significant.

But breaking news is a whole other beast, and is particularly rewarding. This is especially true if it results from investigation, and even more true if it spurs others to investigate.

I know from other sources that these two experts, for instance, will be hard-pressed to ever take the witness stand again, as they will be destroyed on cross-exam by their conduct. And I’ve done my part to make sure their conduct is well known. This one post of mine has been viewed over 18 thousand times. Some folks are interested. Indeed, the New York Law Journal has already featured two articles on the subject subsequent to my reporting.

And other doctors that I discussed may find themselves the subject of new lines of cross-examination due to the data I found on the length of their exams.

While I believe I’ve published some powerful evidence of insurance fraud undertaken by the insurance industry, I obviously don’t have the time or resources (subpoena power) to do a full blown investigation. Perhaps one day a real investigation of insurance fraud will take place regarding these quickie exams.

In the meantime, I’ll keep plugging along.

It would be nice if this blog could actually accomplish something that brings more integrity to the field. I would call that success. I feel like we are half way there, but still need state investigators to do the real work.


December 28th, 2011

Year in Review – 2011 (My 14 favorite posts)

These were my 14  favorites from the past year, with the ledes. Favorite does not mean happy, it just means that they were meaningful to me as I wrote them. This is based on purely on personal preference, not page views, and I think fairly represents a cross section of this blog, focusing on policy, legal decisions and my own brand of whimsy:

The New Congress and the Constitution (Will they really defend it?) (1/6/11):

Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no…

Bloomberg: City’s Tort Victims Should Bear Own Costs (1/27/11):

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor MikeBloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”….

The Million Dollar “Loss of Consortium Claim” (2/3/11):

A blockbuster decision, of sorts, emerged quietly from the Appellate Division (Second Department) last week. In it, the appellate court evaluated a jury verdict designed to compensate for 11 months of injuries between the time of malpractice and death. And part of that decision was $1,000,000 for loss of consortium to the husband…

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature) (3/1/11):

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds…

Does Tort “Reform” Kill Patients? (3/15/11):

Two questions today as New York ponders putting a $250K cap on medical malpractice awards among its “reform” measures:

Question 1: Has medical malpractice tort “reform” ever saved a life?

Answer: No. OK, that one was easy. So-called reforms merely strip rights from the injured, they do zippo to improve medical care.

Question 2: Does medical malpractice tort “reform” kill patients?

Answer: Yes…

April Fool’s Day Deconstruction (A 23-Blog Conspiracy) (4/2/11):

It shouldn’t be legal. To have so much fun.

OK, so today is April 2nd and that means a deconstruction of the April Fool’s Day hoax on this blog, and as it happens, the blogs of 22 others…

Joseph Rakofsky — I Have An Answer For You (5/18/11):

I’ve been sued. I’m 51 years old and this is a first for me, both personally and professionally.

And it flows from a post I wrote last month about the depths to which some attorneys will sink in their marketing, that also happened to mention that Joseph Rakofsky was incompetent as a lawyer. Also, that he had an ethical issue regarding an email he sent to an investigator asking him to “trick” a witness. He sued me for defamation…

40 Years Ago Today (Apollo 15, Road Trips, and Instant Everything) (7/26/11):

I’m going to start off topic today to reflect on my youth and the time we drove from New York  to Florida when I was 11. As one of my older brothers likes to remind me, we drove  when I-95 wasn’t complete, using US-1 as we drove down the Eastern seaboard for a family vacation. My father snapped a photo of a sign that said “Future Home of Disney World.” (Eventually I’ll find a legal point for this post, don’t worry.)

It was on that trip,  40 years ago today, that we saw Apollo 15 blast off toward the Moon.

September 11. The NYC Marathon. And Vaginas. (Yes, they are related) (9/11/11):

I know what you’re  thinking. How can September 11th, the NYC Marathon and vaginas be related? Trust me. They are. And it won’t take long to explain…

Reach the Beach Relay (And Assumption of Risk) (9/18/11):

Did you ever want to go racing along rural roads in New Hampshire at 2 a.m., guided only by a headlamp, some signs, and the blinking butt-light of others?  And several miles later you get to climb into a van full of other sweaty, smelly runners wanting to do the same thing? I thought so…

The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas) (10/14/11):

Public Citizen released a report this week on the abject failure of a $250,000 medical malpractice cap put in place by  Texas in 2003. Why is this is important? Because as I discussed  two days ago, so-called conservatives are trying to expand federal power to implement a similar scheme on the federal level.

