December 2nd, 2011

I’m in the ABA Blawg 100 Again (But the LexisNexis Listing Makes Me Shudder) -Updated!

Perhaps I should title this post, A Tale of Two Blog Contests. They were the best of blogs; they were the worst of blogs…

Today we see a face-off: It’s the American Bar Association v. LexisNexis.

First up, the annual ABA Blawg 100: Go figure. They still like me. For the fourth year in a row, the ABA Journal has picked me as part of its top 100 law blogs in the country, out of about 3,500. Thank you. Yes, I have an ego. Yes, I appreciate it.

I haven’t always been completely charitable. When they first started doing this thing, they completely missed the personal injury field. They learned from their mistakes. They added two the next year and had six the year after that. This year I’m joined with some superlative blogs in the tort category: Overlawyered, Marler Blog, Drug and Device Law, Abnormal Use, and Jackson on Consumer Class Actions.

Do they have all the best blogs? No. They can’t. Because there are more good ones than the category can hold. This is completely subjective, of course, but there isn’t a dog in the bunch.

My only real pet peeve is that, once again, they are going to have a beauty pageant vote for the best. Since there really is no such thing as “best,” I think everyone understands and appreciates that it’s all in good fun. But still. If they want to give out “best of” prizes I think they ought to let the law bloggers do the voting, since we are the ones most familiar with the rest of the blogs. While it might be nice to have bloggers drive their readers to the site to vote, that just gives a sense of politicking for votes.

And politicking has been a problem and zapped some of the fun from it. There was one blogger two years ago, Neil Squillante from TechnoLawyer, who ran a sweepstakes to award $500 to two people and $100 to five others who cast their votes for him. He actually retained a lawyer for it. TechnoLawyer will never live down that taint.

Now on to the challenger in the law blog contest business: LexisNexis. They named me one of the top 25 tort blogs. I provide the link (coded “NoFollow“), despite what I am about to write, because there are some good blogs in there. But there are also some real barkers, like two faux-blogs from the Illinois firm of Levin & Perconti that are little more than thinly disguised ads for the firm. LexisNexis apparently wasn’t too concerned about quality, as those aren’t the only ads posing as blogs.

The email alert that I received from their “Content Editor” promoted this as:

The Top 25 group includes some of the best talent in the blogosphere and creates an invaluable content aggregate for all segments of the Torts Law practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact and influence the world of business and corporate law.

High praise considering that some of the blogs aren’t really blogs. There seems to be some disconnect between the promotional words and the actual content they listed.

But there’s something even worse than just being bad. And that is the way they have opted to promote themselves: This was also part of the pathetic LexisNexis email I received from their “Content Editor” after posting my blog there:

We would appreciate having the LexisNexis Litigation Resource Community linked to your site as well. Our visitors appreciate the links to valuable sites, and of course reciprocal links to high quality sites increases the search engine optimization for both of our sites.

Makes me shudder. LexisNexis is using the same spammy language as all the other hucksters on the web. It reminds me of Martindale-Hubell spamming me a couple years ago. Wait! Did I say Martindale-Hubbell? Are these two companies joined at the hip? While the ABA Journal obviously wants traffic — and why wouldn’t they since they are a legit magazine? — they’ve never, ever asked anything of me, in crass terms or otherwise.

Let me be clear about this. It’s not an honor to be lumped in with crap. Because it shows that the LexisNexis editors — to the extent there is anyone actually reading the content of the sites as opposed to just finding 25 to list — don’t really give a damn.

This LexisNexis nonsense, it seems pretty clear to me, has just one purpose, to juice their Google pagerank so that they can appear higher in the rankings for any of the products that they sell. It’s little more than link bait.

Now back to the opening of a Tale of Two Cities, which seems so appropriate, 152 years after these words were penned:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

So in the match between ABA and LexisNexis, it is ABA by knockout. In the first round. In the first minute. The battle wasn’t even close.

Anyway, all that stuff aside, it’s time to deal with the ABA voting.

And to handle that auspicious detail, I will now trot out the same campaign manager I’ve used the past three years.

Paris has so far managed to lose every election for me, and I have every confidence that she can pull it off again. If you want to vote, here is the link. But remember, the best part of the link is that it gives a nice roll of good blogs that are out there, some of which you may not have heard of. So leave here, go there, and rummage around to see what you find.

