April 25th, 2011

iPhone GPS Data Will Open New Doors in Litigation (Updated)

Like having a private investigator in your pocket

When I heard the news last week while on vacation, the first thing that hit me was this: The courts have a new discovery issue for personal injury lawyers to deal with. That news, as you can guess from the subject heading, is that Apple iPhone users have their movements tracked by GPS so long as the device is on.

And while much of that data may have existed before, and been accessible particularly to the police, Apple will make it much easier to obtain. Why? Well, because there’s an app for that.

These are the basics:

The tracking seems to have begun in June 2010 with the iPhone 4 update to the OS and the data is stored on the phone but is automatically transferred to a computer when the iPhone is synched without the user’s knowledge.

So the info is on your phone, on your computer, and on Apple servers somewhere out there in the digital world.

Think this through for a minute with me, to see how the data can be used for a simple accident case:

It may tell you how long someone was driving before the accident. Important for a 10 minute trip and an intersection collision? Perhaps not. But if it was a truck or bus traveling for 12 hours? Now we have another story. Can it tell you how fast you were going in the 60 seconds before the accident? Many judges might well think that relevant information for a jury.

How long did that witness testify they were at the bar/restaurant before the accident? It better be accurate, because if the phone was on it will rat you out. And those phone are almost always on.

It can also be used for criminal prosecutions. And defense to support an alibi. Matrimonial is a no-brainer for the cheating spouse. It’s like putting a private investigator in your pocket.

iPhone GPS data litigation; coming soon to a courthouse near you. Don’t say you weren’t warned.

Updated: Well, that didn’t last long. Steve Jobs has admitted a mistake (why can’t politicians do that?) and a software update is in the works to make this go away.

 

April 20th, 2011

NY Appellate Court Bars Discovery of Facebook Materials

Yesterday, New York’s Appellate Division, First Department, reversed a lower court judge in refusing to allow broad discovery regarding Facebook and other social media sites. Discovery of data from social media sites is as hot a subject as can be found among litigants, and this is now the second of New York’s four appellate divisions to weigh in on the subject.  In November 2010, the Fourth Department similarly shot down a Facebook demand in McCann v. Harleysville Insurance.

Yesterday’s decision in Abrams v. Pecile resulted from semi-nude photos of the plaintiff that the defendant possessed, and an allegation of attempted extortion. According to the court, the:

plaintiff alleges that defendant, a former employee of plaintiff’s husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.

New York, it seems, is firmly putting the brakes on out-of-control discovery requests. There was no new disclosure standard used, with the court using the time-tested:

“the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).

 

April 15th, 2011

Linkworthy

My RSS feed has almost 7,000 posts sitting in it. That’s what happens when you try to follow a lot of blogs and you also have work to do for actual clients.

But if I had more time, these are some of the things I would like to write about:

“Tort Reform” Exposed for What It Is – Immunity (The Pop Tort)

…Take what’s happening in North Carolina, which is now considering atrocious legislation that would provide immunity not only to negligent emergency room personnel, but to the entire pharmaceutical industry.  Forget that more preventable errors occur in an ER than in any other place in a hospital, or that in states like Texas where a similar immunity law was passed, ER’s have now become even more dangerous.  Meanwhile, no patient has any recourse if they or their child is permanently disabled, disfigured, brain-damaged or killed.  This bill would essentially make “negligence in the ER legal” in North Carolina, too…

Bill Precluding Punitives for Undocumented Immigrants (TortsProf): That’s right, in AZ there seems to be no difference between acting negligently and deliberately hurting someone, so long as the person you pick on doesn’t have the right papers. Hey, why not just put “kick me” on their shirts?

The HuffingtonPost Bloggers Class Action Lawsuit Won’t Go Anywhere (Litigation and Trial):

…But nobody hated the Huffington Post as much as its own bloggers, the folks who generated a ton of its content without compensation in a spirit of, I suppose, political activism, just to watch it be sold off to AOL for $315 million….

And Max Kennerly agrees with me on the all-important subject of what to wear to court:

…I wear what I wear because I do not want what I wear to get in the way of what I am saying…

The NYS Commission on Public Integrity tries to muzzle blogging lawyer Andrew Barovick.

Veteran NYPIRG lobbyist Blair Horner, one of New York’s most well-known good government advocates, has taken a position with the American Cancer Society of NY & NJ as vice president for advocacy

A personal injury law round-up at Torts Prof.