So it’s important to note that such a scheme fails not only on the constitutional level as viewed from exercising federal power over state claims, but that it fails on a state-wide level as well in that it does not lower healthcare costs as it was intended to do. It may lower the number of malpractice suits by its grant  of protections and immunities to those that negligently injure others, but it doesn’t improve healthcare costs…

Five Years of Blogging (And Happy Thanksgiving) 11/22/11:

My five-year blogging anniversary slipped by last week without me noticing. Having now noticed, I’d like to interrupt this blog to make an important announcement…

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”) (11/22/11)

Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders…

Indiana State Fair Stage Collapse (And the Brutality of Damage Caps) (12/21/11):

Back in August a stage collapsed at the Indiana State Fair as the band Sugarland was about to take the stage. Seven were killed and dozens more injured. And now the State of Indiana is waltzing away from that tragedy having paid a mere $5M in total to 63 of the 65 victims and their families. For the families of those killed, a paltry $300K. If one of those killed or badly injured was a parent, that money will vanish quickly.

Why $5M? Because Indiana decided to limit its responsibility when it handed itself this brand of immunity and protection. A State distancing itself from its own responsibilities as people are killed on its property under its watchful eye? Sounds an awful lot like the old Soviet Union…

And the most popular post, based on page views? That goes to this quickie I did about Dominic Barbara being suspended. It garnered over 27,000 page views. Because it was brilliantly written? No. Because he was a regular on the Howard Stern show and Stern’s website linked to it. One month after it was written. Go figure.


December 7th, 2011

The Ostrich Offense

Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)

But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.

The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” (citations omitted)

The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.

I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.

(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)

More on The Ostrich Case:

Was Judge Posner a Dodo in His Ostrich Opinion? (Lat @ Above the Law)

Who’s the Ostrich? (Palazzolo @ WSJ Law blog) – in which the mocked lawyer responds

Judge compares lawyer to ostrich (Pallasch @ Chicago Sun-Times) Lawyers don’t recall ever seeing pictures to make rhetorical point.


December 31st, 2010

The Year in Review (2010)

This post constitutes my “best of” for 2010, and by that I mean,  those posts that I enjoyed writing the most, regardless of whether they were popular. It travels from my fight with FindLaw, through national attention due to a letter I published from Justice Scalia on secession, past an April Fool’s Day punking, and on through various court decisions, tort “reform” issues, ethical discussions and September 11. As I put this together, I realize it’s been one hell of a year with over 200,000 unique visits and almost 300,000 page views.

Some time later, I’ll drop a link into the sidebar so that, a couple of years from now, I’ll be able to find the stuff that I wrote and liked, as I did for 2009. Newcomers can also see a “best of” for 2006-2008 to see the types of things I covered earlier.

Without further ado:

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law? (1/4/10)


In looking at FindLaw’s new gaggle of so-called “blogs” that are little more than crappy search engine fodder and client solicitations, I struggled to find the right word to describe them. The ramifications of these crap-blogs are important, because FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole. And because this is likely to be a source of discussion going forward, it also means these so-called “blogs” need an appropriate name…

FindLaw Uses Dead Child To Advertise Attorney Services (1/22/10):

Demonstrating that, perhaps, there is no sewer deep enough for it to descend into, FindLaw has used the death of a child to promote the services of the lawyers that pay them fees….

Scalia: “There Is No Right to Secede” (2/16/10)

The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today’s post…

How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia) (2/23/10):

In responding to my brother Dan’s letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn’t see how such an issue could even reach this nation’s high court.

I’m here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick…

John Stossel, You Gotta Love Him (2/3/10):

Now I know what you’re thinking with this headline: “John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?”

No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluffinterview with New York Magazine earlier today where this question and answer appeared:

Q:  Who is your mortal enemy?
A:   Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers…

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold? (3/24/10):

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury?…

2nd Circuit Rejects Most of New York’s Attorney Advertising Rules (3/12/10):

The case concerning the constitutionality of New York’s attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit….

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) – Updated (3/8/10):

It’s a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn’t kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I’m making?…

About That White House Blogger Post from Yesterday….(NYT Gets Punked) (4/2/10):

Welcome to April 2nd. And that means a deconstruction of what happened on April Fool’s Day when I announced that I was going to become the official White House law blogger.

