October 31st, 2011

Dracula Heads to Court in Queens, New York

Dracula appeared in court in Queens this morning.

Spotted today in Civil Court, Queens County: Dracula. Playing nice before taking a bite out of his victim.

Reached by phone today — and who knew Dracula did interviews? –  he told me he did this once 5 or 6 years ago, and it was a big hit, so he has made it a tradition this time of year. He’s argued motions like this, and tells me he once also appeared for a bench trial in the garb. Neither the judge nor defense counsel protested.

Dracula’s legal work — and I know you were wondering what he did during his waking hours, and the answer seems to be plying dark courtroom hallways out of the sunlight — is that of No-Fault collections for medical providers. This little niche of the law is necessary because No-Fault insurers have this nasty tendancy to cut off benefits after brief exams, that many call shams, of the injured. Dracula, in other words, and contrary to the expectations of the world, is a good guy, fighting against insurance companies. Who’d a thunk it?

Perhaps when Dracula returns from court he can assist me in getting rid of the zombies that came to take over this blog this morning.

Dracula is Dave O’Conner and  the frightened damsel in distress is local attorney Meryem Toksoy.

Photo is courtesy of my courthouse spy, Samson Meyer Freundlich.

 

October 31st, 2011

I’m Changing My Blog (No More Mr. Nice Guy)

No more Mr. Nice Guy. I need to toughen up my image a bit.

I started thinking of this two years ago on Halloween when I walked around the neighborhood with the Bogeyman.  Maybe, I’m just too nice. So I took a shot at Monster Energy drink and its monstery conduct. That felt good, but maybe I was still too nice. After all, when I put this blog up for sale on eBay, I didn’t get any bites; something must be wrong.

So this year I’m going all in with a change of ‘tude, as the kids like to say. Since I’ve finally been convinced by the social media experts that I am doing this bloggy thing all wrong, it’s time to pull the trigger on change.

Henceforth (one of those big lawyer words I should use more often), I’m going to use this blog to be more aggressive and talk about me. Grrr. You can see the new me in the masthead and in the picture at right, as I decide to toughen up my image. (And if you’re reading this  in email or RSS feed, you’re just going to have to visit the actual website to see the masthead to know what I’m talking about. Offer expires at midnight tonight.)

Part of my current inspiration comes from the Steven J. Baum law firm, a Buffalo area foreclosure mill for banks, who last year mocked, ridiculed and derided, at a Halloween party, the poor whose homes they were taking. And really, isn’t revelling in the misery of others part of what being a lawyer is about? Never mind that the firm, according to the New York Times:

…recently agreed to pay $2 million to resolve an investigation by the Department of Justice into whether the firm had “filed misleading pleadings, affidavits, and mortgage assignments in the state and federal courts in New York.”

Now that is what we call aggressive.

And then there is the other kind of aggressive,  for which we turn to one Horace Hunter. He was snagged on ethics by the State of Virginia for using his blog for advertising purposes, and therefore requiring a disclaimer. It seems he likes to talk about himself a lot on his blog. So Virginia demanded the disclaimer as per its ethics rules, and Hunter snapped back with “This Week in Richmond Criminal Defense is not an advertisement, it is a blog.”

He lost, and has now been officially admonished. But. You gotta love that aggressive attitude, and isn’t that the point? Grrr. And look at all that press it earned him! He must be doing something right. Here’s a sampling: The Lawyerist, Simple Justice (“If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.”), My Shingle (“Hunter’s “blog” really isn’t a blog at all, at least as I define the term. It’s more akin to a running news feed, with at least half of the “posts” reporting on cases that Hunter or his firm handled…”) and more.

But Hunter, of course, didn’t originate the idea of devil may care, sell your soul self- promotion. No siree. Take a look at some of the other ads out there…..ahh, these are six you really have to admire.

So let’s forget about professionalism and results. Forget competence and knowledge. Forget the tarnished image of the profession. Forget about clients. Let’s use this blog to talk about what really counts: Me.

It’s become clear that, in order for me to compete in this brave new world, I’m going to have to take some drastic steps. Ergo, the new me.

Grrrr.

