January 14th, 2012

Is “Article III Clerk” for Real? (Updated)

photo credit: FrogMiller, close up of US Constitution from National Archives

Have I seen this play before? A young guy, believing he is anonymous, spews on the web. When we last saw the show, it was starring  a doctor known as Flea writing about his malpractice trial. He ended out on the front page of the Boston Globe.

Today we may be seeing the reincarnation of Flea, in the Twitter persona of Article III Clerk,* an arrogant, pompous judicial clerk writing about his boss and the litigants that come before the court. And doing so in scathing terms.

But is it real? Or is s/he merely a humorist of some type?

He wouldn’t be the first person to use an Article III pseudonym, of course, as Article III Groupie preceded him by many years, with a delicious wit at Underneath their Robes. She described herself as “a federal judicial starf**ker.” She had style. And A3G wasn’t anything close to arrogant as she ran her stories on judicial “divas and hotties.” When A3G finally revealed herself six years ago this week, she was actually David Lat. He quickly resigned his post as Assistant United States Attorney and went on to blogging greatness at Above the Law.

(For the non-lawyers, Article III refers to the third article of the Constitution, which establishes the judiciary. Rick Santorum thinks it’s the least important part of government. Why? Because it comes third:

“Article I is Congress, Article II is the president and Article III is the courts. If it was the most important, they wouldn’t have put it third.”

OK, I digressed, but you gotta admit that was worth it, right?)

Back to Article III Clerk. His Twitter feeds describes him thusly:

Current law clerk for a Senior U.S. District Judge on the East Coast. He’s really fucking old, so I roll the dice of justice on my own.

So right out of the box, before knowing nothing else about him, we know something is afoot. Is it humor, or a twenty-something speaking the truth and playing with matches under the cover of anonymity? When we peek inside his feed that just started on January 11th, we see some stuff that could constitute decent criticism and wit:

NOTE TO PLAINTIFF’S LAWYERS: If you ignore Twombly and Iqbal in the Opp to a MTD, you should be disbarred. They happened. Deal with it.

…

If you put “Esquire” after your name at the end of your motion, I will rule against you. Every. Time.

…

The opposition you filed was goddamn unreadable. You think I want 10 more typo-ridden pages about what light I should view evidence in?

Not bad. Could be worth repeating if you like that stuff.

But….and you knew there was going to be a “but” didn’t you? Let’s check out a few other tweets (or twits) that seem to dance up to the line —  if not over that line if the feed is not a parody or satire, and could place the author’s license at risk:

Judge called from home today to “check in.” I got it under control you senile fuck. Go back to napping underneath 20 blankets.

…

Thing is, if I don’t grant this MSJ, this thing might actually go to trial. Which means I have to interact with Judge in person. Paaassssss.

…

Clerk of court is either on smack or she is retarded. 2 days since I gave her ruling. Release my brilliance to the people. Let them weep.

…

@lawschoollawlz I’m a de facto Art. III judge at age 27 & haven’t talked to “boss” in 3 days. What in the living fuck are you talking about?

…

I really, really hope the Judge doesn’t die while I’m clerking.

Not sure what to think. Would this person really want his identify disclosed? Remember the Golden Rule of the digital age: Don’t type anything you’re afraid to see on the front page of the paper. What are the ramifications, if he speaks the truth? If truthful, he’s revealed that he works for a senior federal judge on the east coast who may not be well, that he is 27, and the court clerk is female. That’s a lot of biographical data to narrow down the possibilities. Also, that he’s incredibly arrogant for a young pup that may never have stood in the well himself.

Hopefully, it’s just an attempt at humor.

*Update 1/15/12 – The Twitter feed of @ArticleIIIClerk has gone dead. Which leads me to guess it might have been real, and not a parody. Also, that the clerk woke up and realized he was making a big mistake. Just my guess. Anyone with real info, feel free to let me know in the comments or via email.

 

January 10th, 2012

Rakofsky Update (A court order and a settlement) – Updated x5

This is an update on the Joseph Rakofsky defamation case in which I was sued along with many, many others, and for which I am now local counsel for 35 of the defendants (with Marc Randazza as pro hac vice defense).

Two bits of information today. First is an order from the court regarding a proposed  Order to Show Cause for some type of relief. This was apparently brought by Mr. Rakofsky. This was not our submission, nor that of any other defendant that I know of. I have not seen the underlying papers, as such proposed orders are brought to the court without notice to adversaries. Copy here:  Rakfosky Order-1.3.12 – OTSC. The order reads:

Decline to sign

Papers are incomprehensible

In the other bit of news, criminal defense lawyer Lori Palmieri of Florida has apparently settled with the plaintiff for undisclosed terms last July. Copy is here: Rakofsky-Palmieri-Settlement.  Her original post on Mr. Rakofsky, for which she was sued, is gone, and her apology to Mr. Rakofsky is here.

