January 8th, 2010

Linkworthy


Medical researchers go hunting for a link between disease and lawyers, and Max Kennerly takes the “research” and rips it limb from limb;

The PopTort has become, over the last several months, a truly outstanding blog. They wrote recently how Katrina hospital victims were, literally, dead in the water, and how tort “reform” in Texas failed to bring docs back to rural areas;

Kevin, M.D. has a round-up of his most popular posts from 2009, many of which have a legal angle to them;

Avvo makes 8 predictions for the legal field for 2010;

The NY Court of Appeals hears oral argument on the issue of “sole proximate cause” of the worker as a defense to strict liability under our Labor Law;

Since when did cyber-stalking become a gender issue? Eugene Volokh starts the conversation. [Edit: Subsequent links removed 7/30/10 as they went dead]. (Previously here, Twitter Followers and Stalkers — Can You Tell the Difference?);

Am I my blogger’s keeper? Carolyn Elefant and Brian Tannebaum on ethical issues and lawyers‘ professional obligations regarding marketing;

And Blawg Review #245 comes at us from Charon QC with this exquisite theme:

I have no theme — other than to look at as many good blog posts and bloggers as I can under various quasi-random headings.

 

January 8th, 2010

NY Judge Bans Social Security Numbers In Subpoenas


Last year I warned about the danger of lawyers allowing social security numbers to be filed in the courthouse (Client Privacy and the Courthouse File)…

One day the scandal will happen, and I want to make sure my clients don’t get caught up in it. The problem is simple: Our court files are open to the public and all manner of private information gets place into those files…

And yesterday, in the New York Law Journal, (no link) comes the story of Supreme Court Justice F. Dana Winslow of Nassau County refusing to sign subpoenas in a medical malpractice case because the social security numbers were on it.

In an interview with the NYLJ, the judge said that he gets papers with Social Security numbers on a weekly basis but this was “the first time I had a chance to do anything about it” because ordering the subpoena would have placed it in the public record.

The filing of Social Security numbers in federal court was banned locally many years ago and its been years since I changed this once-routine item in my own office. I’ve even made a habit of asking defense counsel, before the deposition starts, not to ask for the number on the record since the transcripts often get filed as part of motions. Most comply. Those that don’t are met with an objection, but they never fight it. Everyone understands that this works both ways. Defense counsel doesn’t want their own clients private information in the courthouse file either, and much can come out in deposition.

The state system, it appears, is finally getting around to dealing with the issue. The Office of Court Administration said they were “examining” the issue of social security numbers. How many years it will take to examine this oh-so-complex issue remains to be seen.

Updated: The decision is here: Ahamed v. CABS Nursing Home

 

January 6th, 2010

Can A Cartoon Law Exam Help You in the Practice of Law?


We start with a law professor that wants to make an exam “fun” by having students relate a cartoon to course materials. Then we move to a practicing lawyer that rips that idea to shreds and beyond. But, believe it or not, I think the concept can lead to better lawyering.

This little idea emanated from Howard Wasserman at TortsPrawf, who wrote:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Scott Greenfield, who often writes of how out of touch law professors are with the actual practice of law, was not amused by this “fun.” He wrote:

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.

But the idea clicked in my head, though not for the reason Wasserman stated. Many practicing lawyers, the folks in the trenches, can’t write because they can’t sharply identify the issue and present it up front. One-frame cartoonists, however, know all about succinctly nailing the issue.

That succinctness is something I first practiced when working for my dad after law school, because one of his office rules was that every case had to be reduced to a “one-liner.” Thus, a complicated medical malpractice case, that might have many different issues, would be reduced to:

1 year delay in diagnosing breast cancer in 52 year old woman, married, three kids

And that one-liner came in handy not just for office management, but when you approached the bench at a conference and the judge asked what the case was about. Five seconds later the judge knew what is going on and could delve into those parts of the nitty-gritty that might be needed for the conference. That one-liner also served as the opening of every brief.

Law school exams teach you to write, and write and write. Then write some more. And that may be wrong. Perhaps they would better serve aspiring lawyers if they taught them to more sharply focus the issues and write less.

How sharply? Give each student a maximum of 75 words to define each issue. That is a skill they can use in the practice of law. With just 75 words, its tough to bluff.

That 75 word limit comes, by the way, from writing guru Bryan Garner. If you can’t define the issue in 75 words, he teaches, you probably don’t know what it is. Everyone that attends Garner’s CLE class walks out amazed after watching numerous videos of appellate judges discussing how poorly the issues are framed by the lawyers, and even how difficult it might be to find them in voluminous papers.

So that cartoon idea does have some merit to it, though not for the “fun”reason. Teach the students to write less, not more.

And as to the length of this post, if I had more time I’d have written less.
———————
Addendum: Scott Greenfield wrote last year about how Twitter cruelly forces that type of brevity.