 

October 28th, 2011

Appellate Court Strikes Facebook Disclosure Order for “All” Records; Lower Court Forced to Do Review

A New York appellate court yesterday struck a lower court determination that all Facebook records had to be revealed in discovery in an auto accident lawsuit, and directed the lower court to restrict plaintiff’s Facebook information only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

That order, in  Patterson v. Turner Construction, essentially forces the lower court to do an in camera review of all the Facebook records, and will similarly force other courts that consider Facebook disclosure demands to appreciate that they may be swamped with documents to review each time such disclosure is considered.

The discovery of social media records is a pretty hot topic, and will continue to be so for some time, as courts struggle to see how the myriad ways that people express themselves, and the spectacular quantities of information that are being created in the digital age, fit into the arena of traditional discovery permitted in personal injury cases. I’ve covered that subject a couple of times before:

The Unseen Danger of Social Media (Twitter, Facebook, and More) (10/20/09)

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

So yesterday, the Appellate Division (First Department) reversed a lower court order that had:

granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived

That was a pretty broad lower court order, and the appellate court was not going to endorse it. Facebook records, the Court ruled, “are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, “but at the same time, that doesn’t mean the defendants have carte blanche to go on a fishing expedition through a person’s entire personal life just because they brought a lawsuit. Essentially, the Court must itself go through the discovery to determine if the information  “is relevant, in that it contradicts or conflicts with plaintiff’s alleged [claims].”

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And because this will be such a big burden for lower courts, judges are likely to demand that the requesting litigants show a “factual predicate” for making the demand in the first place, that the Fourth Department discussed last year in McCann. V. Harleysville Ins. Co. That court wrote:

Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence

So that is the current state of New York law on trying to obtain Facebook records. A defendant must show a “factual predicate” to make the demand, and if the court grants the request, then the Court will have to go through the records itself to find anything that might be relevant.

The basic rule of the digital age should be this: Don’t type anything to anyone or type anything into any forum, that you will be ashamed to see on the front page of the paper or exposed one day in a courtroom. The story of Dr. Flea should have made that clear.

 

October 26th, 2011

Daily News Rips Me Off (Again) – Updated

This story has a sense of deja vu for me. It was two days ago that I wrote up the settlement of a lawsuit where the State of New York agreed to pay $1.2M for a prison death. Then today, 48 hours later, the Daily News runs the same story and calls it an “Exclusive.” Some Exclusive.

The rip-off writer is Daily News staffer Rich Schapiro ([email protected]).

I knew I’d seen this act before, so I went into my archives and, sure enough, it was the Daily News that also ripped me off in June 2010, when I published some documents related to the September 11 litigation. I was a little concerned back then that I would sound petty in my complaint, until I found out it was a recurring problem in the media. (See: How the Mainstream Media Stole Our News Story Without Credit, by Danny Sullivan)

If this happened twice to me in 16 months, for this modest little blog, then the question to ask is: How often is the Daily News ripping off stories from others? Is it just me? Unlikely.

So, while it may sound petty to complain, I think it is the type of conduct that needs to be documented and the writers and media groups held accountable.

—————————-

Update 10/27 – I received a call from Mr. Schapiro who, as you might guess, wasn’t happy about being called  a “rip-off writer.” He claims that he didn’t put the word “Exclusive” on the headline. Two things worth noting: First, when he did an interview for the story, he’d been told that a lawyer had blogged about it. (He said he hadn’t read it.) Second, while Brandon Jackson is a common name, if you do a Google search confined to the past week my story pops up on the first page. So it was easy to find. Was rip-off too strong an opinion? Hard to say. But there was, at a bare minimum, sloppiness.

He also wanted to give me tips on how to be a better newsman and have a better blog. I withheld comment on that. He also said I should have called him before publishing. (He’s probably right on that part.)

