December 18th, 2011

‘Tis the Season…for Christmas Chanukah Candles?

Seen at the local CVS: Christmas Chanukah candles. Apparently, the deluxe kind.

What next, a nice Chanukah ham? Oh. I see.

You gotta love corporate America. It’s amazing, sometimes, that this whole capitalism thing works.

But maybe I’m missing something. Maybe this is really part of something much bigger, like the War on Chanukah. Or, the War on Hanukah, depending on your transliteration style. This assault is not something new, of course, as it goes back at least to the culture war days of George W. Bush and his Chanukah party card that included a Christmas tree. So yeah, I blame George Bush for the assault on our nation that I saw in CVS this weekend. You didn’t really think Bill O’Reilly invented the war against holidays, did you?

C’mon, that was worth blogging, wasn’t it? Maybe there’s some legal warranty kinda issue hiding in this story someplace to justify its existence on my blog…

 

December 15th, 2011

Rakofsky Motion #11: Our motion to dismiss (Updated x3)

This motion is on behalf of the 35 defendants (me included) that Marc Randazza and I represent.

I won’t bother re-hashing the Rakfosky history, you can Google it if you want.

Selected Documents:

Memo of Law

DeVoy Affidavit

Turkewitz Affidavit

Wells Affidavit

Exh G – Financial Crime

Exh H WhiteCollarCT

Exh I – Yellow Bot

Exh J – Lawyer search

Update 3/9/12: Our motion to dismiss was served December 15th, but the court clerk declined to take it at the time because the date of service was so far in front of the motion’s return date in March. While we waited, a stay in the case was reinstated. It expired today, March 9th. So the motion was re-filed today.

Update 5/21/12 Rakofsky has served the following documents in opposition to our motion to dismiss:

Affidavit of Forensic Expert

Goldsmith Affirmation

Rakofsky Affidavit

Memo of Law

Update 6/8/12 – Our Reply papers:

My Reply Affidavit: ET-ReplyAffid-Final

Our Memo of Law: RakofskyReplyMemo FINAL

 

December 12th, 2011

Why I Blog (Updated to add advice on how NOT to blog)

I hadn’t intended to write on the subject of blogging again, having just done that with my 5-year blawgiversary missive, but sometimes someone writes something that really puts things into perspective.

So today, two looks at other bloggers on the subject:

First out of the box are the folks at Drug and Device Law, which had this to say in the wake of another (well-deserved) selection in the ABA Journal Blawg 100:

We continue this blog for the same reason we started it. That’s to provide up-to-date information and commentary useful to those who, like us, defend pharmaceutical and medical device companies (also vaccines) in product liability litigation, either in law firms or in-house legal departments.  We have strong views on practically all aspects of this subject – we’ve written books and articles – and our big-firm platform allows us the relative luxury of keeping current on a plethora of legal issues, from preemption to ediscovery.  We firmly believe that a rising tide lifts all boats, that is, that defense wins anywhere help other defendants (like our clients) win everywhere.

Well, that is OK, but there seems to be something missing. I know they want to provide up-to-date info, but why do they want to do that? In other words, where is the emotional/human factor?

Scott Greenfield, however, hits the nail on the head, I think, summing up my feelings:

I’m going to die one of these days. Maybe sooner rather than later, and likely sooner than most of my readers. I’ll be damned if I die without having anything to show I was here.  I lack the skills to build the Taj Mahal, or write a symphony, or create a tourbillon.  But I can type words onto a computer screen fast enough to put some ideas on virtual paper that serve to demonstrate, at least for a day, that I was here.

That is a worthy perspective. I see, sometimes, the social media fans crowing about numbers of followers or fans or links or whatnots. But no one will carve the number of Twitter followers onto your tombstone when the times comes.

So if you want to write, or use social media to any extent, I think it should be be with a view toward actually enjoying life and getting something out of the exercise. The same thing you would do with any other recreational activity.

Update: Contrast the above comments with those of an SEO “expert.”  Aaron Kelly, writing for Avvo’s Lawyernomics, gives some advice on how to write blogs. It seems to parallel some of my own thoughts — thoughts I put down in an April Fool’s Day post about how to blog.