 

January 4th, 2010

Are FindLaw’s "Blogs" Tainting Its Clients, Commentators and the Profession of Law?

J’accuse.

In looking at FindLaw’s new gaggle of so-called “blogs” that are little more than crappy search engine fodder and client solicitations, I struggled to find the right word to describe them. The ramifications of these crap-blogs are important, because FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole. And because this is likely to be a source of discussion going forward, it also means these so-called “blogs” need an appropriate name.

Just as the two-week holiday started, I noted that FindLaw ripped-off the name of my blog, recently creating their own New York Personal Injury Law Blog. (Link coded as “nofollow” to avoid giving Google juice). But the problem, as noted by others, isn’t just that they ripped off my name, but that they did so with unadulterated dreck. That was one of many new, similar sites that they created.

To be clear, dreck-bloggers aren’t interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation 2.0, a subject I dealt with two years ago. Put bluntly, many of these dung-blogs are electronically soliciting clients. E-chasing, for lack of a better word.

In this posting, for example, FindLaw re-writes the story of a local accident that killed four and injured two, and in just the third sentence its author spits out:

If speed was the factor that caused this collision, then the families of the victims (and the surviving victims themselves) could hire a New York injury attorney to sue the person responsible.

The author made sure to name each of the deceased, provided two separate links back to the list of lawyers that pay FindLaw, and included a call-to-action. (If you have suffered a personal injury…blah, blah, blah.) There is, of course, no natural audience for such a “blog.” The postings do not allow for comments, nor is there any attempt at creativity or analysis.

An example of how FindLaw prostitutes itself to the alter of Google — FindLaw’s prior reputation and quality writing in its Writ commentary be damned — is in the “about” section. They place 97 words in two sentences of which a remarkable 37 are keywords, to come up with this contorted piece of SEO “writing”:

The New York Personal Injury Law Blog covers news and developments in the area of personal injury and tort law in New York state, and New York City specifically, and helps to connect people with New York injury lawyers. The New York Personal Injury Law Blog is intended to serve as a resource for people working through a personal injury issue in New York, or those who are interested in New York personal injury and tort law generally, including New York personal injury attorneys who wish to keep up with the latest news developments.

[Note: I wrote about the problem of keyword clutter previously in I Hate My Website.]

As Scott Greenfield puts it at FindLaw Plays Dirty (where he warns others of FindLaw stealing their well-known blog names):

These aren’t blogs, of course, in the sense that we understand them. There are mere names designed to trade in on search engine keywords, and capitalize on Findlaw’s SEO ability to get their scam blogs higher than yours on the search engine’s first page.

And as Sheryl Sisk puts it in Findlaw vs. NY Personal Injury Law Blog: The Opening Salvo:

Let’s be clear. This isn’t a case of innocently or mistakenly adopting a geocentric keyword-rich blog name. Findlaw’s not staffed by idiots. They knew what they were doing.

What are the consequences of FindLaw‘s folly in creating such sites? 1) it demeans the lawyers that paid them for listings, who are now associated with the scat-blog; 2) it diminishes the work of the professor-commentators at Writ that they currently use; and 3) it brings down the legal profession as a whole by legitimizing such conduct. Let’s take these one at a time:

First, it demeans the people that hired this once-prominent company to market for them. Marc Randazza, on seeing Findlaw’s mierda-blogs, wrote in Findlaw, are you really that douchetastic?:

They hired a milquetoast writer to author a milquetoast blawg for the sole purpose of selling ad space to sh*tty lawyers who can’t develop a reputation on their own.

Ouch. Now I happen to personally know some of those lawyers on the FindLaw list, and know that they are fine lawyers. I’m sure they had no idea that FindLaw would associate garbage with their names when they hired the company as their agents.

But you know what? Others don’t know that. And by creating a turd-blog and associating it with those lawyers, potential clients will come to the exact same conclusion as Randazza. And they will believe that those otherwise reputable lawyers agreed to be part of this ugliness.

And Randazza has more (he always does):

Here’s a rule of thumb… if a blog post ends with “for more information, contact the lawyers at Douchestein and Dickwadbaum,” then it is an advertisement, but, it isn’t advertising the lawyer’s services. It is advertising that lawyer’s stupidity, desperateness, and cluelessness. I would advise any potential client who sees a “blog” that ends its posts that way to turn around, run away, fast as you can, and do not look over your shoulder.

To the lawyers that paid money to FindLaw: You’ve just been sucker-punched. You outsourced your marketing to FindLaw and this is what they created for people to find you. Worse still, some of FindLaw‘s posts may qualify as electronic ambulance chasing. We’re talking serious ethical issues here with e-chasing, and I wonder who the lucky lawyer will be that becomes the test case. When you outsource your marketing you outsource your ethics.

Second in line to get clobbered are the professor-commentators on its roster, such as Anthony Sebok, Marci Hamilton, Michael Dorf, Carl Tobias, Sherry Colb, Joanna Grossman, Neil Buchanan, and Julie Hilden, to name a few.

