April 23rd, 2010

The Limits of School Liability


The Appellate Division (Second Department) has a nice decision this week discussing the limits of school liability on a playground. (Armellino v. Thomase) Sometimes a school may be liable for injuries, and sometimes not.

First, the facts: The third graders were at recess, and were permitted to separate from their other classmates. No recreational diversions were provided. The injured kid testified that he and his classmates began throwing pieces of asphalt from the track at each other. While this is obviously prohibited by school regulations, the teacher(s) assigned to supervise recess failed to notice or halt the activity. The incident escalated, the kid pulled another boy’s shirt over his head and ran away. He was chased, pushed down, broke his leg and had several surgeries.

Under this fact pattern, the school wanted summary judgment, claiming that there were no issues for a jury to decide. ‘Twasn’t our fault, they hollered.

Not quite so, said the court, defining the point thusly: Schools have a duty to “adequately supervise the students in their charge” and are subject to liability for “foreseeable injuries proximately related to the absence of adequate supervision.”

Schools, of course, are not the insurers of the safety of their students, “perfection in supervision” is not required, and schools are not liable for “every thoughtless or careless act by which one pupil may injure another.” Although a school must “take energetic steps to intervene…if dangerous play comes to its notice while children are within its area of responsibility” “school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.”

Thus, a student’s injury that is caused by “the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act.”

Because this particular case has a mixture of problems, kids chucking asphalt at each other, as well as a lack of supervision, it is left to the jury to sort out the facts of what actually happened.

 

April 21st, 2010

I’ll Be Speaking in Tampa, May 13


On May 13th I’ll be speaking in Tampa at an event sponsored by Injury Board and the American Association for Justice. The theme of the conference? Marketing and advertising for lawyers.

Now you might think this is an odd place to have me speak, given that I’ve often been sharply critical of a variety of high tech marketing techniques, so I’ll explain why I’m doing this.

The lead sponsor is a personal injury group blog called Injury Board that is, to put it mildly, severely under-utilized by it’s participants. It is rare to see any of the postings in that area appear in a Blawg Review or, in fact, linked up to any other external blog. It might happen, but I don’t generally see it. There seems to be little interaction with the outside blogging world.

A quick view of sample blog postings shows the following:

  • This one is about a local car accident, which has little importance to anyone else in the world except those involved. Why do you think it was written?
  • This one is about “where to put your hands on the steering wheel”and has the words “personal injury” linked to a lawsuit finance company with a pitch for their services at the end;
  • This one has a list of train accidents along with a call to action to contact the firm at the end.

Some of this stuff parallels the points I made when I jokingly offered my blog up for sale on April Fool’s Day 2009, with a list of worst blogging practices.

My feeling is that such blatant advertising in the form of blog postings is bad for the profession and bad for personal injury attorneys in particular. It’s already tough to find an impartial jury that isn’t tainted by lawyer-haters, and this kind of stuff just makes it worse. It is, to me, not just the digital equivalent of the bad TV commercial, but worse: When lawyers target particular accidents and individuals I believe that they cross the line into solicitation. (See Attorney Solicitation 2.0 — Is It Ethical?)

So I’m heading down to Tampa to deliver a message that some in the crowd probably won’t like, but which I think is important to deliver. But it isn’t just me that thinks it’s important, for so too does Tom Young, one of the co-founders of Injury Board and the person that invited me to speak. It’s a credit to Young that he’s asked me to come, knowing full well that my opinions may be deeply at odds with the conduct of some of the bloggers at Injury Board.

You can find some of the speakers at this link.

 

April 19th, 2010

The SCOTUS Nominee and The Tissue Box Test (Revisited)


A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised.

In fact, it was that desire to find out what kind of people that Justice Sotomayor had represented that led me to find, last year, that she had named her solo law firm Sotomayor & Associates. While others were interested in how she would rule on hot-button political issues, I wanted to know who she had stood up for. I wasn’t looking for the minor ethics lapse that I stumbled upon, and wasn’t intending to cause a small kerfluffle, I just wanted to know who she had actually done work for.

