November 19th, 2010

Massive 9/11 Case Settles as Plaintiffs Meet 95% Threshold

The September 11 suit concerning 10,000 responders and clean-up workers at the World Trade Center settled in June for $712M, with an important provision: At least 95% of the plaintiffs had to agree.

And that has now happened, reports the New York Law Journal.

The plaintiffs lawyers undertook a spectacular risk by taking these cases on, and had to borrow millions of dollars to do it. While critics in the past have looked only at the fees they will earn, few ever look at the risks of failure. A big tip of the hat to Worby Groner Edelman & Napoli Bern for having the cajones to do this.

 

November 19th, 2010

Linkworthy (Themeless Edition)

Things I’d write about if I just had more time:

This really deserves it’s own post: Hospital errors play role in 15,000 deaths a month, study finds

Why write a law blog? (Blawgletter)

Medical Malpractice Waivers: A Bad Idea Whose Time Will Never Come (Alan Crede)

I don’t usually do intellectual property stuff, but…The Battle of the Breastaurants: “Twin Peaks: v. “Grand Tetons” (Siouxsie Law)

While I celebrated my four-year blog anniversary yesterday, Bob Ambrogi celebrates his eighth year anniversary today. (Law Sites)

A 14-year-old girl is hit by a speeding car, rendered quadriplegic and brain damaged, and is only able to recover $200,000? Scott Greenfield explains (Simple Justice)

A $2.5M verdict for post traumatic stress disorder gets cut in half by an appellate court. John Hochfelder explains how it gets done

Did you know there’s a Golden Asshole Award? And further, that it’s an actual honor to get it? Vickie Pynchon explains why (Negotiation Law Blog)

Banks and hedge funds investing in lawsuits. Max Kennerly takes it on (Litigation and Trial)

How does the tort “reform” lobby get funded? C’mon, you know the answer…

Pink Tape has Blawg Review #290;

Colin Samuels continues his Round Tuit round-ups, with a discussion of the TSA scandal involving their new groping policy;

And TortsProf continues on with a Personal Injury Law Roundup.

 

November 18th, 2010

Abraham Lincoln, Twitter, and This Blog

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address? Because it teaches people to be succinct.

And today is the four-year anniversary of this blog. When I started it, it was with the desire to take complex ideas and break them down to simple concepts. I don’t know how well that worked, but it’s something I strive for and seems related to the concepts above.

I picked up that lesson from my father, who ran one of the largest plaintiff’s medical malpractice departments in New York until he retired. He demanded that every case be described in one line, almost like a Twitter post. Because if you knew the one-liner, it meant you knew the case. It also came in handy when the judge asked you what the case was about. So a case might be described, for instance, as a “10 month failure to diagnose and treat breast cancer in a 53 year old woman resulting in…”

And master legal writer Bryan Garner insists that, when framing an issue for court, a lawyer should do so in no more than 75 words. If you can’t do it in 75 words you don’t understand it, and therefore you can’t communicate it to the court

Brevity and clarity are important. They focus the brain.

And with that, I give you America’s most famous trial lawyer, who delivered these words 147 years ago:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

See also:

 

November 17th, 2010

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue:

 

November 10th, 2010

FuneralHomes.Com Digs Down Deep For Personal Injury Lawyers

When the email arrived, my first thought was: Can this be for real?

The pitch that came from FuneralHomes.com (coded “NoFollow“) was this: They are a directory of funeral homes. And they want to inquire about my “interest in a new marketing channel” that they have “for firms specializing in Medical Malpractice, Wrongful Death & Nursing Home Abuse or Neglect.”

It made me shudder. And made me think of the washed up lawyer played by Paul Newman in The Verdict, going to funeral homes to pass around his card, pretending to have known the deceased as he chased cases. But instead of standing in their parlors handing out cards, this company wants lawyers to hang advertising on their site where the bereaved might go in time of need.

So, not really believing this email was real, as I thought it too sickening to be true, I shot back a reply to its sender, Tom Keesee: Is this for real?

And Keesee called back quickly, perhaps excited about having a having a potential fish on the line. Yes, he said, it was for real.

But before he could launch too deeply into his sales spiel, I asked him about the ethics of it all. Lawyers don’t pay him for leads, he said, so there was no problem. Also, since they aren’t attorneys, they don’t have to comply with attorney ethics rules regarding solicitation.

I pointed out, of course, that the lawyers they wanted to do business with still had to comply with ethics rules. And wasn’t this solicitation? He told me, a couple of times, that his “legal department” had looked into it and it was fine.

But rather than dwell on whether lawyers advertising on a funeral home website is a permissible form of solicitation or not, I’m going to move right to the “smell test” as in, does this smell right to you?

This marketing madness happens to come at the same time that a debate rages elsewhere in the legal blogosphere on this subject, because the American Bar Association recently announced it was going to look further into regulating online activity for lawyers. Larry Bodine, fired the first salvo, from the perspective of lawyer-marketing, trying to stop the ABA from working on the project. Scott Greenfield worries that his opportunity to blog could be impaired because of the liars and scoundrels out there, claiming to be something that they are not. Brian Tannebaum points out that it was the marketers that brought this on themselves. There is more on this from Antonin Pribetic, and and a summary of the issues presented to the ABA by Carolyn Elefant. There seem to be many ways in which ethics can be laundered.

So here’s what I think: The ABA position doesn’t really matter. And you know why? Because when lawyers see conduct that they deem to be offensive and detrimental to the legal field  — and I think that lawyers advertising on funeral home websites fits that definition — then some lawyer-bloggers will write about the subject. And if those bloggers are sufficiently offended by the conduct, then they might publicize the names of those that are chasing cases in such a manner. You can see examples of such e-shaming here by Mark Bennett, or another by Kevin O’Keefe here.

The web moves very fast when it comes to correcting the behavior of those that act offensively, a hell of a lot faster than the ABA. Witness this week, for example, the conduct of Judith Griggs who edits a small magazine called Cooks Source. She stole the work of others, did it without attribution, and tried to justify the plagiarism by claiming that the web is considered “public domain” that she can use. Colin Samuels at Infamy or Praise did a long piece on the subject as part of his Round Tuit round-ups, but here’s the thing: If you Google “Cooks Source” now you can see how she and the company has been savagely beaten up by the web, with page after page of venom. Their Google reputation is shot.

There are some who used to believe that any publicity is good publicity, so long as the name is spelled right. In an earlier era, a person might remember seeing a lawyer’s name in a newspaper, though not necessarily the details. But now the details are easy to find. Judith Griggs will likely see those comments about her for decades to come. The old mantra about any publicity has been destroyed by the web.

So what kind of publicity is likely to come to a law firm that advertises on FuneralHomes.com?  Those attorneys that think this might be a good way to find cases ought to consider the potential backlash from those that are offended by the concept and wish to write about the subject.

The bar for attorney advertising has been lowered to new depths. It now appears to rest six feet under.

Updated: I was reminded of an old post of my by a friend, where a law firm decided it would be savvy to advertise over a urinal.