December 14th, 2010

Supreme Court Kills New York’s “New” Attorney Advertising Rules

Yesterday, the United States Supreme Court put the final nail in the coffin of New York’s “new” attorney disciplinary rules regarding advertising when it refused to review a Second Circuit decision that struck most of the rules. I put “new” in quotes because they actually date to February 1, 2007, just months after I opened this little blog.

And I’ve been following the issue ever since. See January, 5, 2007; New Attorney Advertising Rules (Is This Blog an Advertisement?)

Most of the rules were first struck down by the U.S. District Court in July 2007 when challenged by Public Citizen on behalf of the upstate firm of Alexander & Catalano. And the Second Circuit upheld those determinations in April of this year. (Sonia Sotomayor was on the panel that heard the case, but had gone to the Supreme Court by the time the decision came down.)

Those broad-based rules tried to stop a variety of advertising techniques, but did so in a fashion that ran headlong into the First Amendment. The rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.

As I pointed out in one of my first posts, simply putting a picture of yourself on a lawfirm website could be construed as violating the prohibition against “characteristics clearly unrelated to legal competence.” The picture will tell the potential client your age, your race and your sex, but what will it tell them about legal competence? Nada. Ergo, under the new rules the photo could be a violation.

Obviously, this wasn’t why the rules were crafted. They came in response to the embarrassing aftermath of the October 2003 Staten Island Ferry disaster that killed 11, and the onslaught of ads in the Staten Island Advance the next day. Those ads were placed while rescue efforts were still ongoing at the ferry that day. It was not one of the better moments of the personal injury bar. And that incident brought about New York’s 30 day anti-solicitation rule, part of the new set of rules but one which was not affected by this ruling.

But the new rules went after problems that didn’t just have to do with 30 day time limits.

Senior Judge Frederick J. Scullin, who wrote the District Court opinion striking down almost all the other rules, summed up the problem this way in a buried footnote on page 29 of his decision:

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of he legal profession has been greatly diminished.

But in re-crafting rules in an attempt to solve this problem, the crafters went way too far. So far, in fact, that the only way to defend them was to assert that attorneys couldn’t use humor.

For it was humor that formed part of the basis of the state’s response to the Alexander & Catalano lawsuit. AS described the by state in one of its filings, the firm advertised that it:

retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.

And the argument by the state against this? That it wasn’t truthful. See: New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor

When I read the state’s brief, that I discussed at some length in that post, I knew the rules were toast.

While the ads may have been tasteless and embarrassing to the profession, no person with a functioning brain could have believed that the firm had actually been retained by aliens or done any of the other eye-catching things in those commercials.

And so the First Amendment ruled the day, as the rules over reached to ban more than just dishonesty.

Now I sure as hell wouldn’t want to pick a jury in any courtroom if my firm was busy running such moronic ads, but taste is not something that can be regulated.

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See also on the Supreme Court’s action:

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names (ABA Journal)

US Supreme Court to New York Lawyers: You Are Awesome (Tannebaum @ My Law License)

Supreme Court Denies Certiorari in Lawyer Advertising Case (Robson @ Constitutional Law Prof Blog)

Good News for ‘Heavy Hitters’: High Court Sidesteps Lawyer Advertising Dispute (Koppel @ WSJ Law Blog)

December 1st, 2010

Hot Coffee Goes Sundancing

Everyone has heard about the McDonald’s hot coffee case where Stella Liebeck was scalded with third degree burns. And almost everyone has an opinion. Every so often, someone knows the actual details. Most though, just know that some lady spilled hot coffee on herself and sued McDonalds for millions. A Google search for hot coffee Stella Liebeck turns up over 11,000 hits, and hot coffee lawsuit turns up 60 million.

Now a movie has been made called, appropriately enough, Hot Coffee. And this movie explains why you know about this suit, why it’s part of the discussion over the civil justice system, and how it was used (and misused) for propaganda purposes. This is the blurb from the Hot Coffee site (which also has a trailer for the film):

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee.

Why write about this now? Because the documentary was selected today to play at the Sundance Film Festival. The festival picked just 16 films out of 861 submissions.

