December 28th, 2009

NY Labor Law: What Is an "Elevation Related Injury"?

The Second Circuit Court of Appeals needed to know what, exactly, an “elevation related injury” was and sent the question to New York’s high court for interpretation.

The issue in Runner v. New York Stock Exchange arose when workers were asked to lower an 800 pound reel of wire down four stairs. This was attempted by attaching a rope to the giant spool and wrapping it around a metal bar set against a door jam. The rope was then held by the plaintiff and another to act as a counterweight as the giant reel was lowered.

Want to guess what happened? The plaintiff was drawn into the bar by the huge weight and injured.

Enter here, New York’s Labor Law section 240(1) (also known as the Scaffold Law) which holds contractors and owners 100% liable to workers from gravity related injuries when proper safety devices are not made available to them. These suits usually arise from people falling from heights or an object falling from a height and hitting the worker. But in this case, the worker didn’t fall, and nothing fell on him. Rather, the item he was trying to lower fell at an uncontrolled rate.

The federal jury dumped the plaintiff, after being instructed that that “liability pursuant to Labor Law 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk.” They found that this was not a gravity related risk.

The District Court disagreed, and tossed the verdict. The defendants appealed and the Second Circuit wasn’t clear on the answer, and therefore certified these two questions to New York’s Court of Appeals:

I. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiff’s hand, is the injury (a) an elevation related injury, and (b) directly caused by the effects of gravity, such that section 240 (1) of New York’s Labor Law applies?

II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240 (1) of New York’s Labor Law?

New York’s Court of Appeals answered the first question 10 days ago with a “yes,” and re-cast the actual issue:

The relevant inquiry — one which may be answered in the affirmative even in situations where the object does not fall on the worker — is rather whether the harm flows directly from the application of the force of gravity to the object.

While the defense argued that 4 stairs made the elevation de minimis, the court said otherwise “given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.”

This also rendered the second question — of whether the injury must come from either a falling worker or falling object — moot.

Why is the issue important? (You didn’t think I would simply digest the case, did you?) New York’s Labor Law holds many contractors and owners strictly responsible for injuries when they don’t provide proper safety devices in such circumstances. There are, of course, exceptions to the rule such as recalcitrant workers and times when the worker was the sole proximate cause for the accident, as well as for owners of smaller dwellings. (See Blake v.Neighborhood Housing Services of NYC, which has a history of the law.)

But as a result of the laws, New York has a rather safe construction trade relative to other states. Because so much of the onus is placed on the contractors and owners, the Labor Law is under constant assault from big business. Safety, however, must come first in construction. Particularly since so many of the workers are immigrants or others similarly situated that aren’t in position to demand safety equipment, or to produce the witnesses after an accident. Co-workers, oddly enough, tend to see things in the light most favorable to their job security when their own jobs may be on the line.

Thus, the need for the strict Labor Laws, and the need for the courts to interpret them fairly. In recent years, decisions from our top court seem to have been more defense oriented, as you can see from this article from the Wilson Elser firm, which does defense work.

In this case, however, the NY Court of Appeals seems to have reversed that trend of limiting the scope of the Labor Law protections. And that is good news for those that care about worker protections.

Other takes on the case:

  • Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange (Kreppein @ Dissent of Man)
  • New York Court of Appeals Finds Gap in Labor Law Case Law To Justify Recent Holding (Lerner @ New York Civil Law)

 

December 23rd, 2009

FindLaw — How Low Can They Go? (Stealing Blog Names)


I thought I was done blogging for the week, but I just learned that FindLaw, another one of those “venerable” names in the legal biz, has swiped my blog name. I kid you not.

They’ve created The New York Personal Injury Law Blog (all links here coded as “NoFollow”). The person that allegedly writes it, “Emily Grube,” doesn’t even show up in the New York directory of attorneys when I checked. She also writes the Philadelphia Personal Injury Law Blog, The New York Criminal Law Blog, and who knows how many others that are in start-up phase.

And, surprise, surprise, when you read the “articles” that are written they have a link at the bottom with the “call to action” to contact one of the lawyers that pay FindLaw to promote and advertise for them. As it happens, I know many of those on that list, and some are friends of mine. And you can bet your last dollar that I will let them know what FindLaw is up to, and they can decide for themselves if this is the type of conduct that they approve of.

How pathetic is FindLaw, anyway? Last year they were busted for selling links on their editorial content. Two weeks ago Scott Greenfield danced all over them for using the names of local criminal defense attorneys in their spammy solicitation to him.