The basic idea was this: A bunch of law bloggers would try to punk the political bloggers, whose reputation is to grab any old rumor and run with it. Fact checking hasn’t always been the strong suit of this community.

But the political bloggers, to their collective credit, didn’t bite, despite wide dissemination of the story. Not on the right or the left. Instead it was the vaunted New York Times that ran with the story without bothering to check its facts. The Times, of course, had no sense of humor about it when the angry phone call came to me a couple of hours later…

Is an April Fool’s Joke an Ethical Violation? (4/5/10):

Just when I thought I’d put the April Fool’s fun behind me — and started to plot next year’s prank — comes this little nugget:

“April Fool’s Day Isn’t For Everybody: Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun” … yes, even on April 1.”Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?…

The SCOTUS Nominee and The Tissue Box Test (Revisited) (4/19/2010):

A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised…

Attorney Fee Fight Gets Ugly in World Trade Center Litigation (Plaintiffs’ Legal Fees Being Slashed; Howe & Russell Objects) — Updated x3 (5/28/10)

A furious fight over legal fees that erupted from the World Trade Center Disaster Site Litigation returned to public view yesterday. That litigation had resulted in a complex settlement with a range of  $575M to $657M for responders sickened in the aftermath of the September 11 attack. Judge Alvin Hellerstein rejected that agreement in March, however, for some 10,000 responders, claiming that the 33% legal fees that plaintiffs’ counsel was to receive was excessive.

In  an angry  letter yesterday to Judge Hellerstein, Paul Napoli of Worby, Groner, Edelman & Napoli, disclosed that the firm will voluntarily reduce its contracted legal fee from 33% to 25%, despite doing almost all of the heavy lifting on the plaintiffs side of the protracted and expensive litigation. In doing so, they asked why others were not also being asked to cut their fees…

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) (5/3/10):

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a  smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…

Elena Kagan In Private Practice (And Her First Amendment Experience) (6/3/10):

I know, you’ve been sitting there on the edge of your seat waiting for this, ever since I discussed the serious lack of private practice work by Elena Kagan. Which wouldn’t be so bad except thatonly Justice Kennedy seems to have had any private practice experience. Basically, 98% of the legal time for Supreme Court justices has been in academia or public service.

So  Kagan’s Senate Judiciary questionairre was released, and with drool running from my mouth I searched for all that I could on her private practice — much as I did with Sonia Sotomayor when I found her little private firm, Sotomayor & Associates that had no actual associates and subsequently became  a minor issue.

And it turns out, while at the BigLaw firm of Williams & Connolly between 1989 and 1991, Kagan actually did some First Amendment work that was interesting…

Empire State Bldg Jumper Loses Suit Over “Emotional Distress” (6/17/20):

Do you remember Jeb Corliss? He’s the clown that tried toBASE jump off the Empire State Building in 2006, got busted by security, and then sued the building claiming emotional distress. I know, I know, that sounds even dumber than the claim of being fired for being too sexy, but it’s true, he actually did make such claims as I wrote about a year ago: Empire State Building v. Jeb Corliss

Massive September 11 Case Settles (Again) — Additional $125M Added to Settlement (6/10/10)

The massive lawsuit regarding the September 11 World Trade Center attack and the 10,000 claimants has settled for the second time. The first settlement, in March of this year, was rejected by District Court Judge Alvin Hellerstein who demanded that the plaintiffs’ attorneys lower their legal fees from 33%. The new settlement has a minimum value of $625M with 95% participation by the claimants, and as much as $712.5M if other conditions are met. The original settlement was for $575M to $657M.

As I first reported on May 28th, the legal fees are being cut to 25%. In addition, the insurance company is ponying up an additional $50-55M, that matches the drop in legal fees. In addition, Workers’ Compensation liens will be waived, which also increases the amount of money that plaintiffs will receive…

Confidential Means Confidential, Even In Lindsay Lohan Case (Stuart Goldberg, Esq. — Fail) – Updated (7/15/10):

I really don’t get it sometimes. A client goes to a lawyer with a legal problem. The lawyer declines the case. And then the lawyer yaps to the press?!?  Are you kidding me?…

Is Plaintiff’s Comparative Negligence a Bar to Summary Judgment Against Defendant? ) 8/15/10:

Query: Plaintiff brings suit alleging that Defendant was negligent in causing an accident. Court agrees Defendant was negligent, but says that Plaintiff may also be comparatively negligent to some degree. Should the court grant partial summary judgment in Plaintiff’s favor and leave the issue of Plaintiff’s own negligence for the jury?