I was heartened when I read in The New York Times last week that, when a clerk was interviewing for a clerkship, Justice Stevens pulled a plaque off his wall that honored him with a small town lawyer award. Not because he was a small town lawyer, but for the kinship he felt. The short piece, part of a longer piece on memories of Justice Stevens, read:

DURING my clerkship interview with Justice Stevens, we talked about our hometowns. When I mentioned that I had grown up in a small town near Seattle, he leapt from his chair and pulled a plaque off the wall. It read: “Small Town Lawyer of the Year: Associate Justice John Paul Stevens.” It had been given to him a few years before by the bar association of Poulsbo, Wash.

At the time, I was puzzled that the award was so meaningful to him. I shouldn’t have been. Although Justice Stevens has always practiced law at the highest levels of the profession, his modesty would make him feel right at home in a place like Poulsbo. He may not have actually been a small town lawyer, but he was definitely a kindred spirit.

While that doesn’t mean that Stevens fit the definition of what I would be looking for, at least his heart was in the right place.

Will our next SCOTUS nominee know what it’s like to struggle on behalf of the desperate and downtrodden, in at least one part of a distinguished career? One can only hope.

More:

  • Stevens Retiring: Time For A Trial Lawyer (Norm Pattis)

    …The current court is composed almost exclusively of lawyer’s whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation’s federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans…

  • Obama’s Diverse Shortlist (Orin Kerr)

    …Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices…

  • Birth Of The Trench Lawyer Movement (Scott Greenfield, 2009)

    …In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…

 

April 15th, 2010

Good Luck Boston Marathoners

We interrupt this law blog to bring you a special report. Here now, coming to you live from his desktop…

To those running the 114th edition of the Boston Marathon this coming Monday, I wish you good luck and cool temperatures.

For those of you that don’t know, it is the oldest annual marathon in the world and the only one other than the Olympic Trials that has qualifying times to gain admittance. It is, in the minds of many, the Holy Grail of long distance running.

But I not only wish you luck, but hope that you’ll have as good a time as I did last year during this 26.2 mile long party. My recap from last year, to get you in the proper mood:

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys)

For those who are running, or seeking inspiration for a future attempt, a few extra links:

  • Martin Duffy: The End of an Unintended 40-Year Boston Streak:

    …Life is a little like the Boston Marathon. It is an allegory from bucolic Hopkinton through Natick, Wellesley and Newton to the City on the Hill, Boston. And in the beginning, you get lulled by its ease. From Hopkinton Green, the course opens downhill. It starts easy — maybe way too easy. And so you overdo and thrill in the fast miles. The hills and the challenges are down the road and way in the future…

  • The Allure of the BQ: Why the Boston Marathon Keeps Me Running:

    …I get asked from time to time what makes Boston such a pinnacle for runners. My answer is simple: it’s a pinnacle because it’s hard. There’s no lottery, and you can’t simply just sign-up for the race. You need to earn your way there, and that is exactly what I’m determined to do…

  • Boston Preview: Updates:

    Since last week, there have been several significant changes to the Boston elite start list…

  • Last-Minute Advice for Boston Marathoners:

    Nothing but strength and determination will help Boston Marathon hopefuls get over Heartbreak Hill on April 19. But this roundup of tips from runners who’ve braved the the famous marathon may provide some last-minute ideas that will help your overall race-day strategy..

 

April 15th, 2010

Does Blogging Bring Business?


Two weeks ago Lance Godard posed this question to me in Blawg Review #257:

You’re an active Web 2.0 participant. What specific impact on business, if any, have you seen from your online activities?

Since it’s a question I’ve heard a hundred times before it must be a reasonable one, and one worth discussing.

The answer, however, is impossible to quantify, and this is why: When potential clients I ask them how they got my name. I’m required to ask because, if I take a new matter, I must report that piece of information to the Office of Court Administration.