Of course, one may try to say that my blog name is merely descriptive. But after three years of blogging and, I think, a fair amount of recognition across the legal blogosphere, it has taken on a distinctiveness all its own. I thought about sending them a note to alert them of my site. But then I realized that if they didn’t already know about my site, then they were really just too pathetic to believe. I mean, what lawyer would start up a blog without checking to see if the name was being used?

Find Law, which is owned by Thomson West, is an agent for the attorneys that pay them money for promotion. I suspect that these good folks just assumed that Find Law would act in ethical, proper ways and not try to sell links or steal blog names. But this is what their agent has been up to. Do law firms really want to be associated with a company that acts in such a swarmy way?

FindLaw, I’d like you to meet Martindale-Hubbell, both of whom seem not-too-far removed from LegalX and a bazillion other sites hustling their way across the web without seeming to care about their reputations.

They’ve ripped off my name now. Is yours next?

(Hat tip to John Hochefelder who found the “blog” and let me know)

Links to this post:

Call this “Notice”  
Mitchell Sassower is doing it. Marc J. Chase is doing it. Myron Kahn is doing it. Many others are doing it too, but those three are at the top of the list. What are they doing? They’re funding FindLaw’s crappy little rip-off (all above …

posted by Mark Bennett @ January 06, 2010 2:50 PM
 
Due Diligence in Naming Your New Blog  
Findlaw vs. NY Personal Injury Law Blog: The Opening Salvo. Interrupting our Headway vs. Thesis Cage Match for just a moment, I wanted to share some thoughts prompted by the following tweet from BlawgWhisperer, the ABA Journal’s web …
posted by Sheryl @ December 27, 2009 10:56 AM

 

December 22nd, 2009

The Year in Review (2009)

Today I take a look back at some of my favorite posts of 2009. In doing so, I’d also like to thank a few sites for the many readers they sent my way. These include Above the Law, Overlawyered, Law.com, and Simple Justice. There were many, many others, of course, but these sites were not only a generous source of inbound links, but between them represent a remarkable diversity of focus.

Generally speaking, posts that were more national in scope drew more readers. It is hardly surprising that my more New Yorkcentric posts didn’t make the cut, and you’ll see that reflected in the list below.

Below is smattering of favorites, based partly on page views, and partly on personal whim:

New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified (1/22/09):

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster…

Twitter and the Age of Information Overload (1/25/09):

The internet and the burgeoning social networks that it has spawned have made it possible to acquire information in ways that our parents never envisioned. Information now pours over the transom in an unprecedented deluge, being pushed and pulled in myriad ways.

But at some point I need to stem this tide…

Buffalo Plane Crash WILL Test New York’s New Anti-Solicitation Rules (2/13/09)

When I wrote three weeks ago about the possibility of the Hudson River splash landing testing New York’s 30-day anti-solicitation rules for attorneys, I did it with a question mark and with one eye firmly on the fact that it ended very well for the people on board the plane. It even ended well for the bar, as I found only one firm that appeared to violate the ethics rule. It also led me to explore, while the Second Circuit considered the issues of New York’s new rules, the myriad ways that ethics laundering can take place with lawyers hiring attorney search services to solicit, or running “articles” on their web sites about the crash.

I didn’t expect to write again so soon on the subject, but today’s horror in Buffalo with Colgan Air / Continental Flight 3407 crashing and killing 50 people will bring the subject of attorney ethics and the 30-day anti-solicitation rule right back to the forefront…

Do Attorney Anti-Solicitation Rules Work? (A Brief Analysis of Three Disasters) (2/26/09):

The ads are gone. All of them. In the wake of the crash of Continental 3407 near Buffalo I tracked seven different law firms using Google Adwords to advertise for victims, and every ad has now disappeared. …

So here is a quick and dirty analysis as to whether or not attorney anti-solicitation rules were the reason, based on three recent disasters…

New York’s No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?) (3/5/09):

New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports…

The Cross-Examination of Jim Cramer (3/13/09)

Around the country, Jon Stewart is winning plaudits for his devastating debate with Jim Cramer on The Daily Show, after a week of ripping CNBC up, down and sideways for their utter failure to see the Great Recession coming on, while claiming to be the experts of the financial world. Stewart is winning those plaudits (and perhaps an Emmy?) not just for the interview, but for a week-long skewering of financial talking heads who pretend to know the future of the markets.

