July 13th, 2010

Bar Exam Horror Stories (A Round-Up From Years Gone By)

The author, studying for the bar, July 1985.

Yes, it’s that time of year again. When all of those new law graduates sweat out not just getting jobs, but more importantly, passing the bar exam.  And how do I know they’re all anxious, sweating away the days even when studying in air-conditioned comfort? Because my blog keeps getting hit by those Googling “Bar Exam Horror Stories” and similar searches.

They’re hitting this spot because, it seems, I’ve hosted some of the best ones to be found. And because they are actively looking for something to do on the web instead of studying.

And so without further ado, a slightly revised re-post from last year to help fuel the anxiety of those last vomit-inducing days, my annual round-up of miserable bar exam stories…

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I think it’s only fair, as recent law grads work and sweat and cram and get all anxious about the bar exam, to remind them of some things.

First, that’s how you’ll feel if you try a case. Or make an appellate argument.

Second, the New York bar exam has had a couple of legendary screw-ups, and I’m here to remind you during your moments of insecurity, nausea and panic about them. I’d like to think it’s part of my job, but really, I’m just having fun at your expense.

First, there was the 1985 exam, which you can see me studying for in the photo, taken 25 years ago this month. That is not a laptop  you see next to me, as they hadn’t been invented yet. Just an old fashioned, hard-covered, briefcase.

That was the exam where the multi-state test results disappeared. As in gone. Vanished. Lost, stolen or teleported to another dimension, the great disappearing act was never solved.  That was for the 500+ people  that took the test inside one of the New York Passenger Ship Terminals on the west side of Manhattan.

I know first hand about that 1985 test: Your Bar Exam Answer Sheet is Gone — Now What? About 500 people had to re-take the exam. But not me, even though I was one of the unlucky ones. Click the link and see why.

Lest you think that was the only time our trusty bar examiners fouled up, fear not, they managed to do it again in 2007 by losing some essay answers that were typed on laptops, due to a software crash.

But that 2007 story seemed to go on, and on. To fix the problem of missing answers, the bar examiners decided to do a grade approximation. Trust us, they said, to get it right this second time. Trusting them might not have been such a good idea though, as a question arose due to an anonymous comment on this blog as to how, exactly, they did that approximation. It included giving a grade of 3/10 for an essay that was never written because the guy ran out of time.

And then the story got weirder still, after I called up and found out that an unknown appeals process existed at the New York State Board of Law Examiners. Lawyers creating a secret appeals process? Just how weird is that? An anonymous test-taker blogged his experience here, in the rest of that entry that followed my call.

But wait, there’s more! The guy who took the exam, the one who was told he had failed and then anonymously blogged his experience here, then went public under his real name, Eric Zeni. He successfully appealed, after after being told there was no appeal process. He had argued his first case and won. Zeni was sworn in as an attorney early in 2008. He now practices law out on Long Island.

And then there was 2008 in Virginia,where another software glitch fouled up the essays. You can read that sad story here: Virginia Bar Exam Foul Up? (Can the Bar Examiners Be Beaten in Court?)

Is there a lesson in all this? Yes there is. The law isn’t perfect, and neither is the process of minting new lawyers. The right side usually wins in court, but not always. If you represent people in private practice you will, at some time, face down not only miserable facts, but fundamental unfairness. And sometimes, even when you do everything right, you will still lose. Or your client will. Or both.

Life is like that. You prepare like crazy, you dot your those “i”s and cross those “t”s and hope like hell that your preparation pays off. But. Just in case. Knock twice on the wooden desk and bring your rabbit’s foot.

And one last thing: If you are studying for the bar, why the hell are you out there looking for bar exam horror stories?

 

July 12th, 2010

Drivers, Renters and Conflicts of Interest (Graves Amendment Raises Lawyer Conflict Issues)


Five years ago, a conservative Congress and President expanded federal power by enacting the Graves Amendment. This federal  legislation reached into state laws and granted immunity to car rental and leasing companies by overriding the laws of states that held the vehicle owners vicariously liable for the acts of their drivers.