I pose this question because last week a split opened among New York’s appellate divisions on the subject, thereby setting the issue up for a battle in the Court of Appeals…

Michael Jackson’s Mom Brings Wrongful Death Suit (Analysis) (9/16/10):

Fresh off the news ticker this  morning is thatMichael Jackson’s mother Katherine Jackson has brought a wrongful death actionagainst concert promoter AEG. on behalf of Jackson’s three children.  According to the article, the promoter was negligent in allowing Dr. Conrad Murray to care exclusively for Jackson.

The merits of that argument will rely, no doubt, on some contractual provisions between the promoter and Jackson dealing with his health. Those who give on the spot opinions as to whether the suit is good or not, without knowing what those contracts say, will likely be speaking in a vacuum….

New York Judge Holds 4 Year Old Can Be Sued in Bike Accident (10/29/10)

It’s all over the news right now: The story of a 4 year old child racing her bike with training wheels down a Manhattan sidewalk, who hits 87 year old Claire Menagh, who falls, breaks her hip, and dies three weeks later. The story was first reported in the New York Law Journal yesterday (sub required) and in today’s New York Times.

And the essence of the story is this: The mother who was watching her was sued, as was the child. And Justice Paul Wooten has ruled, while the suit is still in its beginning stage, that the case may proceed…

Is The Workers’ Compensation Lien Really Bulletproof? (10/14/10):

I hate dealing with liens when handling a case. In fact, everyone seems to hate them, except of course, the company that wants to reach its hand into a settlement and grab a little something for itself.

And the big reason lawyers hate dealing with liens is an inherent conflict of interest. An injured person hired you, yet you are forced to do the work of someone else trying to capitalize on your work. Almost all of the health care liens, however, were knocked out late last year when New York passed an anti-subrogation law, prohibiting health insurers from trying to scrounge part of the lawsuit proceeds.

In New York’s Workers’ Compensation world , however, — and stay with me here even though you think this might be a boring post — the lien under Workers Compensation Law section 29 is thought to be bulletproof. Which is to say, they get paid back some of the money they spent to the extent it exceeds certain limits.

But I’m not so sure that lien is bulletproof.

Tort “Reform” Money In A Nutshell (10/22/10):

This is a short tale of two news stories this week. And money. The first reports on “trial lawyer” lobbying, and is published in The National Law Journal. The paper reports that the American Association for Justice raised $2.5M thus far this year for its political action committee.

And the second comes from the New York Times, in which it reports that the US Chamber of Commerce can raise more than that from a single corporation:…

1,000 Posts (and 10 Points to Make on the Subject) (11/5/10):

This is the 1,000th post on this blog. Other than a dozen guest blogs, all the writing has been mine.

And there have been more than a few surprises, as I sifted through the metrics and links I’ve seen. So for one day only, I’ll navel-gaze at some of those things that I never would have expected when I went live almost four years ago (on November 18, 2006)…

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

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal

Abraham Lincoln, Twitter, and This Blog (11/18/10):

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address?…

How Much is a Breast Worth? (12/20/10):

The fact pattern is not complex: A 32-year-old single woman had a mastectomy. But she didn’t have cancer. The modified radical mastectomy was unnecessary….


December 22nd, 2009

The Year in Review (2009)

Today I take a look back at some of my favorite posts of 2009. In doing so, I’d also like to thank a few sites for the many readers they sent my way. These include Above the Law, Overlawyered, Law.com, and Simple Justice. There were many, many others, of course, but these sites were not only a generous source of inbound links, but between them represent a remarkable diversity of focus.

Generally speaking, posts that were more national in scope drew more readers. It is hardly surprising that my more New Yorkcentric posts didn’t make the cut, and you’ll see that reflected in the list below.

Below is smattering of favorites, based partly on page views, and partly on personal whim:

New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09):

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster…

Twitter and the Age of Information Overload (1/25/09):

The internet and the burgeoning social networks that it has spawned have made it possible to acquire information in ways that our parents never envisioned. Information now pours over the transom in an unprecedented deluge, being pushed and pulled in myriad ways.