But what I saw was not just good journalism — with the fake journalist giving a crushing lesson to the media on how it is supposed to done — but a devastating cross-examination…

As Seen on Oprah! (Kinda, Sorta, Almost) (3/17/09)

Oprah is big. I know this because my media maven wife tells me so. She has, like, a jillion fans and even more money. I’ve never actually seen her strut her stuff on her show, but a jillion fans (and even more money) can’t really be wrong, can they?

So I was flattered when Harpo Productions, Oprah’s production company, contacted me. It seems that one of her regular segments is with a Dr. Mehmet Oz, and he wanted to do a piece on medical mistakes.

So enter stage right, me…

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) (4/21/09)

(Amtrak – northbound, April 18) Every adventure starts with a journey. As I leave my wife and kids behind I experience that rarest of moments — leaving town by myself when it isn’t for business. As the steel wheels rumble underneath me heading north toward Boston, I slip on the iPod and tune in Arlo…

Susan Boyle’s Voice, and the Lessons for Trial Attorneys (4/22/09)

If you haven’t heard of unemployed, 47-year old Susan Boyle taking the stage in a British talent shows and blowing the doors off the joint by now, you’ve probably been living under a rock. The expectations were as low as can be for the rather plain (some say homely) looking woman who, it turns out, had the voice of an angel.

And there is the lesson for trial lawyers…

Gloria Allred v. OctoMom (What’s a “Celebrity Lawyer?”) (5/4/09)

Now I understand what a matrimonial lawyer is. And I know what an entertainment lawyer is. And certainly what a personal injury lawyer is.

But what the hell is a “Celebrity Lawyer?” Do all celebrities have the same issues? Think about it. Criminal defense. Real estate. Securities. Immigration. Corporate work for those that have their own productions companies. Child welfare if you’re Britney Spears. Adoption if you’re Madonna…

The SCOTUS Nominee and the Tissue Box Test (5/12/09):

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests…

I Hate My Website (5/26/09):

It isn’t the style or functionality of my website that I hate, it’s my writing. The site is my firm’s electronic brochure and it’s designed so that folks in need of a personal injury attorney can find it and consider retaining my firm. But creating such a website is a real problem because of three conflicting concepts…

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? (6/4/09)

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor’s position and her associate’s position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it Sotomayor & Associates?

Did she have any associates when she was advertising herself in that manner?

Michael Jackson: The Mother of All Malpractice Suits? (6/26/09):

With Michael Jackson’s sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

NYT: “Sotomayor & Associates” Becomes an Issue For Nominee and White House (7/7/09)

On June 4th Sonia Sotomayor released an extensive, completed questionnaire about her past to the Senate, and I picked up on the fact that her solo law firm “Sotomayor & Associates” didn’t have any actual associates. This raised an ethical issue, albeit a small one, because it was misleading to the public. The private firm overlapped both her time in the District Attorney’s office and her time with her next gig, Pavia & Harcourt.

And there my little post sat, relatively ignored. Until the Washington Times picked up on it in an editorial on June 20th. While I don’t agree with their premise that it was indicative of larger issues, it was nice that they at least gave attribution to me for finding the item.

And now today the ethical issue of “Sotomayor & Associates” lands in the New York Times...

“Sotomayor & Associates” Under Senate Investigation ( A preview of 6 potential issues) (7/9/09)

I was called yesterday by a member of the Senate Judiciary Committee’s minority’s legal staff regarding my postings on “Sotomayor & Associates” and potential ethics issues, and the subsequent New York Times article regarding the firm.

It probably comes as no surprise that Judge Sonia Sotomayor’s small, solo practice is being investigated. The committee is not, after all, a potted plant. And this little law firm that Judge Sotomayor ran out of her Brooklyn home from 1983-1986 was unknown to the world until she submitted answers to an extensive questionnaire on June 4th.

What follows are the five issues that I believe they are exploring, based upon my conversation (plus one more from TaxProf)…

10 Tips for Laid Off Lawyers (8/19/09)

It may be a long time before the legal field recovers from the massive layoffs from this past year. Some folks could be out of work longer than imagined, and it appears that some may need a bit of help on what to do. As you can see from this utterly miserable description of life as a cast-off lawyer coding documents in the basement of BigLaw firms for $28/hr. (via ATL), there are some people with big time degrees that are trapped into thinking that BigLaw is all the law that exists.

‘Taint so.