All of their work on FindLaw‘s Writ has now been instantly devalued and diminished by being associated with the BS-blogs that FindLaw created. Once upon a time it was a feather in the cap to be published by West’s FindLaw. Not any more. Do they care?

The professor-commentators now stand side-by-side with Emily Grube — the author who appears at several of the sites despite the fact they vary both by practice area and jurisdiction– whose bio says she is a “writing specialist” with “experience correcting papers created by freshmen to graduate students.”

Perhaps it’s understandable that FindLaw couldn’t hire more lawyers to write about the law, given this tight job market with firms now at capacity, actively recruiting and unemployed attorneys so difficult to find. It’s not required that a law blogger be a lawyer of course, as Walter Olson of Overlawyered and Point of Law demonstrates, but it just makes it a lot easier to recognize and discuss relevant legal issues.

It’s worth noting that many others stood up and took notice of FindLaw’s ugly conduct — during a holiday week, no less — including: FloridaLegal, Molly McDonough (ABAJournal), BlawgWhisperer (ABAJournal), Ron Coleman, Kevin O’Keefe, Nicole Black, Don Cruse; Lawrence Koplow; Tim Hughes; Copeland Casati; Ryan Daniels; Lydia Bednerik; Kevin Underhill; Gerry Oginiski; A Reasonable Suspicion; and Roy Mura. Some of those folks, also happen to have prominent blogs that FindLaw might rip-off next.

Lastly, and perhaps most importantly for the legal profession as a whole, FindLaw may have taken a smallish problem with a haphazard smattering of phony “blogs” that have popped up over the years, and given them (and newcomers) cover to act in the same unprofessional manner. Instead of raising the bar of discourse for lawyers they have lowered it. For if one of the pre-eminent names in the legal field thinks it’s OK to create a farkakte-blog (and you may have to hit that link unless you know a smattering of Yiddish), what message does that send to other lawyers? To the public? Is FindLaw now so desperate for business, so fearful of Martindale-Hubbell, Avvo and Google Scholar, that they are willing to race down to the muck and tarnish us all?

Greenfield wrote that:

For those of you who have placed their reputation in Findlaw’s hands, be prepared to be tainted by the company you keep.

But I think it is actually worse than that. While such dirt-blogs were previously confined to desperate lawyers here and there, FindLaw now opens the floodgates sewergates for lawyers to create slime for the web, for if it’s good enough for the once-vaunted Thomson West, it’s good enough for them.

Now if I could only find a good word to describe FindLaw’s number-two-blogs and their ilk. I know there’s a good one out there someplace. When others find that word, I’m sure it will hit the fan.

 

January 3rd, 2010

Lead Paint and Constructive Notice to Landlords


An interesting decision came out of the Appellate Division, Third Department on December 31st with respect to lead paint cases, that sharply clarifies some of the issues needed to bring such a case.

Before getting to the case, a little background: Lead paint cases are, generally speaking, brought by the parents of infants that have ingested cracked and peeling lead paint, and seek to hold the landlords responsible for the injuries (which are often neurologic in nature, including learning disabilities). The paint is a relic from pre-1978 days (when it was banned in residences due to its poisonous nature) and, in addition to being eaten by small kids, can also fill the air with lead dust during renovation. Lead in toys from China has been a hot bead of problems over the last year, for just this reason.

In Charette v Santspree, the appellate court dealt with the level of notice that a landlord had to have to be held accountable for the poisoning. But in this case, despite the lack of any complaints, the court held that the landlord had constructive notice of the condition. That is, they should have known about the cracked and peeling paint.

In proving constructive notice, the plaintiff needs to show five things: That the landlord
(1) retained a right of entry to the premises and assumed a duty to make repairs;
(2) knew that the apartment was constructed at a time before lead-based interior paint was banned;
(3) was aware that paint was peeling on the premises;
(4) knew of the hazards of lead-based paint to young children; and
(5) knew that a young child lived in the apartment.

Since there was evidence of all five elements here, the court refused the defendants’ request to toss the case out on summary judgment.

But in an interesting turn, the court acknowldged that the defendants had the winning argument regarding lack of knowledge for the private areas of the apartment building (which had six tenants). But the defendants lost because there was substantial evidence of the paint peeling in the common areas. And defendants would have seen those common areas when coming on a monthly basis to collect the rent. That would have given the landlords either actual, or constructive, notice of the evident peeling paint in those areas.

Given that the plaintiff “observed paint chipping and peeling from the walls in the common areas of the building not long after she took possession of the second floor apartment and that these conditions continued to exist throughout her tenancy,” both the recent and past owners of the building had summary judgment denied.

All in all, the case represents a nice review of the issues of notice regarding lead paint cases, and a bit of a road map on how to proceed and the available theories that exist.