Basically, he tells people to write for Google’s algorithms, instead of writing for living, breathing, humans. Some of his godawful advice — and can you imagine actually spending part of your valuable, short life doing this stuff? — now follows:

  1. “since the goal is to publish as much unique, quality online content as possible, more emphasis is placed on speed as opposed to wordsmith-ing and editing.”
  2. “it’s important to temper your literary expectations and sacrifice some elegance in favor of volume”
  3. “a premium is placed on speed, many web content articles may not be as polished as print-journalism pieces, as there’s often very little time for editing or research.
  4. In general, you want to keep your web content articles between 400 and 2000 words.
  5. “[xxxxxxx].com is an excellent website from which to order content.”
  6. not everything you publish has to be perfect; sometimes it can be “just good enough” so long as it’s readable and contains the right amount of keywords
  7. “There’s no doubt that lots of well-written, SEO-optimized content will get you noticed online”

About #7? There’s lots of things you can do to get noticed. As an example, I noticed this article.  (Here are a couple other things people have noticed: advertising in the toilet, chasing air crash victims, spamming.) But do you really want to be noticed for dreck?

Want to know why this guy is clueless and his advice is so bad? Because this was his premise:

Search engines:

  1. Love websites and blogs that are frequently updated
  2. Reward sites with high-quality, keyword-rich linkbacks (e.g., links pointing at your site).

If the author wanted to give actual advice about Google, he would write that the Holy Grail of search engines is quality inbound links. This will bring in readers. Want to know how to get them? Write well and be interesting. That’s how writers find readers. Can you think of any writer that became good because of keyword stuffing? Don’t write for Google; write for humans.

And about that prattle about the length of posts being 400-2,000 words? Fuggedabout it. The Gettysburg Address is about 270 words long.

 

December 8th, 2011

Lawyer Suspended for False Accusation of Anti-Semitism Against Cop

Usually, when you see and hear cop videos and recordings on the web it is part of the a condemnation of conduct, going back to the Rodney King beating video up to the UC Davis Occupy protest where Lt. John Pike pepper-sprayed protesters like they were weeds.

But not today. Today the video (and audio) exonerates the cop.

In Matter of Dear, a guy gets a speeding ticket for going 85 in a 55 zone. Said guy happens to be a lawyer. And said lawyer, who is also an orthodox Jew, tries to blast his way out of the ticket with this humdinger of a letter:

“Ladies and Gentlemen:
This ticket shall be dismissed immediately since –
a. there was no speeding and the officer refused to show me evidence that there was: (i.e. – “not guilty”)
b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and
c. The officer called me a “jew kike” – and this prejudice obviously was the cause for the ticket.
I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).
Eliot Dear
[signed] Eliot Dear Esq.
[business card attached]”

Ouch. You know where this is going, right? The cop had a video camera on the car, unbeknownst to Dear. And the cop was wired for audio.

And when confronted on the phone about this by an investigator — who was also recording the call — he didn’t ‘fess up that he  had lied. The decision by the First Department today continues regarding the investigation:

The interview continued and respondent added that the trooper dismissed respondent’s proffered explanation for speeding, namely, that his pregnant wife needed a bathroom, as more baloney from “you guys,” which respondent stated referred to orthodox Jews. Respondent further recounted that the trooper displayed a demeaning attitude toward respondent and his wife. However, none of this information was supported by the video or audio recordings made during the traffic stop.

“You guys.” Nice.

There is a long explanation offered in mitigation — offered after he finally does ‘fesses up —  about his psychiatric treatment for a variety of problems and family issues.

And the verdict? Suspended for six months. The Court finds that Dear made accusations, “which accusations were prejudicial to the administration of justice, engaged in conduct that adversely reflects on his fitness as an attorney, [and] asserted positions which served to harass and maliciously injure.”

Why suspension and not something a little lighter? The Court:

Here, respondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person’s career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Notwithstanding the mitigating evidence and respondent’s apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty.

File this under Attorney Ethics.

 

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.