And I barely made a dent in my RSS feed….I need more hours in the day….

 

April 5th, 2011

Lawyers and Advertising (The New Frontier)

I broach the subject of lawyer advertising every so often, because there seems to be so many different things to write on the subject. It covers constitutional law, ethics and plain old good (bad) taste.

Ethics and constitutional issues butted heads in recent years over New York’s new attorney advertising rules, which went up to the Second Circuit in Alexander v. Cahill, about which I’ve written often as it tracked its way through the judicial system.

Ethics also comes into play with deception, as evidenced by one Joseph Rakofsky, a New York lawyer with scant experience, but whose website sung his praises in oh so many ways. Then he got a real client. Defending a murder case. Which of course, he was utterly incompetent to do and after being exposed in the Washington Post, the story is now buzzing around the blogosphere (Gamso; Bennett; Elefant; Greenfield; Tannebaum; Mayer; Koehler, Above the Law).

And in the plain old bad taste department, I’ve written of lawyer advertising on a funeral home website and, in what I previously thought was the ultimate captive audience spot, over a urinal. All of this  is part of a never-ending race to the bottom, as Scott Greenfield describes it.

Which brings me today to The Buffalo News, and an op-ed by Jeffrey Freedman, and the next round of bad-taste advertising, and the fact that there was an even more captive audience that I hadn’t even thought of, but others, apparently have:

…Captive ads, in case you missed it, is the new Metrodata Services advertising program that allows defense attorneys, bail bondsmen and anyone else who would like to advertise to the captive audience of the recently arrested on big screen TVs in the Holding Center….

So if you thought standing at a urinal and seeing an ad in front of your nose made you a captive audience, then this brings us to the next level: An audience that is captive in the most literal sense of the word, in the local lock-up.

Freedman wonders where this will ultimately lead:

Erie County Medical Center is a potential gold mine of space. Picture the possibilities for hospital gowns. Give patients a choice: Viagra or Cialis today, Mr. Smith?

And just imagine elevators and waiting rooms papered with the faces of compassionate, personal injury attorneys. “We don’t charge a fee unless we win your case.”

I thought that when lawyers dug down deep to advertise at a funeral home website, that this was as low as they could go. But perhaps there are new avenues to be explored in bad taste.

 

April 2nd, 2011

April Fool’s Day Deconstruction (A 23-Blog Conspiracy)

Is it April 2nd already?

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.

I had one big problem in doing an April Fool’s joke, of course, that I discussed in the set-up for the posting: If people are looking at this site to see what stunt I will pull, based on my past April Fool’s Day conduct, how will I hoodwink anyone? Doesn’t a prank work best when it’s unexpected? Answer: Divert the readers to let the hoax play out elsewhere, and make sure the story is plausible.

The premise was simple. The New York Times got pranked a couple of times last year. And loads of people chuckled at the “Paper of Record” for being sloppy. So this time, I figured, let’s go after the chucklers; we’ll try to get those who most like to see others get got. We’ll just claim another Times fail, certainly plausible given the past, and see who chases the bait. It would be a prank about a prank.

And with that, a wild goose chase was born with one blog after another ostensibly providing the magic link to where readers could get their laugh at the expense of the Times. No one, of course,  actually had the goods since there were no goods to be had.  In all there were 15 bloggers feeding readers into a circle that contained eight blogs. All chasing a phantom punking.

I figured most people would realize they’d been hustled after three or four links because at that point plausibility has been substantially diminished. So the best way to prolong the ruse was to keep actual facts to a minimum, because actual facts could not only be cross-checked with a Google search, but worse,  could conflict with the “facts” in the next blog. So I asked my co-conspirators to use very few facts, much to the dismay of some very creative writers with implausible concepts — just to give a little bait to keep people hunting.

And it only took a couple hundred emails to get this going.  Some bloggers, of course, were too cowardly professional to play along and declined. I can now taunt them forever for having missed a good time. In private. Unless they tick me off. I’ve got a blog, you know, and I know how to use it.

The execution was choppy, but this was the plan: Everyone would post at 7 am sharp, New York time. And most did. We were either awake and at our keyboards, or had set up urls in advance along with an auto-post. This was critical in order to create a full circle.