But at some point I need to stem this tide…

Buffalo Plane Crash WILL Test New York’s New Anti-Solicitation Rules (2/13/09)

When I wrote three weeks ago about the possibility of the Hudson River splash landing testing New York’s 30-day anti-solicitation rules for attorneys, I did it with a question mark and with one eye firmly on the fact that it ended very well for the people on board the plane. It even ended well for the bar, as I found only one firm that appeared to violate the ethics rule. It also led me to explore, while the Second Circuit considered the issues of New York’s new rules, the myriad ways that ethics laundering can take place with lawyers hiring attorney search services to solicit, or running “articles” on their web sites about the crash.

I didn’t expect to write again so soon on the subject, but today’s horror in Buffalo with Colgan Air / Continental Flight 3407 crashing and killing 50 people will bring the subject of attorney ethics and the 30-day anti-solicitation rule right back to the forefront…

Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) (2/26/09):

The ads are gone. All of them. In the wake of the crash of Continental 3407 near Buffalo I tracked seven different law firms using Google Adwords to advertise for victims, and every ad has now disappeared. …

So here is a quick and dirty analysis as to whether or not attorney anti-solicitation rules were the reason, based on three recent disasters…

New York’s No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?) (3/5/09):

New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports…

The Cross-Examination of Jim Cramer (3/13/09)

Around the country, Jon Stewart is winning plaudits for his devastating debate with Jim Cramer on The Daily Show, after a week of ripping CNBC up, down and sideways for their utter failure to see the Great Recession coming on, while claiming to be the experts of the financial world. Stewart is winning those plaudits (and perhaps an Emmy?) not just for the interview, but for a week-long skewering of financial talking heads who pretend to know the future of the markets.

But what I saw was not just good journalism — with the fake journalist giving a crushing lesson to the media on how it is supposed to done — but a devastating cross-examination…

As Seen on Oprah! (Kinda, Sorta, Almost) (3/17/09)

Oprah is big. I know this because my media maven wife tells me so. She has, like, a jillion fans and even more money. I’ve never actually seen her strut her stuff on her show, but a jillion fans (and even more money) can’t really be wrong, can they?

So I was flattered when Harpo Productions, Oprah’s production company, contacted me. It seems that one of her regular segments is with a Dr. Mehmet Oz, and he wanted to do a piece on medical mistakes.

So enter stage right, me…

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) (4/21/09)

(Amtrak – northbound, April 18) Every adventure starts with a journey. As I leave my wife and kids behind I experience that rarest of moments — leaving town by myself when it isn’t for business. As the steel wheels rumble underneath me heading north toward Boston, I slip on the iPod and tune in Arlo…

Susan Boyle’s Voice, and the Lessons for Trial Attorneys (4/22/09)

If you haven’t heard of unemployed, 47-year old Susan Boyle taking the stage in a British talent shows and blowing the doors off the joint by now, you’ve probably been living under a rock. The expectations were as low as can be for the rather plain (some say homely) looking woman who, it turns out, had the voice of an angel.

And there is the lesson for trial lawyers…

Gloria Allred v. OctoMom (What’s a “Celebrity Lawyer?”) (5/4/09)

Now I understand what a matrimonial lawyer is. And I know what an entertainment lawyer is. And certainly what a personal injury lawyer is.

But what the hell is a “Celebrity Lawyer?” Do all celebrities have the same issues? Think about it. Criminal defense. Real estate. Securities. Immigration. Corporate work for those that have their own productions companies. Child welfare if you’re Britney Spears. Adoption if you’re Madonna…

The SCOTUS Nominee and the Tissue Box Test (5/12/09):

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests…

I Hate My Website (5/26/09):

It isn’t the style or functionality of my website that I hate, it’s my writing. The site is my firm’s electronic brochure and it’s designed so that folks in need of a personal injury attorney can find it and consider retaining my firm. But creating such a website is a real problem because of three conflicting concepts…

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? (6/4/09)

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor’s position and her associate’s position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it Sotomayor & Associates?

Did she have any associates when she was advertising herself in that manner?

Michael Jackson: The Mother of All Malpractice Suits? (6/26/09):

With Michael Jackson’s sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

NYT: “Sotomayor & Associates” Becomes an Issue For Nominee and White House (7/7/09)

On June 4th Sonia Sotomayor released an extensive, completed questionnaire about her past to the Senate, and I picked up on the fact that her solo law firm “Sotomayor & Associates” didn’t have any actual associates. This raised an ethical issue, albeit a small one, because it was misleading to the public. The private firm overlapped both her time in the District Attorney’s office and her time with her next gig, Pavia & Harcourt.