—–

Update, 1/12/12 – The papers that Justice Goodman deemed “incomprehensible” have now been procured, requesting a smorgasbord of relief: RakofskyOrderToShowCause.  On a fast read, the following appears to be new:

The following have settled: Martha Sperry and Martha Sperry Daily, Advantage Advocates, Heslep & Associates.

Mr. Rakofsky seeks to add new defendants. One of them is Google, which he wants to add as a defendant because  “because it has refused to preserve certain information in the absence of a formal Court order…” (pp. 8-9). Previously he had sought to add Yahoo! and Techdirt, among others, and they are in this request also. The prior attempt was rejected because a stay was in place.

Update #2, 1/13/12 – Mr. Rakofsky has moved in the Appellate Division for a partial lifting of the stay: Rakofsky AppDiv Motion

Update #3, 1/27/12 – Our response to Mr. Rakofsky’s request for a partial lifting of the stay:Memo Of Law and Turkewitz Affidavit

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply. The opposing papers to which he refers are here: Teschner  (Yampolsky) Opp and Weissman (Reuters) Opp

Update #5, 2/24/12: The emergency application to the Appellate Division has been denied.

 

January 9th, 2012

Defending Rick Santorum…

Photo credit: Catholic Moxie

I do not come to praise Rick Santorum, nor condemn him. But I’m here to defend him.

What? You don’t believe me?

This is the brief backstory on recent criticism of Santorum: His wife Karen — a non-practicing attorney, nurse and mother of three at the time —  brought a medical malpractice case  concerning a violent chiropractic manipulation in 1996. (Santorum Malpractice Complaint). It resulted in a herniated disk in her lower back that required surgery. She sued for $500,000, and a  jury awarded her $350,000 in 2000. The judge subsequently reduced it to $175,000.

Given Rick Santorum’s prior advocacy of a $250,000 cap on malpractice cases, folks have screamed hypocrisy ever since.

With Santorum almost winning the Iowa caucus, and set, perhaps, to do well in South Carolina shortly, more attention is being paid to him as a potential Republican nominee, and this tort “reform” issue has reared its head again. (See, ABC News from 1/6/12,Rick Santorum in 2005: Double Talk on Tort Reform?)

On Friday, my friend Jordan Rushie sent this tweet my way:

 

It’s time for me to defend Rick Santorum against charges of hypocrisy for his wife’s suit. Because I don’t think he earned it.

First  up, spouses are entitled to have differing opinions.

Exhibit A –> High profile Democratic consultant James Carville is married to high profile Republican consultant Mary Matlin.

Exhibit B –> George Bush was anti abortion and gay rights. But Laura Bush supports both.

Now look at your own family and ask yourself if everyone agrees with everyone else. Do I really need to say more? Rick was not a party to Karen’s suit, so you can’t honestly call him a hypocrite  for it (unlike, for example, Judge Robert Bork and his slip and fall suit). And it’s foolish to suggest that the chiropractor gets immunity from negligent conduct simply because the patient’s spouse has a different political belief on this issue.

Second up: Rick testified at his wife’s trial, doesn’t that make him a hypocrite? Answer, no. He was a fact witness. Fact witnesses offer up their observations. He testified, according to the post-trial memo, about how the pain restricted her ability to care for their children, restricted her activities, and was a factor in significant and demoralizing weight gain. He could, technically, have been subpoened to testify if he refused to voluntarily come to court. I doubt that happened, of course, as he probably doesn’t want to sleep on the couch.  While it would be easy to simply quip “happy wife is happy life,” the legal reality is that he had no choice but to testify if that’s what one of the parties to the suit wanted. If Santorum witnessed your auto accident, you could force him to testify no matter how much you like/dislike him.

Third up: He probably gets to enjoy her money, doesn’t that make him a hypocrite? The answer again, is no. This issue of  money comes up often in the personal injury field, of course, as people want to know what will happen if a claimant prevails. But the money isn’t a prize, nor a lottery, nor a windfall of any kind. (And it isn’t “winnings” as Shpoonkle thinks.) It’s compensation. Someone suffered a loss and the money is designed to make that person whole.

Does it matter if Karen shares the money with Rick? Of course not.  I would never tell people what they should do with money they’ve received as compensation in a lawsuit. If Karen wanted to donate it to a charity, she could. If she wanted to spend it on her kids or her husband, she could. If she wanted to squander it on fast cars and loose woman, more power to her and let’s sell a few tickets. But it isn’t for us to say what she should do with her money that was awarded simply to make her whole.