So, without further ado, here are 10 tips for lawyers without a job, from a guy who started from scratch…

Medical Malpractice (So You Think You Know What It Is?) (9/11/09)

So you think you know what medical malpractice is? Well, last week a panel of appellate judges in New York split on the subject in Friedman v. New York Hospital-Cornell Medical Center…

I’m a Super Lawyer! (Now What?) (10/8/09)

A relative told me something that I already knew: That I had been selected as a personal injury Super Lawyer. They knew because it had been published by the New York Times.

Yeah, well, kinda sorta. But not really. Super Lawyers is a supplement to the magazine; an advertising supplement. You don’t have to pay to be listed, you only pay if you want your name displayed prominently in a large box or page with a story about you that looks like news. Sort of an advertisement within the advertisement. I think the marketers call it an advertorial. I declined their offer to pony up big bucks for such an honor many months ago.

But now comes the other issue: What, exactly, do I do with this “honor”? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? A mockery of a pseudo-faux award? A mockery of a sham of….

Blawg Review #236 (The Bogeyman Cometh) (11/2/9):

The Bogeyman was pissed. And when The Bogeyman gets pissed, it’s probably wise to listen.

“Law bloggers are trying to steal my thunder,” he hissed, “It used to be that I had dibs on scaring the bejesus out of people. Now only 40% believe that my coterie of demons inhabits this earth. And I blame the lawyers. What are you guys trying to do to me?”…

New Spam Comment Policy for Law Firms (You Will Be Exposed) (11/5/09)

I’m getting tired of seeing spam in the comment area of my blog that comes from law firms and attorney search services. So if it comes in again I’m going to write a fresh post about them. I’ve done this a couple of times before but now I’m going to make a policy of it…

Outsourcing Marketing = Outsourcing Ethics (5 Problems With Outsourcing Attorney Marketing) (11/16/09)

Five months back there was a Metro train crash in Washington DC, and I watched from a distance to see who/how/where/when the web would be used by lawyers to find victims. And one of the things we saw was that one of the gazillion attorney search firms that infect the web was soliciting clients. Given that these search firms are agents of the lawyers, that raised the problem of attorneys using the web to solicit.

Thus was born this little formula in June: outsourcing marketing = outsourcing ethics….

Martindale–Hubbell Apologizes For Blog Spam; Suspends Spammer; Promises to Answer Questions (12/1/09)

Martindale–Hubbell has apologized for blog spam left on my site, using the comments area of my prior post for that purpose. MH has also agreed to publicly answer questions about the incident…

Tiger Woods: One Man Bar Exam (12/8/09)

Tiger Woods is providing a feast of legal issues as he swiftly morphs from choir boy to bad boy. And in the process he opens up a veritable bar exam full of questions.

Since at least half of lawyering is first identifying the potential problems, let’s take a peak inside the cans of worms he opened…

 

December 22nd, 2009

Accidents Direct Is Spamming Me


Apparently, yet another one of the many accident attorney search companies failed to get the memo: If you drop comment spam in my blog I will give you more than you bargained for. Reading the “Notice to Spammers” in the sidebar would have been helpful.

So Accidents Direct, a company I never previously heard of, appears to think it would be nice to come over to my little piece of property here and put graffiti on my house.

Notice to those lawyers that are thinking of hiring Accidents Direct: If you outsource your marketing to this outfit, then you run the risk of outsourcing your ethics to a spammer. That is probably not what you want to do.

Oddly enough, this is a U.K. company, so they also appear to be wasting money by trying to trash my site.

But perhaps the worst part is that the spammer, who identifies herself as “Catherina,” elected to insult me in the process, starting her spam with this:

your blog is awesome and informative. Our service is also similar, I hope it will be useful to your visitors too….

Gives me shudders.

If enough people out the spammers, whose conduct further hurts the reputations of attorneys, then fewer people/companies will spam.

 

December 20th, 2009

When Is A Settlement Not A Settlement?

There was an extraordinary decision late last week out of the Second Department that I was getting ready to blog, but John Hochfelder beat me to the punch.

Short version: At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.

Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.

This exchange ensued in open court between plaintiff’s counsel and the judge:

Mr. Jordan: Could I put my request on the record?
The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
Mr. Jordan: Why can’t we put the agreement to settle the case for $150,000 on the record?
The Court: Because I said what I have to say. Let’s proceed

The jury came back with a $1.45M verdict. The judge then proceeds to toss out the verdict and asserts that the settlement — the one defense counsel refused to confirm and she refused to put on the record — controlled.

What do you think the appellate court did?

You can read the decision in Diarassouba v Urban or go to Hochfelder’s site for his analysis of the case.