But stand very clear of LexisNexis.

Update 12/15/11 – Fresh in from the “You Can’t Make This Stuff Up” Department, one of the Levin & Perconti shitblogs noted above has “won” the most votes. (A shitblog is a faux-blog whose primary purpose is advertising. See: Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law?)

For added amusement, read the stuffed “comments” from the various employee/friends/relatives that they posted so that they could obtain this “honor.”

Note to LexisNexis — it will take you awhile to get the mud off your face for this one.

December 2nd, 2011

Best Law School / Worst Law School

via Stu's Views

Over at Above the Law, Elie Mystal ran a bit asking his readers to vote the worst law school in New York City. The Above the Law readers, it’s important to note, have a pretty significant bias toward BigLaw and big salaries and big bonuses. The site dwells often on the gossip that comes from the big schools and firms.

So it got me to thinking — a dangerous subject I know — where did New York’s top judges go to law school?

For comparison’s sake, we’ll first look at the US Supreme Court. Why? Because I need some other top court for a yardstick. And because it is frequently criticized for, among other things, being top loaded with lawyers that have never actually been in private practice, spending all their time in government or academia. I think that, of the list, only Justice Kennedy was in private practice for himself for any length of time, with Justice Scalia doing a brief stint in commercial law and Justice Sotomayor famously hanging a shingle in her apartment for a short time.

Here’s the Supreme’s law school list, and let me know if you see a pattern:

US Supreme Court:
Chief Judge John Roberts: Harvard Law School
Antonin Scalia: Harvard Law School
Anthony Kennedy: Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg: Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

OK, even a pre-tween kid could see a pattern. But that pattern is also a problem.

It’s a problem because people choose law schools based on three fundamental criteria: Geography, money and academics. Some folks couldn’t go to those schools regardless of their grades. Now let’s turn to New York’s top court, since that is where we are going with this:

New York Court of Appeals:
Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo: Albany Law School
Susan Phillips Read: University of Chicago Law School
Robert S. Smith: Columbia Law School
Eugene F. Pigott, Jr.: University at Buffalo Law School
Theodore J. Jones: St. Johns University School of Law

That’s a pretty good mix giving quite a bit of diversity. Four of the seven went to schools that would not be considered first tier. And yet, there those judges are, at the top of the heap on one of the most influential courts in the country. (And several of those judges, it’s worth noting, have actual lawyering experience, as I culled from online biographies; and by that I mean they knew where to find the courthouse and stand in the well on behalf of an actual, living breathing human.)

It is, perhaps, easy to stick one’s nose in the air and feel good about where you were privileged to go to school. But as the New York Times pointed out recently, law school doesn’t teach lawyering.

And I’ve never had a client or judge ever ask me were I went to law school, nor has any juror ever asked me when the trial was over. So take all that law school stuff with a few shakers of salt.

December 1st, 2011

New York’s Worst Auto Insurance Companies

Governo Andrew Cuomo released today, via the New York State Insurance Department, a list of the worst auto insurance companies in the state. Actually, the list also has the best, as it lists all 179 insurers.

The list is based on complaints to the Insurance Department that were upheld, divided by the dollar amount of premiums written. Thus, large insurers are not penalized for having more complaints, which one would expect since they write more policies. There is a problem on the other end, of course, in that for an insurer writing very few policies, just having one or two upheld complaints may make a huge statistical difference.

Nevertheless, since the fundamental business of insurance is to collect as much in premiums as possible and pay out as little as possible, the area is ripe for oversight and consumer awareness. This is especially true given the enormous sums of money that companies like Allstate, State Farm, GEICO and others pump into their advertising budgets to persuade consumers.

So, if you are in the market for new insurance, this is some of the hard data to look at instead of cute geckos or cavemen, as expressed by complaints from those who came before you to buy from that particular company.

If you have a complaint, by the way, don’t bother using the website on the report. They blew it on that one. The Insurance Department was recently combined with the Banking Department into the brand hew Department of Financial Services, and you can file a complaint at this site. (Someone apparently used a template for the report and forgot to update it.)

And with your complaint, those people seeking insurance in coming years may be able to learn from the problems that you experienced.

Consider this my public service bit for the day. You are welcome.

November 22nd, 2011

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

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.

Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Meher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.

So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big.

There were three cases before the Court in which plaintiffs had their cases dismissed by judges (two on summary judgment and one after a plaintiff’s verdict).