The Sundance site had this blurb on the film:

(Director: Susan Saladoff) Following subjects whose lives have been devastated by an inability to access the courts, this film shows that many long-held beliefs about our civil justice system have been paid for by corporate America.

The incident occurred in 1992, 18 years ago, and this one case still fuels debate. Why? It may because there are continuing attempts by the corporate world to gain immunity for negligent acts by calling it tort “reform.” And the way the argument is made is by looking for outlier suits, and trying to use those outliers as a means of changing the system as a whole. (Whether the McDonald’s case is an outlier will depend on your own viewpoint after reading the facts, but that is how “reform” politics fundamentally works.)

The debate rages on.

November 30th, 2010

ABA Journal Lists Annual Blawg 100 (And Includes Me Again)

I’m flattered. I don’t know how else to say it. The ABA Journal, the official magazine of the American Bar Association has picked my humble little blog as part of its 100 best law blogs in the country. That’s three years in a row now.

If you’re a new reader looking to see what this blog is about, you can read my 1,000th post where I discussed highlights of the past four years and gave links to those I thought interesting.

Turning to the ABA list, it will of course be criticized. Because really, picking a “best of” when it comes to a blog is not just a case of comparing apples to oranges, but of comparing apples to carburetors. Or chairs.

They will also get criticized, if the past is any indication, for having people vote for their favorites. Each blog is put into a category (mine this year is Torts) and folks have until the end of the year to vote. This voting thing has led in the past to ballot-stuffing, as happens in these types of online polls where some get a little too enthusiastic. (It’s also why I’ve picked Paris Hilton as my campaign manager, as discussed below.)

When the ABA Journal first created the Blawg 100 in 2007, I was pretty harsh because they had ignored the entire personal injury field; both plaintiffs and defendants, both small cases and mass torts. It wasn’t the ABA Journal‘s finest hour, but they did learn from it.

The second year they added two personal injury blogs — mine and the defense-oriented Drug and Device Law blog — and included me in a “Regional” category with law blogs regarding China, South Florida, Los Angles and Texas, all writing about different stuff. Like I said, it’s comparing apples to carburetors.

Last year six out of the Blawg 100 dealt with personal injury law. That was a big change, and a nice development, given that the ABA is the largest bar association in the nation and doesn’t always spend enough time with the consumer end of the law (personal injury, criminal, immigration, matrimonial) as it does with the big business interests. The category that time was called “Geo” and was once again based upon what part of the country (or world) the blog focused on. I was grouped again with some blogs that had nothing to do with this particular field.

Now this year the ABA Journal has a torts category, and I think they finally hit the nail on the head from an organizational perspective. Using the practice area as opposed to the regional area is a more logical approach. And they’ve picked some great blogs:

Abnormal Use: Lawyers at the tort defense firm Gallivan, White & Boyd write on products liability and conduct occasional “Abnormal Interviews” featuring Q&As with law professors;
Boston Personal Injury Lawyer Blog: Ignore the stock personal injury template that Alan Crede uses and concentrate on the writing. He’s a newcomer to the blogosphere and well worth the read;
Drug & Device Law: BigLaw firm Dechert has a group blog that focuses on the defense of, well, drug and device cases;
FDA Law Blog: Another newcomer to the blogosphere, the firm of Hyman, Phelps & McNamara focuses on government regulation of the food and drug biz;
Jackson on Consumer Class Action and Mass Torts: Another BigLaw entry, this by Russell Jackson at Skadden, Arps, Slate, Meagher & Flom, focusing on the defense of mass torts;
Marler Blog: Plaintiff’s attorney Bill Marler is the nation’s Grand Poobah of tainted food cases;
The PopTort: One of my favorite, blogs, put out by the plaintiffs-side Center for Justice and Democracy; they don’t sit still when the tort “reform” types try to protect big business from their own negligence.

Paris says to vote for this blog. Because it means little. And she knows a lot about that.

Now before I get to the obligatory “Vote for me” stuff, I note that by including me they have used up a valuable spot that could be taken by others. Two blogs, off the top of my head, that deserve to be included in the 100 are Overlawyered, which was also overlooked last year, and the irreverent Popehat. I don’t always agree with what their authors say, but there is little doubt that they are both exemplary law blogs that ought to be on any one’s “best of” list.