But legislation has persisted against the rental car companies anyway, and conflicts of interest have been exposed as a result. Previously, after an accident involving a rental vehicle, New York attorneys would simply plead in the Complaint that the owners were vicariously liable under Vehicle and Traffic Law § 388. But with that law knocked out by the Graves Amendment (see: Car Rental Immunity Law Held Unconstitutional By Federal Judge (Updated – Reversed)) lawyers have been arguing that the owners were negligent in the way they entrusted the cars to the drivers or in the maintenance of the vehicle. If I were to rent a car with bad brakes from Avis or Hertz, for instance, and then rear-ended someone and was sued, the rental company might well be liable.

But when the defendants answer these suits, all too often there is just one law firm that represents both the driver and the rental company. This, as we say in legalese, is a big, fat no-no.

On June 25th, Supreme Court (New York’s trial level court) Justice Jack Battaglia took on the subject, without the plaintiff even raising the issue by motion. In Vinokur v. Raghunandan Justice Battaglia disqualified the firm of Shapiro, Beilly, Rosenberg & Aronowitz for trying to represent both owner and driver.

The issue arose when the leasing company sought summary judgment, based on the immunity that Congress gave them with the Graves Amendment. Not so fast, wrote Justice Battaglia, pointing out that:

An attorney who undertakes the joint representation of two parties in a lawsuit should not continue as counsel for either one after an actual conflict of interest has arisen because continued representation for either or both parties would result in a violation of the ethical rules requiring an attorney to preserve a client’s confidences or the rule requiring an attorney to represent a client zealously.

And when does this issue arise? Not when the issue is raised by the opposing party or the court, but rather, at the time the reasonable attorney should have been aware of it. According to Justice Battaglia, “in this case a reasonable lawyer should have been aware of the conflict of interest upon receipt of Plaintiff’s Complaint.”

The reason for the conflict should be clear, though it apparently wasn’t to the firms that have attempted the dual representation: If the leasing company is dismissed from the suit, the driver is left holding the bag for the entire verdict. The leasing company has an interest here in saying the car was in perfect working order, while the driver may be puzzling on why, for example, the car didn’t stop as quickly as s/he thought it should when the brakes were hit. Justice Battaglia wrote:

“…a law firm representing both the leasing company and the driver has an inherent conflict of interest where the law firm seeks to move for dismissal of the complaint only as against the leasing company since the driver would be left bearing full liability.”

And it doesn’t matter when the plaintiff raises the issue, or even if the plaintiff raises the issue. Because the driver may have a cross-claim against the leasing company that is completely independent of the plaintiff’s claim against the driver. How does the driver tell his lawyer that the brakes on the car rental didn’t work when the same lawyer represents the car company? How does the lawyers zealously represent the driver by doing adversarial discovery of the rental company’s maintenance records? Justice Battaglia:

In addition, even though a plaintiff may in some circumstances not assert any other basis of liability against a leasing company other than vicarious liability pursuant to Vehicle and Traffic Law § 388, a driver of the leased vehicle may assert, if appropriate, cross-claims against the leasing company for, among other things, having provided the driver with a vehicle with a mechanical defect.

The law firm could have been saved from this, perhaps, if they had the written consent of both of their clients. The court noted:

…the Law Firm may still represent both clients if conditions set forth in Rule 1.7(b) of the Rules of Professional Conduct are met. Rule 1.7(b) provides that, “Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.” (Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.7 [b].)

But, since this written consent was not obtained, the firm was disqualified from representing the driver as well as the leasing company. The court didn’t rule on whether the firm could continue to represent the leasing company, but it seems to me that a motion by the defendant-driver’s new counsel to disqualify his former defense firm could easily be made.

On a final note, the encroachment by the federal government on state laws is currently before Congress in the form of the Braley Amendment to undo the damage caused by the appropriation of power with the Graves Amendment. Ironically, people who claim to generally support state power over federal power are opposed, which tells you how political philosophy often takes a back seat to protecting the interests of Big Business from some on the right. Numerous consumer groups support the restoration or rights that had been stripped away by the Graves Amendment. The car rental and leasing companies, of course, want the continued immunity.

 

July 7th, 2010

I Could Make A Fortune…

Lawyering isn’t where the money is…Some of you, I suspect, may have seen a scheme like this elsewhere…

A guest blog from Jason Paris, a trial attorney here in New York:
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I came up with an idea, a good business idea, which might need some fine tuning, but here it is. I am going to start a new business.

This is the model. I take money from people telling them that I will pay them when something happens. I want a lot of money, and therefore I need to find something that people use a lot – I need a mass market. People drink soda, eat food, drive cars and get haircuts. I will have too much opposition from the food and drink industry to screw with them, someone has already taken the car racket.