At issue before the Court were three of the categories of “serious injury” that contain impossibly vague language:

“permanent consequential limitation of use of a body organ or member”;
“significant limitation of use of a body function or system”; and
“a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”

The unanimous decision today in Perl v. Meher held that the lower courts were over-reaching in making factual determinations as to what constitutes a “serious injury” and taking cases away from the jury where it belongs if “contemporaneous” loss of motion findings were not made. While hewing to skepticism about many personal injury cases due to problems of fraud, the Court held that:

There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.

The biggest problem in determining the extent of the injury was in measuring it. I noted previously that the very act of measurment can be a problem if doctors are not litigation-savvy and quantify measurements in their notes.

This was also the view of the dissent in one of the three cases today, that I had quoted extensively from last year, and the Court agreed with those positions, explicitly throwing out the concept of the need for “contemporaneous” range of motion testing. The Court wrote:

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

How good is this decision? Let’s just say that the language the court used above matches my own fairly well, regarding penalizing those injured individuals who seek out their own doctors instead of those that are litigation savvy. I wrote this bit back in March of 2009:

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.

When the Court of Appeals agrees with you, then it’s a good day.

November 22nd, 2011

Five Years of Blogging (And Happy Thanksgiving)

Photo credit: Steven Stein, NewRo Runners

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:

I enjoy blogging.

Now I know that doesn’t come as a revelation to some, but the fact is, to keep writing for five years, you have to enjoy it. Because if you don’t, two things will happen; You’ll be miserable and you’ll have no readership. If you don’t enjoy it, it shows.

Do I blog every day? No. I do it when I want and when the spirit — or news story, legal decision or capricious whim — moves me. Sometimes I slow down, sometimes I speed up. It matters not, for it is mine.

Now you can see that I have a couple pictures here of me in a turkey suit, shot Sunday at a local Turkey Trot. And you might be wondering what the heck that has to do with blogging, or lawyering, or five-year anniveraries. And, you also might wonder if I’m nuts to put them up here, out of concern that it diminishes the seriousness of what I do for clients in the courtroom. Or that it might be seen by a potential client who will quickly hightail it elsewhere.

Glad you asked.

I see my fair share of human misery come through the doors with busted up bodies that shouldn’t be busted up. Anyone that deals with the consumer end of law will see variations on this theme, from divorce, criminal charges, bankruptcy, etc. And seeing those things gives me (and should give everyone) a greater appreciation for what we have. I know, from seeing it happen to others, that a car could blast through an intersection and instantaneously change my life and those of my family forever. Don’t say it couldn’t happen to you, because it sure happens to some people, who’s only fault might have been sitting patiently at a light. And it only takes a momentary lapse of attention on the part of a driver.

There is no limit to the number of ways that life could be quickly altered for the worse, and I’m not sitting in the middle of a war zone.

So I am thankful for each day that I get. And if I get the chance to dress up silly and run a 1-mile Gobbler race with a few hundred local kids, giving out gift certificates to a local cupcake shop for those that finish near my feathers, then yeah, I’m going to do it. And if I can have a few hundred adults in the 5K race chase the turkey, with a chance to win free entry into a little half marathon trail race I put together, well that is fun too. Community events are often like that. Fun. And it’s nice not just to participate, but to help create them.

In deciding to dress like a turkey for this event for the third year in a row — and with my name I’m the natural choice for this gig — I’m also mindful of Benjamin Franklin’s view of this particular fowl, as he advocated for it to be our national bird instead of the bald eagle:

For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.

I decline the opportunity to put on the “serious lawyer face” 24/7. You might see the suit and tie shot on my website, but you won’t see it on my blog. Here I get to let my feathers down.

Photo credit: Andrew Dallos via Twitter

I write this blog the same way I go through life. I try to enjoy it, while at the same time taking what I do for a living very seriously. I think that’s reflected in the 1,000+ posts that I’ve done. And yes, this is the same reason that I have for running the occasional April Fool’s gag.

This week is Thanksgiving. Look around you. Be thankful for what you have. And live each day to the fullest.

I hate to use Latin phrases in law, as it invariably sounds pretentious, but I’ll make an exception today. Carpe diem.

Now if someone could please cue up a copy of Alice’s Restaurant, I’d be most grateful. I hear Arlo may be coming to dinner….