Even if you don’t want to vote, it’s worth perusing the names in the Blawg 100, as you are bound to find some new and interesting law blogs that you hadn’t heard of in the past.

I’ll also note that the BigLaw entries have a ready source of voters…all of the employees at those big firms, each with their own email address to use when registering. So expect one of them to “win” the vote.

Now we get to the Vote For Me nonsense. Bear in mind that this is all a meaningless. But, since beauty pageant’s are supposed to be fun, I’ve once again trotted out Paris to be my campaign manager to help hustle a vote here and there. I figured she was the right one to pick for a beauty pageant.

(Paris Hilton photoshopping by Dan Turkewitz)

November 28th, 2010

Tony Hawk’s Shred for Wii by Activision (Review: How Many Ways Can you Say Awful?)

Personal injury law is a consumer issue, usually dealing with individuals battling corporations. But I’ll stray off that theme a bit today, to review a consumer product I did battle with over the weekend. It’s my blog and I get to do that kind of thing, especially if the product ticks me off because it doesn’t work.

Tony Hawk, for those that don’t know, is a skateboarder. One of the best. And he’s making a killing, it seems, by licensing his name to products as Tony Hawk, Inc.

One of those products is a video game designed for the Wii called Tony Hawk Shred, marketed by a company called Activision. Activision had marketed Guitar Hero, a mega-hit video game with a guitar used as the controller, so maybe the company thinks consumers will buy any game they distribute.

If you are the type to think that way, let me clear it up today with this review: Tony Hawk Shred is not yet ready for prime time. After a few hours of hook-up attempts and product returns, on behalf of a certain child that sleeps down the hall from me, I never did get this thing to work.

This is the idea for the game: A disc goes into the Wii computer, and you use a mock skateboard/snowboard filled with hi-tech doo-dads that’s placed on the floor for the gamer to stand on. The board is motion-sensitive and is supposed to act as a controller, the same way a handheld joystick might. Then, if it actually works properly, it responds to the user as it gets turned, jumped, grabbed and otherwise tricked upon to mimic skateboarding or snowboarding. As I said, that’s the way it’s supposed to work. You can see the commercial for it on YouTube.

Why would I review such a product on this blog? Because my 8-year-old boy — who loves to skateboard and snowboard — got one from his Nana as a present, and that means Dad hooks it up if it’s beyond the kid’s capability. So I tell said kid to try to do it himself, because he should learn how these things work, and because my video game experience is rooted in Pong, PacMan and Asteroids a few decades back. I confess that I also dabbled a bit in Solitaire and Minesweeper in the early ’90s when I had my first computer, but let’s face it, I peaked with Pong. No one will confuse me with a joystick cowboy. So the smart money bets on the kid to hook it up if he can.

Tony Hawk, center, showing off the controller board with fans who clearly were not in my basement this past weekend

But he couldn’t. So down to the basement I went. And the problem he seemed to be having is that the controller/board has to first be “calibrated” to the Wii. I don’t know exactly what that means, but I do know that the Wii computer has to talk to the board/controller computer and that this dance between the two is a necessary step to start the game.

So after the kid tried and failed, I took a crack at it. And 45 minutes later, I hadn’t done any better. The instructions were simple, and after following, re-following, re-starting, re-booting, changing USB ports, changing batteries, and standing on my head to spit nickels, I finally buckled and called Activision’s technical support.

By a show of hands: How many think I could get a human on the line in less than 20 minutes? Right. Does anyone actually like these electronic answering service systems, other than the companies trying to save money by not hiring enough staff?

But I eventually got the human, finally, and she told me to move everything in the room at least four feet away from the board, so the board’s sensors wouldn’t be effected. And to move any heavy metal objects away. But after re-arranging my basement so the magic board sat there in the center by itself like some museum diamond, and even standing in another room to make sure not a hair moved in the vicinity of the computers while they tried their calibration flirtation, we still didn’t have a calibrated skateboard/snowboard. And we know it didn’t work because there was Tony Hawk on the TV telling us so. Over and over and over again.

So Activision’s technical support rep gave me a special number to call for advanced technical support. Ah ha! The magic ticket, I figured.

