February 2nd, 2010

Court Finds Insurance Covers Fireman in Own Car

This is the issue in a nutshell: If a volunteer firefighter is in an accident while responding to an emergency, and the insurance policy of the car that clobbered him is already exhausted, can he get the benefits of the fire department’s own Supplemental Uninsured/Underinsured Motorist Endorsement (a/k/a the SUM policy)?

In a matter of first impression, the trial court in American Alternative Insurance v. Pelszynski said yes. The matter came before Suffolk County Supreme Court Justice Mark Cohen when the fireman filed for arbitration on the policy and the insurance carrier brought an action in Supreme Court to stay the proceedings, claiming the fireman’s car was not part of the coverage.

Justice Cohen shot down that idea, relying on a New York State Insurance Department informal opinion, dated February 8, 2002, which interpreted the SUM policy as similar to one where a person drives his own car for a business. He wrote that:

The opinion found that an employee of the business operating their own vehicle during the course of employment and while acting within the scope of their duty would be covered under the SUM endorsement.

If the coverage was available to someone in their own car using it for a business, then it should likewise be applicable to the fire department.

If it was the fireman’s lawyers that found that insurance department opinion for the judge, then that was some good lawyering by his counsel, Kevin Grennan.

h/t NYLJ ($)

Addendum: More from Roy Mura in the comments and at Coverage Counsel

 

February 1st, 2010

R.I.P. Jane Jarvis, Shea’s Queen of Melody (And a Lesson For Lawyers)

Jane Jarvis, the long-time organist for the New York Mets at Shea Stadium, died last week at age 94. Shea Stadium’s Queen of Melody inspired fans over the course of 15 years, and her playing, oddly enough, held lessons for lawyers. Stay with me here. I have a point this time.

Those of my age that grew up spending times watching the Mets at Shea remember her playing for the fans, and the fans responding, and Jarvis tinkling the ivories back at us. It was like an exuberant conversation during her 1964-1979 tenure as she kept us entertained between innings and during other breaks. Anyone who spent time at the now-gone ball yard remembers Jarvis doing Meet the Mets on the Thomas organ.

Ultimately she was replaced by over-amplified canned music (and a thousand other distractions of the modern ball park). But canned music, of course, can’t respond to the fans. Her playing was personal. She could see and hear what was going on, and speed up, slow down and modify on the fly. Live music is like that.

So where does the law come in to this? Lawyers often used canned materials too. We borrow briefs and memos from others for use.

But here is the important part: Too many lawyers, it seems, borrow the brief and don’t actually read it. They don’t make it personal to the actual facts of the case. The writing doesn’t crackle with originality and pertinence, because oft times it is neither.

I once read a brief that was filled with “this honorable court” and “respectfully” this and “respectfully” that, and behind all the obsequious writing was garbage. I always figured that if one wanted to be respectful to the court, one would tailor the brief to the actual facts and points that needed to be made. The writer would make it easy on the eyes instead of forcing the judge (or clerk) to go burrowing through the darn thing trying to figure out what the actual point is.

Other briefs I’ve seen over the years have clearly been filled with cut-and-paste from other briefs, or straight out of WestLaw. It’s pure laziness and the message that the judge no doubt receives is, “If the lawyer didn’t care, why should I?”

There isn’t anything intrinsically wrong with a form book, of course. If you are doing something for the first time it’s good to see how someone else did it. The mistakes are in believing that this the only way to do it, or that the form shouldn’t be changed at all. The mistake is in ignoring your audience.

Jarvis used sheet music to get her songs down when learning them. But then she adapted each song, just as the lawyer must adapt each and every argument (if, that is, you actually want to communicate a point to the judge)

Jarvis was a virtuoso when it came to the organ and the crowd. And that was because she didn’t sit back and rely on the forms she started with.

A 2008 article in the Daily News described Jarvis’s experience this way:

When it comes to music and the Mets, Jarvis once wrote the book. “I made all the decisions,” she says. She had a song for when the Mets trotted to their positions, and a song for when they smacked a homer, and then there was the Mexican Hat Dance to get things going when the home team really needed it during the seventh-inning stretch. An entire generation of Met fans came to identify the team’s championship run in 1969 with her lilting keyboard work. 

Rest in peace.

(P.S. Pitchers and catchers report in 17 days. I think Jarvis would want me to mention that)

Updated:

 

January 29th, 2010

FindLaw’s Continuing Problems with its "Blogs"


FindLaw continues to have problems with its so-called law blogs. Today’s problem: Their writer doesn’t appear to know a damn thing about law.

Why does FindLaw continue this charade of having blogs by producing crap content?