And there my little post sat, relatively ignored. Until the Washington Times picked up on it in an editorial on June 20th. While I don’t agree with their premise that it was indicative of larger issues, it was nice that they at least gave attribution to me for finding the item.

And now today the ethical issue of “Sotomayor & Associates” lands in the New York Times...

Sotomayor & Associates” Under Senate Investigation ( A preview of 6 potential issues) (7/9/09)

I was called yesterday by a member of the Senate Judiciary Committee’s minority’s legal staff regarding my postings on “Sotomayor & Associates” and potential ethics issues, and the subsequent New York Times article regarding the firm.

It probably comes as no surprise that Judge Sonia Sotomayor’s small, solo practice is being investigated. The committee is not, after all, a potted plant. And this little law firm that Judge Sotomayor ran out of her Brooklyn home from 1983-1986 was unknown to the world until she submitted answers to an extensive questionnaire on June 4th.

What follows are the five issues that I believe they are exploring, based upon my conversation (plus one more from TaxProf)…

10 Tips for Laid Off Lawyers (8/19/09)

It may be a long time before the legal field recovers from the massive layoffs from this past year. Some folks could be out of work longer than imagined, and it appears that some may need a bit of help on what to do. As you can see from this utterly miserable description of life as a cast-off lawyer coding documents in the basement of BigLaw firms for $28/hr. (via ATL), there are some people with big time degrees that are trapped into thinking that BigLaw is all the law that exists.

‘Taint so.

So, without further ado, here are 10 tips for lawyers without a job, from a guy who started from scratch…

Medical Malpractice (So You Think You Know What It Is?) (9/11/09)

So you think you know what medical malpractice is? Well, last week a panel of appellate judges in New York split on the subject in Friedman v. New York Hospital-Cornell Medical Center

I’m a Super Lawyer! (Now What?) (10/8/09)

A relative told me something that I already knew: That I had been selected as a personal injury Super Lawyer. They knew because it had been published by the New York Times.

Yeah, well, kinda sorta. But not really. Super Lawyers is a supplement to the magazine; an advertising supplement. You don’t have to pay to be listed, you only pay if you want your name displayed prominently in a large box or page with a story about you that looks like news. Sort of an advertisement within the advertisement. I think the marketers call it an advertorial. I declined their offer to pony up big bucks for such an honor many months ago.

But now comes the other issue: What, exactly, do I do with this “honor”? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? A mockery of a pseudo-faux award? A mockery of a sham of….

Blawg Review #236 (The Bogeyman Cometh) (11/2/9):

The Bogeyman was pissed. And when The Bogeyman gets pissed, it’s probably wise to listen.

“Law bloggers are trying to steal my thunder,” he hissed, “It used to be that I had dibs on scaring the bejesus out of people. Now only 40% believe that my coterie of demons inhabits this earth. And I blame the lawyers. What are you guys trying to do to me?”…

New Spam Comment Policy for Law Firms (You Will Be Exposed) (11/5/09)

I’m getting tired of seeing spam in the comment area of my blog that comes from law firms and attorney search services. So if it comes in again I’m going to write a fresh post about them. I’ve done this a couple of times before but now I’m going to make a policy of it…

Outsourcing Marketing = Outsourcing Ethics (5 Problems With Outsourcing Attorney Marketing) (11/16/09)

Five months back there was a Metro train crash in Washington DC, and I watched from a distance to see who/how/where/when the web would be used by lawyers to find victims. And one of the things we saw was that one of the gazillion attorney search firms that infect the web was soliciting clients. Given that these search firms are agents of the lawyers, that raised the problem of attorneys using the web to solicit.

Thus was born this little formula in June: outsourcing marketing = outsourcing ethics….

MartindaleHubbell Apologizes For Blog Spam; Suspends Spammer; Promises to Answer Questions (12/1/09)

MartindaleHubbell has apologized for blog spam left on my site, using the comments area of my prior post for that purpose. MH has also agreed to publicly answer questions about the incident…

Tiger Woods: One Man Bar Exam (12/8/09)

Tiger Woods is providing a feast of legal issues as he swiftly morphs from choir boy to bad boy. And in the process he opens up a veritable bar exam full of questions.

Since at least half of lawyering is first identifying the potential problems, let’s take a peak inside the cans of worms he opened…