Only after hanging up, however, did I realize that she had given me the same number I had just dialed. Back into the electronic answering system I went, as the steam blew out from my ears.

Before going on, let me give you a tip if you have the misfortune of calling Activision technical support and being trapped inside its virtually humanless hotline. If you want an actual, living, breathing person to help you, do not speak any of the following logical commands at the voice prompt: “Help.” “Customer Service.” “Human being.” “Representative.” Nor should you repeatedly pound on the “O” as this won’t get you an operator, though it might get you disconnected so that you have the pleasure of starting all over yet again.

No, the magic words are “Live Agent,” to distinguish it I suppose, from the dead agent robots that the evil mastermind designed to exhaust your patience and have you hang up, so that Activision and Hawk need not pay more salaried humans. Most people, I suspect, will hang up in frustration after being unable to find a human on the hotline, which I guess is the idea.

Back to the story: My new Live Agent — a perfectly pleasant gentleman who I imagine is forced to put up with this crap all day long for those that can get through — suggests our particular game might be a warranty issue, which I understood to be a polite way of saying I have a lemon. So I call the store to swap it out and start all over, except of course that they have none in stock. Nor does the store in the next town over, but I do find one in the Bronx, and finally fight my way through the crowds for the swap. The salesman who did the swap told me he’d heard of problems with the Wii version of the game.

Now you know where this is going, right? The second piece of crap was just as bad as the first. The controller, that being the board, refused to calibrate. We never did get the game working.

The kid with his Tony Hawk shirt, before he got the crappy game as a present

The kid with his skateboard and Tony Hawk shirt, before he got the crappy game as a present

By this point, my kid had developed a new mantra. It goes like this: “I hate Tony Hawk.” I doubt he’ll wear the Hawk shirt again that you see him sporting in the photo to the right. I thought about telling him that Hawk probably didn’t design either the hardware or software; that he’s just an athlete that licensed his name. It wouldn’t be a bad lesson for a kid.

But then I thought, why should I defend Hawk? He wanted the money so he created Tony Hawk, Inc. and licensed his name. And besides, he claims to be involved in making the games. If he wants to preserve his name he must make sure the stuff with his name on it actually works. You don’t get to take the good stuff (money from licensing) without risking the bad (lost fans and shredded reputation if the product stinks).

When I brought the game back for a refund the salesman told me that the model released last year (Tony Hawk’s Ride) was also riddled with complaints about the Wii version. This was supposed to be the new and improved model. You’d think they would have worked the bugs out of the system with this one. But the guy told me that people will buy anything with Hawk’s name on it, so maybe management (and Hawk himself) don’t really care?

When I buy a computer, I expect it to work. Which is why I’ve used Macs since around 1995. And when I need to call tech support, Apple taught me to expect a person on the line that will actually help. Tony Hawk’s Shred for Wii fails miserably with respect to both the game itself and the support it offers.

But wait, there’s more! You know that prompt you sometimes get asking if you’d like to take the customer satisfaction survey at the end of the call? The one you always answer “no” to? This time I said yes. And as promised, the call came in two minutes after I hung up with tech support. And this was the kicker: After one question the customer survey line simply went dead. The company couldn’t even do that right. Or, perhaps, they really don’t want to know.

But at least I know this blog works.

Update 12/28/10: A Tony Hawk Christmas (Shred Game, Updated)

November 24th, 2010

Happy Thanksgiving

Wishing one and all a happy and healthy holiday with the family.

Last year at this time, I did a Blawg Review based on Arlo Guthrie’s Alice’s Restaurant Massacree. If you listen around noon tomorrow, you ought to hear it come around on the radio. The song, that is, not the blog post. Because Alice’s Restaurant is the name of the song. Not the blog.

So give a listen and feel free to sing along. With feeling. In four part harmony if you like. Or not. It’s gonna be played anyway.

Go off and have a Thanksgiving dinner that can’t be beat, and at the end of the day, don’t forget to take out the garbage, using such shovels, rakes and implements of destruction as you see fit. To the cans. Not the dump. Which will be closed on Thanksgiving. Though I’d never heard of a dump being closed on Thanksgiving.

But you get the idea. If you’re sitting down with family, as I hope you are, look around the table and count your blessings.