Are there times when a jury gives an outlier verdict that’s way too high or way too low? Sure. And that’s why, in Pennsylvania, the judge was empowered to order a new trial if Karen Santorum didn’t accept a lower award. That’s the way the system is supposed to work. There’s no need for a one-size fits all cap when there is already a three-tiered system to protect litigants: 1) jury; 2) trial judge; and 3) appellate court. And that is the way New York also works (See: How New York Caps Personal Injury Damages). Ironically, the very outcome of the case, with the judge knocking down the award, is stark evidence that Rick Santorum’s own ideas of artificial one-size-fits-all caps are utterly unnecessary, and would only further victimize those who’ve been most badly injured in the first place. (See: Does Tort “Reform” Kill Patients?)

In sum, there is no colorable argument on why the courthouse door should have been slammed shut on Karen Santorum. And if she can’t be faulted for bringing the suit, then her husband really can’t be called a hypocrite because of it. We should not be in the business of looking for ways to give protections and immunities to those that injure others. Our civil justice system is built on the concept of personal responsibility.

There may be, of course, plenty of reasons for people to say negative things about various candidates and their tort “reform” platforms, though it always seems to be Republicans that advocate them. Despite  all of the cadidates running on small-government platforms, most (all?) advocate big government protectionism  for those that injure others through negligence. And they advocate such federal intrusions on purely intrastate matters.

Why would  small-government candidates prostitute their principles on this issue? I have only one viable explanation: That the lure of campaign contributions from Fortune 500 companies that are most likely to benefit from an evisceration of the civil justice system is just too great. And when substantial amounts of money talk, principles fall by the wayside.

I’ve addressed this topic numerous times, and won’t bother to repeat it all here. But when so-called small-governement candidates use tort “reform” to woo Tea Partiers and other conservatives, then I think they face serious hypocrisy problems by advocating big government protections for people or companies that injure others. And for more on that, you can read this: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions). See also: Second Tea Party Leader Opposes Federal Tort Reform from Andrew Cochran at 7th Amendment Advocate.

———-

See also, the transcript of a radio interview on this subject from 2000: Santorum On Tort Reform.

Hat tips to Jordan Rushie, Christopher Sawyer, and Ben Glass (source of documents), who may not agree with my conclusions.

 

January 8th, 2012

Previously Anonymous Actress Suing IMDb/Amazon Refiles Suit

Junie Hoang has agreed to surrender her anonymity to sue IMDb/Amazon for invasion of privacy

Back in November, a suit made national headlines when an anonymous actress sued the Internet Movie Database (owned by Amazon) for invading her privacy. She alleged that Amazon had her credit card information to find her date of birth, and gave it to IMDb to put up on its site. This issue was important given the rampant discrimination in Hollywood against actresses who reach the age of 40. She claimed that IMDb got the date of birth from Amazon.

The lawsuit sounds in fraud and breach of contract given various privacy and consumer protection laws, as well as Amazon’s agreement to handle personal information “carefully and sensibly.”

I predicted back then that Amazon’s lawyers would attack the concept of anonymity, under the theory that the actress would drop the suit if forced to reveal her name. And I said Amazon would win that fight as federal courts have a very high bar for anonymous suits.

Amazon did exactly that, and as I predicted, they persevered and the judge dismissed the suit forcing her to either drop the matter or go public.

And actress Huang Hoang, using the stage name Junie Hoang, likely surprised the hell out of Amazon’s lawyers  by telling them, in substance, vade et caca in pilleum et ipse traheatur super aures tuo (go shit in a hat and pull it down over your ears).  She decided to refile suit under her real name. It’s nice to see that she has the courage of her convictions.

By the way, the underlying basis for why Ms. Hoang wanted to keep her age private, and was outraged at what she believes was the breach of her privacy is here:

Women over 40 make up 24.3 percent of the U.S. population, but a casting analysis by the Screen Actors Guild showed actresses over 40 get just 12.5 percent of roles for television and film. Men of that age are also about a quarter of the population, but nearly equal their ranks in casting.

 

 

January 6th, 2012

Are NYC Transit Bus Drivers Prevented From Calling Police?

In a case that should shock the conscience of all New Yorkers, five people held up a bus in Brooklyn a few days before Christmas and threatened to kill the driver with a gun. According to the Sheepshead Bites Blog, they soon jumped off, and onto another bus, and the police were able to make arrests because of  a passenger’s 911 call.