Last thing: I should have also given a link to the piece about the New York Times taking my story on Sonia Sotomayor two years ago, as it also deals with the mainstream media taking items they find on blogs and treating them as their own. The story provoked comment from the White House regarding the ethical issues that I had raised. Here it is:   NYT: “Sotomayor & Associates” Becomes an Issue For Nominee and White House

 

October 25th, 2011

Rakofsky Moves to Add Yahoo!, TechDirt and Others to Defamation Action; Asks Sanctions Against Former Lawyer (Updated x2)

Joseph Rakofsky, as seen on a copy of his former website

[This post was substantially updated on October 26th, with new documents added and more informaton on the new claims)

Joseph Rakofsky has not, quite apparently, put away his shovel. He is still digging. (Synopsis of case and my opinions before becoming local counsel, here.)

He has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

In addition to the extraordinary damage claims, Rakfosky seeks to add Yahoo! and TechDirt into the lawsuit, among 15 new parties.

And he seeks to create a new cause of action for Cyber-bullying, or Internet Mobbing, due to the things people wrote about him after his ill-fated trial before Judge William Jackson down in Washington DC.

He has also asked for sanctions against his former lawyer, Richard Borzouye, who had asked to be relieved as counsel, with the consent of Rakofsky.

And he still has the St. Thomas School of Law listed in the Complaint, even though it capitulated with a settlement.

And he still sues on behalf of his professional corporation, even though he may not do so without counsel.

He also wants to start engaging in discovery, seeking subpoenas to get information from Google and other places about anonymous defendants.

He also has engaged a self-professed expert in forensic computer work in an attempt to gain access to the computers of some of his critics, Osvaldo Alayon, though Alayon doesn’t bother in the affidavit to lay out the basis of her expertise. A Google search of  — “Osvaldo Alayon” forensic computer — turns up zero hits. The claim is that one of the defendant websites has evidence of child pornography on its site. In viewing the Affidavit and Exhibits for that claim, I feel compelled to give this legal warning: The comments and pictures are infused with sophomoric  humor and badly photo-shopped photographs, internet memes, and inside jokes that will be seen as witless to some and irreverant to others. There is no actual child porn, so if you are into that kind of thing, well, do me a favor and go away and never come back. The affidavit is here and the exhibits are here.

And he is asking for a default judgment for those that have not appeared.

Yeah, that’s a lot of stuff. Here is a very quick guide to some of the new claims, though this isn’t by any means comprehensive, and is put together based on a quick skim of the materials:

You can find the Notice of Motion and supporting Affidavit at this link.

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here. The scanned images are large files as Rakofsky refused to serve anyone with digital files.

A few notes on the Complaint, as it is so large, in order to help you find things:

Pages 1-29 – identify parties

Pages 29-55 Rehash of trial and claims against Washington Post

Paragraph 140 he writes that Judge Jackson made “denigrating” remarks about him on the record, writing that the judge “for reasons that can only be speculated, gratuitously published on the record that he was ‘astonished’ at Rakofsky’s willingness to represent a person charged with murder and at his (Rakofsky’s) ‘not having a good grasp of legal procedures’.”

Paragraph 144 he gives his explanation for the “trick” email that he sent.

On page 140, the action against St. Thomas School of Law and Deborah Hackerson is continued even though he settled with them.

New action against The Atlantic Monthly and Yahoo! are on page 161

New action against TechDirt and its writer Mike Masnick is on page 164

New action against Canadian Lawyer Magazine and Reuters Canada on page 167

Total demands for defamation he makes are $46M ($1M for each of 38 causes of action except for Greenfield and me for $5M each)

Page 170 is the end of the defamation claims, and the ones for Intentional Infliction of Emotional Distress starts here — demand for damages is $10M

Page 178 is the claim for interference of contract. $10M demanded

Page 181 is a claim for violation of Civil Rights Law for use of his image in the news stories, claiming it was used for advertising purposes – total demand is $10M

Page 184 is a claim for “Intentional Interference with Prospective Economic Advantage” and a demand for $10M

Page 186 is a claim against Washington Post for “Injurious Falsehood” and a demand for $1M. This is the 43rd Cause of Action, and similar claims continue until page 294 at the 77th Cause of Action, at $1M demanded for each, for a total of $34M

On page 294 is a claim for “Violation of Prima Facie Tort” which he defines as “mobbing” or “cyber-bullying” and a demand for $25M

Update #2 – 11/18/11 – Motion is withdrawn, as per the Court, as it was filed while a stay was in place