So I am left with the haircut. Everyone gets a haircut. I am thinking that I should collect money from anyone who is ever going to have a haircut, i.e., everyone. In return I will promise if a barber or a hairstylist cuts the person’s ear, I will pay him, make him or her whole, pay the medical bills, provide salon-side assistance, put him or her at rest, send flowers, make him or her feel special, protected, in peace so that he or she could continue to live their wholesome life in his or her special way.

I am insuring against the risk of being cut in the ear during a haircut. Starting investment in my venture, ground level, is 25 million, in return for 5% of the profits. This is the best business opportunity of your life, you just do not know it yet.

Now how do I sell this idea, millions of people going through life with thousands of haircuts without having anyone cutting their ears? To sell my product, I have to scare the people. I hire a number of scientists and advertising people and they come up with numbers and statistics. They show the carnage that could be caused by having one’s ear cut during a haircut, the irreparable trauma from which one could never recover, the instances where children were killed, the sharp edges of scissors, the slow motion of a scissor cutting through the layers of skin in an ear.

I advertise. I tell them that they could trust me. They are in good hands. Like a good neighbor, I’ll always be there. When they have my insurance card in their wallet, they would sleep better. I am always there for them in the time of the tragedy.

But the business is still not picking up speed the way I want it to. What should I do? I should pass a law. It should be mandatory for anyone who is ever going to have a haircut to have insurance for it. I agree that I will provide minimum protection under the law. To make sure that people do not evade the law (that they do not avoid paying me), the law provides penalties. Those who do not have an insurance card for a haircut cannot have one. If a salon gives a haircut to a patron who does not have a haircut insurance card, it will lose its license, pay a penalty not to exceed $250,000 and/or imprisonment of 5 years.

Now, finally, money starts flowing in. So I decide that who the hell are the people to see what my promise is in writing before they buy my insurance. I am not showing it to them. Anyway they have no option other than to buy it if they want to have a haircut. So I will give them a copy of my promise only after they buy the insurance.

Am I wrong? Of course not. There are some claims, here and there. Some butcher turned a hairstylist cutting someone’s ear, so I have to pay. I am paying, but it annoys me; I hate it.

Suddenly, one year the claims are a few too many. This really pisses me off. I hear that some poor schmuck in Brooklyn who couldn’t pay his rent and was about to be evicted from his apartment with his kids, you know the low class immigrant types, told his cousin barber to cut his ear so he could get the insurance payout. This drove me crazy. It is like cutting flesh out of me. I have to deal with this.

These staged ear cuttings must stop. I am going to raise my insurance rates on EVERYONE. I will tell everyone that since I have to pay an illegitimate claim, everyone has to bear the burden. I was pissed off when I said it, and never thought people could buy it. But they did.

They thought my raising the rates was justified. So I kind of like this staged ear cutting phenomena. Because the longer it is there, the more ammunition I have in my favor. How do I ensure that it is there for a long term?

I will assign people in my company just to find it. Then I have to make sure that the attorney general has an “ear cutting” unit, the district attorney has an ear cutting unit, the United States Attorney has an ear cutting unit, and the Insurance Department has such a unit. We will have a hotline for anonymous calls for staged ear cuttings, so all those people who hate their neighbors or relatives will report such claims, even it is not true. To justify these units’ existence and their paychecks, they have to find something, right? Even if they have to stage a staged ear cutting, catch the poor bastard and prosecute him or her, who deserves it anyway.

I will award the efforts of the ear cutting units, by publicity, photo shoots, awards for their dedication to public service, for their zealous efforts on behalf of the people of this great state. They are the people who fight to eradicate the fraud and criminal elements engaged in ear cuttings from our society.

I want to make sure that the words “fraud,” “crime” and “staged” are always associated with this type of claim. When we take them down, we take down the people whose ears were cut, the hair salons, the barber shops, the medical facilities, and their attorneys – the whole conspiracy ring. We send the message!

I should not lose focus because I need these staged ear cuttings. Because while we are in the attack mode, the people are not going to look at me. I hate when people look at me. I have nothing in common with them. But there is something more that I do not like, it has been bothering me since the beginning-that I have to pay so much for this stupid injury.