But this isn’t the shocking part — any big city will have some depraved citizens breaking the law.

No, the shocking part is that, according to the article, the driver of the bus, employed by the New York City Transit Authority, was prohibited by its own regulations from calling the police.

According to the article a NYS Assemblyman called Transit to inquire…and the part about prohibitions from calling the police just leaped off the page at me:

[Assemblyman Rory] Lancman’s office also noted that it’s fortunate a bystander on the bus called the police, as MTA internal directives bar MTA employees from calling the police directly. Instead, they are ordered to inform their supervisors, and MTA representatives respond to the scene themselves, and only inform the police if they feel it’s warranted. It was noted that had the bystander not called, police would not have been able to pursue the suspects after they boarded another bus.

So, four questions to ponder:

  1. Does this policy preventing bus drivers from calling the police really exist?
  2. If it does, what are the ramifications with respect to the injured?
  3. What are the ramifications for civil suits?
  4. Is it legal?

Answer: Yes, it appears to be true. It puts people’s lives at risk. It prevents proper police investigation. And no, it does not appear to be legal.

I turned to one of my friends, David Roth (of Roth & Roth) to give me the goods on this, and see if he had more than Assemblyman Lancman. Roth has had his fair share of cases against Transit, and has lectured to other lawyers on the subject. And, he’s investigated this very issue.

Now here’s the scoop, according to a recent deposition that Roth took: The bus driver is not permitted to directly call the police. The driver has a radio and it only goes one place — to dispatch. So if someone has a heart attack or is bleeding to death after an accident, there is an automatic delay as the story first gets told to dispatch and then dispatch gives the story secondhand to 911. The same is true for a criminal act. The story must get told twice with the risk of facts getting muddled (or time wasted) along the way. And 911 doesn’t have direct access to bystanders on the scene to get additional medical information, such as a medical history, to assist the EMTs racing to the scene.

I’ve discussed this type of institutional negligence before: In 2007 a school was found to have a rule that prohibited the staff from calling 911 in an emergency, forcing delays as a problem winds its way through bureaucracy: How To Kill A Student: A Lesson From A Queens High School.

But that risk to life and limb isn’t the sole reason to write this piece. You see, when dispatch calls 911 after an accident, then dispatch will tell 911 to only send an ambulance, and not the police. The police are summoned for criminal actions. And Transit sends its own supervisor over to the accident to “investigate.”

Why is that important, and why did I put investigate in quotes? Because if the police are called after an accident then they take the names of witnesses and look for evidence. But if a TA supervisor is called, instead of the police, then witnesses scatter due to the delay (or perhaps because the Supervisor lets them know they can, you know, just leave) and it makes it more difficult for the injured passenger(s) to bring the TA to account if the driver was at fault.

But according to Roth, this runs afoul of the law’s requirement for the vehicle operator to contact the police right away:

All operators of motor vehicle’s are required to contact the police as soon as practicable according to VTL §600 when someone is injured in an accident. This includes buses.  Bus operators for the NYCTA and the related agencies are required to call dispatch which is located in East New York and then the supervisors at dispatch call the police.

The TA dispatchers call the ambulance when someone is injured but do not call the police. The dispatchers call the TA road dispatchers who come to the scene to do their own investigation. This has the insidious effect of allowing the TA to sanitize the accident scene and prevent an independent investigation by the police.

Is Roth right that this violates the law? It would appear so. According to VTL §600(2) (a miserably long 159-word run-on sentence):

2. Personal injury  a. Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual’s insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.

See the highlighted words? When someone is injured, the motor vehicle operator  “shall report said incident as soon as physically able.” But the TA doesn’t appear to be doing that, instead reporting first to a dispatcher, and sending a supervisor to the scene. And that supervisor may, or may not, call the police. And that would appear to be a big fat no-no.

Naturally, this is not the face the Transit Authority wants the public to see. They insist on their web site that customer safety is their top concern. They write:

MTA New York City Transit is interested in your safety. In fact, it’s our foremost concern.

So there you have it. The Transit Authority has put in place a policy that stops or delays the police from investigating its accidents by routing everything through dispatch and supervisors,who don’t call police unless a criminal act has occurred.  Witnesses then leave, and the TA can then just shrug its shoulders if sued and say the witnesses disappeared before their names could be taken. Sorry, they can say, we don’t have any witnesses except our driver. The others didn’t stick around. Such a shame.

And that policy, in turn, appears not only to violate the law and affect the way Transit Authority cases are litigated in civil matters, but also puts passengers at grave risk when people are injured after an accident. Delay is no friend to the injured, but it is to the Transit Authority.