From its Philadelphia Personal Injury Law Blog (coded “NoFollow” so it doesn’t get Google juice) comes this mega-screw-up of a headline:

Doctor Found Innocent Of Malpractice

Oy. That’s what happens when non-lawyers try to write law blogs. Legal terms get thrown around willy-nilly without the writer knowing what they are doing.

It’s always been one of my pet peeves in newspapers when I see a headline declaring that someone was found “innocent” of a crime. Criminal juries, of course, don’t determine innocence. (Nor do civil trials.) Criminal trials just determine whether the prosecution sustained its burden of proof beyond a reasonable doubt. But at least when I see newspapers do it they aren’t conflating the criminal with the civil.

Memo to writer Emily Grube who continues to churn out this awful dreck at the behest of her employer: This was a civil trial and you used the language of the criminal world by waltzing into the guilt-innocence issue. That’s a whopper of a mistake, as we say in legalese.

But it’s clear this wasn’t an inadvertent mistake, because it continues in the content with this gibberish:

It took the jury less than an hour to find that Dr. Robert Stratton was not guilty of providing poor emergency room care to Dennis J. Kowalick.

Civil juries don’t determine “guilt.” That is a criminal law term. The civil jury in a malpractice case will determine negligence. And I can’t believe anyone would hire a writer for a law blog when that writer didn’t understand such fundamentals.

FindLaw obviously continues this crap because it thinks it will get SEO juice. These “blogs” are merely ads designed to dump as many SEO friendly terms onto the web, quality be damned. And if FindLaw need to use a dead child for its self-promotion, well so what, because the ends of self-promotion and making money are more important than anything else, right?

I assume that no one at FindLaw cares, since they’ve permitted this stuff to go on for months now. I would have thought that its professor-contributors from Writ: Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few, would have raised a ruckus since they are now associated with these shitblogs. Perhaps they don’t care either.

If FindLaw can find professors to write Writ, you would think they could find a lawyer or two to write blogs. But then, FindLaw would have to actually give a damn. Marketing appears to trump all else and remains the holy grail; produce quantity and not quality.

As Scott Greenfield discusses, anyone can have a blog, but not everyone should.

The wonder of it all is that there are lawyers that actually outsource their marketing to FindLaw. I assume that they remain utterly clueless as to what this company does in their names, though if they find out they could save a bundle (and their reputations) by taking their business elsewhere.

And a final obligatory note: You don’t have to be a lawyer to write a law blog, as Walter Olson shows at Overlawyered and Point of Law.

More:
Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law? (1/4/10)

 

January 25th, 2010

Detroit Lawyer Fined For Chasing Buffalo Air Crash Victims


Detroit attorney Carl Collins III has paid a $5,000 fine for chasing victims in the wake of the February 2009 crash of Continental/Colgan Flight 3407 near Buffalo, according to The Detroit News. According to the US Attorney’s Office he sent letters out to victims’ families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters.

Both of these actions came from federal authorities. New York has its own 30-day anti-solicitation rule (for all mass disasters), which applies to out-of-state attorneys as well. New York has thus far been silent on the issue of whether anyone has been pursued for violations.

The chasing was a big topic for me early in the year, as I tracked a string of law firms that started to electronically chase clients by running Google Adwords, before pulling the ads after they were exposed. You can read those posts at this tag: Buffalo Air Crash. This air crash was the first true test of New York’s 30-day rule that went into effect in February 2007. The 30-day rule was not affected when other parts of the new rules were tossed out by a federal judge in July 2007.

Some of those ads had been run through various marketers, with the effect that lawyers had outsourced their ethics along with their marketing. I had discussed the concept of such ethics laundering to beat New York’s 30-day anti-solicitation rule a year ago.

As of today, I am not aware of any attorney having yet been sanctioned for such e-chasing (which I covered two years ago in Attorney Solicitation 2.0 – Is It Ethical?) but that day is surely coming.

My thanks to Buffalo attorney Roy Mura, of Coverage Counsel fame, for passing on the Detroit News story.

 

January 25th, 2010

Trial Lawyer Lobbying On Health Care Bill

Over at Point of Law, Carter Wood points out that the American Association of Justice spent 1.33M in the 3rd quarter for congressional lobbying, much some of it on the health care bill. In his commentary, Wood says:

The filing provides more evidence that the trial lawyers helped craft language establishing state demonstration projects, preventing serious reform.

Now this is what the health care insurance industry spent: $38 million in 2009. (via WSJ Health Blog). [Update: This is limited to the health insurers, and does not, for instance, include drug makers. Also, note that the lobbying by the attorneys’ group includes a wide array of consumer issues.]

One of the constants of the tort “reform” lobby is pointing out what consumer groups spend to preserve rights, and ignoring the vast sums that come out of the Fortune 500 to lobby for various corporate immunities.