But what if the answer is, as often happens, an embarrassed “web” or “Internet” or “computer,” then what? It’s possible that they hit my website, a Google ad that I sometimes run, or that they stumbled on this blog. Or its possible that a friend or relative found me one of those ways and then passed the information on.

Which site they hit first is the type of question a marketer would want to have answered. And in theory a lawyer could try to find out which one by asking all manner of follow-up questions while the subject was fresh in the caller’s mind.

But I never ask. Because the answer is completely irrelevant to any issue that the caller has. They called because Mom’s cancer wasn’t diagnosed in time or little Johnny was hit by a car. They didn’t call to talk about marketing, web ads, blogs or any of that other stuff. They called because they have a problem. That which may be interesting to marketers isn’t interesting to the potential client.

And if it isn’t interesting to the client or relevant to any issue that they have, then it doesn’t matter to me. The moment when someone is distraught over a family member in the hospital is no time to satisfy an idle intellectual curiosity.

The reality is that, before I had this blog, I already had a number of people find me due to my website, which is pretty extensive. That wasn’t the primary way, of course, because I received referrals from former clients and lawyers that knew me.

The calls that come from “the web” tend to be cases I’m less likely to take. That’s because the calls haven’t been screened by someone else that knows me. Many of the web callers have previously been rejected by others, a conclusion that is generally pretty easy to divine within moments of the call starting.

There are, in other words, way too many variables for me to figure out what exact effect this blog has. The only time I know for sure is when attorneys that find this blog call me, as they will introduce themselves that way. Lawyers can be dispassionate about legal issues and chat for a moment or two before getting to the reason for the call. Potential clients, on the other hand, want to talk immediately about the incident.

So if it’s impossible to determine what effect a blog might have on marketing, why spend so much time on it? And the answer is easy; because I enjoy it. No one should blog if they don’t find the actual activity rewarding for itself, for it is immediately apparent from the writing if the person is doing it simply to game Google for clients, as opposed to writing for enjoyment.

When lawyers who enjoy the medium blog, you see personality. You see passion. You see opinions. You see people interviewing George Bush’s dog after he bit someone. You see stuff that they don’t teach in law school, and they don’t teach in marketing school.

Sis months ago Scott Greenfield wrote, regarding all the law bloggers coming to town:

Most new blogs are doomed to death from the outset, created for the wrong reason and certain to fail to achieve their creator’s purpose. Most offer neither insight nor viewpoint, as their creators are scared to death that taking a firm and clear position might offend a reader, a potential client. After all, the vast majority of blogs are born solely as a marketing vehicle, even if the creators follow the sound advice not to make them look too “markety.”
….

The barrier to entry into the blawgosphere has increased dramatically. It’s not one of cost, or concept, as much as one of merit, focus and purpose. If you have the desire to write, the guts to write something worth reading and the stomach to deal with the constant onslaught of stupid and crazy readers, there’s a place for you in the blawgosphere. If you think it’s the path to success in your law practice, you will be sorry and your blog will fail.
…..
When I did a CLE with Kevin [O’Keefe], who was busily promoting blogging as the way to expose lawyer to the world, I responded to his enthusiasm with a caution: Anyone can have a blawg. Everyone cannot.

Thus comes Greenfield’s Law: Everyone can blog, but not everyone should. Because if you aren’t enjoying it, it will show.

So the answer to the question — What specific impact on business, if any, have you see from your online activities? — is this: I have no idea, though I know that there are many lawyers around the country that now know who I am, and that the fun I have in writing in this tiny corner of cyberspace has raised my general profile. That is a form of indirect marketing that I discussed last year, and can also result, for example, in a law blogger being quoted in the paper if they can talk authoritatively on a subject.

But that type of general profile-raising isn’t the kind of “specific impact” that can be quantified anymore than one can quantify the effect of writing an op-ed for the local paper or law magazine.