Since it is now mandatory for everyone to pay me, I want to limit what I have to pay out. I will pay the poor schmucks’ EMS and ER and hospital treatment, but beyond that I will not pay, unless there is a serious ear cut. I looked at most of my claims and most fall into a simply cut with bandages. I do not want to pay for these claims anymore.

So we pass a law that I only pay for serious ear cuts, and we define it to mean only complete amputation of the ear, rupture of the ear drums (we make it plural so that only both ear drums ruptures fall into this category), disfigurement that you cannot cover (for most people it could always be covered with hair), permanent deafness (we leave it unclear so that in the future we will argue before a judge that it only applies to both ears, otherwise why did I (the legislature) say “permanent”, but I recognize that I might lose this battle.

Then we place the burden on the people whose ears have been cut to prove that the ear cut was serious. Let them prove it that it is serious. I have to be vigilant every step of the way, I have to always come up with more stuff for them to prove; I fight this battle in court. I really do not have to because I won this battle a long time ago, but it is just in my nature. I am a fighter, I fight against the adverse forces, the dark cloud, i.e., the injured people who are all out there to get my money.

We also make it difficult for the doctors and hospitals to collect. We, I, pass laws to make it so difficult for health care providers to get paid that no one will touch those whose ears have been cut. We put in the laws the words “fraud” and “staged” so those who doubt me have nothing more to doubt.

We forever stain those who in any way touch those whose ears have been cut. Let’s throw them a bone, give them something, I will ease the serious injury threshold a little bit, but not too much. I want to keep them in check. I love this country that let’s me get away with so much. We should cherish this opportunity to be free.

This investment opportunity is only open to a few like-minded leaders.

 

July 2nd, 2010

July 2nd: A Day to Declare Independence (And Celebrate Juries)

Each of the last two years I have used July 2nd as a jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write those two posts about why the day is so important to the jury system. So here they are:

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

July 1st, 2010

More September 11 Cases Settle – $1.2B for Property Damage – Judge Denies Request to Seal Record

Judge Alvin Hellerstein today approved the settlement of numerous property damage claims from the September 11 attack on the World Trade Center. The defendants were the airlines, security companies and other aviation related companies. The plaintiffs were both subrogated insurers and plaintiffs with direct claims. In doing so, he also refused the request of the parties to keep the information sealed.

After 180 depositions, and millions of pages of documents, the parties settled for $1.2B, an amount that Judge Hellerstein said was “fair and reasonable.” This represented a 72% discount off the $4.4B in property claims that were made.  According to Judge Hellerstein, “The discount was based on factors common to all settling parties, including the risk and expense of a trial, and the ability to resolve the case without any party claiming victory or admitting liability.” This is the Order of the property damage settlement.

The settlement takes into account a liability cap that had been imposed by Congress in the immediate aftermath of the attack (The Air Transportation Safety and System Stabilization Act). Because of that cap, some of the plaintiff’s associated with developer Larry Silverstein, long term lessee of the World Trade Center,  objected to the settlement, as the insurance policies of certain defendants  will be exhausted. This is true, for example, of Huntleigh USA, which was responsible for screening passengers at Logan International Airport in Boston where United Flight 175 originated.

The capping legislation is the same piece of law that formed the September 11 Victim Compensation Fund for those that were killed or injured as a result of the attack. The Fund gave automatic payments to those injured and the families of those killed, but in doing so people had to relinquish their rights to sue. The vast majority took this route.

But not all went with the Fund. Judge Hellerstein notes in his opinion that, with respect to the remaining personal injury cases that were filed in court, all but three have now settled.

This settlement comes fresh on the heals of the massive $712M settlement for 10,000 first responders that brought suit as they did not qualify for the Fund, and which was also before Judge Hellerstein.

Finally, the parties sought to keep this settlement sealed. The New York Times moved to have it unsealed, and this motion was granted in part. See: Order unsealing settlement. The aggregate settlement amount was revealed, but not the amount to individual claimants.

Judge Hellerstein, in deciding the issue of whether to seal the settlement or not, had to balance the common law right to judicial documents, the First Amendment rights to access, and among other things, the extent to which revelation of the settlement may chill the efforts of others to settle the remaining suits. The Aviation defendants were also concerned that, given the massive size of the settlement, others would come to see this as an acknowledgment of liability. He did find, however, that the privacy interests of the plaintiffs weighed heavily in favor of keeping specific settlement amounts confidential.