But a couple of Texans, who shall remain nameless, messed up the time zone differences when they set their blogs to auto-post. And one blogger that was part of the planned nine-blog circle not only messed up his timing, but also mistakenly posted backwards to the blog leading into him. That meant a dead end. He was either playing an April Fool’s joke on me, or this was the clearest case of prankster malpractice the internet had ever seen.

In addition to that dead end, there were also blown urls that had been created in advance. And so, April Fool’s Day morning, there was a dizzying deluge of email with bloggers editing links to make it all work, as some folks went off to do that thing they call “work.” One blogger actually edited his outbound url using an iPhone while standing outside a courthouse, to bypass the dead end blogger and close the circle to eight.

All told, we had 23 blogs in on the game, which included law, medicine, gaming, and politics, as well as personal/quirky blogs. I had hoped to find a tech blog to add in, but never made a connection with anyone. And it would have been great to have had the Fail Blog involved — just think of all those readers that like to laugh at others chasing a phantom fail.

These were the eight inside the circle:

Turkewitz–> Simple Justice –> Patterico –> Ted Frank –> Popehat –> Dr. Wes –> Lemon Gloria –> Marc Randazza –> Turkewitz

And these were the 15 that fed readers via daisy chains into the vortex at various points, without whom this stunt wouldn’t have been nearly as successful:

Gamso –> Seddiq –> Tannebaum –> Bennett –> Frank

Movin’ Meat –> Suture for a Living –> Lemon Gloria

Grunt Doc –> Dr. Wes

Wise –> Barovick –> Crime and Federalism –> Popehat

Kill Ten Rats –> Frank

ABA Journal –> Simple Justice

Above the Law –> Popehat

Wendy & Jason –> Turkewitz

Windy Pundit –> Turkewitz

I hope I didn’t miss anyone, but we had late additions and a couple of late deletions and my head just about spun off its moorings.

Was it a success? You betcha, as we had many thousands of people chasing the phantom, just itching to see the Times get taken. How many were actually taken depends on your definition of gotcha, but I think anyone that clicked more than three links probably qualifies. Many, I assume, figured out early it was a prank but kept clicking out of amusement to see if there was treasure at the end of the rainbow, only to find the never-ending rainbow.

It’s worth noting that one media outlet was duped (or were they?) though that wasn’t the goal: The Village Voice. They did a round-up of April Fool’s media stories, debunking jokes and letting their readers know which ones were real or not (Did the Huffington Post Steal Their April Fool’s Day Joke? Plus More Media Gags!) Despite specifically looking to critique jokes and pranks, they got caught (?) by Scott Greenfield:

Today, almost every media operation in the world has already attempted or will soon attempt to make a joke at the expense of their readers, viewers, visitors, or customers. Most will actually fool very few, while even less will be funny…

…

Not a Joke: The New York Times got fooled by an April Fool’s Day story, just like last year. This one’s really good.

The Wall Street Journal wasn’t so hot on fact-checking either, when doing a story about this year’s April Fool’s Day hoaxes. They quoted and linked to last year’s punking of the Times to make fun of it:

Other Than That, the Story Was Accurate
“Note: an earlier version of this column had an item about a blog post by a personal-injury lawyer, Eric Turkewitz, announcing that he had been appointed the White House law blogger. Blogospheric chatter indicates a high likelihood that this post was an April Fool hoax. Mr. Turkewitz declined to give us a straight answer on this score, so, pending callback from the White House, we’ve taken the item down.”–New York Times website, April 1

When you check the date, fellas, you also have to remember the year. That sort of reminds me of commenters that make fun of spelling mistakes, while making their own.

And here’s an interesting bit about the visitors yesterday from the data I looked at: The lawfirm with the most people to visit was….wait for it….the Department of Justice. I know I speak for many in saying we sleep better knowing our tax dollars are well spent. And I would also like to welcome my visitors from the Supreme Court, Senate and White House.

The comments at many blogs were fun, as were the emails, and many happily conceded they’d been had. But the award for best comments goes to….Popehat. Really. Especially “JB” and “Scott Jacobs.” Instant classics.

Final note: As I type, the economy still stinks and we’re engaged in 2.5 wars. Those who read blogs such as this probably know more than their fair share of people suffering hardship. There is an earthquake/tsunami/nuclear disaster in Japan. So it’s probably healthy to take a moment out of the day to laugh at yourself and count your blessings. And on behalf of my co-conspirators, we were happy to help you get to that point.

Same time next year?

(No clients were hurt in the perpetration of this hoax.)