December 10th, 2009

NY Doctor and Lawyer Sanctioned For Suing Opposing Expert-Physician

A doctor that has thrice been sued for medical malpractice, with the same expert coming in against him all three times, got fed up and sued the opposing expert, claiming fraud. For his troubles in the unusual suit, both he and his attorney have been socked with sanctions by a New York judge.

The decision by Justice Marcy Friedman in Cattani v. Marfuggi, filed last week in New York County Supreme Court (our trial level court), ripped both Dr. Robert Cattani and his counsel Richard Paul Stone, for bringing an action she deemed frivolous. Because of an “overwhelming body of case law, reiterated repeatedly by the appellate courts of this state,” against such suits, Justice Friedman sanctioned both lawyer and doctor $1,000, and has scheduled a hearing for them to come back to determine reasonable legal fees to be paid.

Judge Friedman reiterated the long-held position that “statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.”

During the pendency of the action, Justice Friedman said that she took Mr. Stone aside in chambers and warned him of the potential for sanctions if he didn’t drop a suit that could not be maintained, but that Stone informed the court his client wanted to go forward.

The standard for frivolous conduct is well known here, and is set forth in our rules of court (22 NYCRR 6 130-1.1[a]). Conduct is frivolous if it “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.”

Lesson to be learned: Learn to say no to potential clients with crazy claims. There is nothing to be gained by bringing frivolous suits, and much to be lost. A successful law practice isn’t made simply by hoping you might win the case, but by learning which cases not to take.

 

December 8th, 2009

Tiger Woods: One Man Bar Exam

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.  Your familiarity with the facts is presumed. But since those facts are likely to change within minutes —  since the one thing the media loves more than creating heroes is destroying them, and any story will do for Tiger at the moment —  the current state of affairs is the media claiming extra-marital affairs with 6-10 women. That number changes depending on who is keeping the scorecard, but you can bet they’re all are hoping for a round of 18.

The list below is long on the criminal, matrimonial/custody and contract areas of the law, but I also see a smattering of First Amendment, intellectual property, sports and ethics.

Without further ado, and assuming many rumors as true, when some likely aren’t:

  • Domestic violence possibility;
  • Drug / alcohol related driving accident;
  • Right to silence in discussion with police (see: Tainting Tiger @ Simple Justice);
  • Drug addiction (can be an issue both for endorsements and potentially for playing golf with drugs in his system — I’m just issue spotting, I don’t know what golf’s drug rules are):
  • HIPAA violations for whoever disclosed he had overdose written on his chart when he went to the hospital after the accident;
  • Divorce;
  • Validity of pre-nuptial agreement (as well as disposition of real/personal property) given the unexpected conduct of Woods;
  • Custody of two children;
  • Custody of children if wife hauls the kids to Sweden (treaties?);
  • Taxation – While divorce settlements aren’t generally taxable,  what if a confidentiality agreement is attached to it? That  happened in Amos v. Commissioner with a personal injury claim against Dennis Rodman. (And is Woods going to re-invent himself as golf’s Dennis Rodman?);
  • Ethics, regarding lawfirms that may have leaked details of pre-nuptial agreement and/or discussions regarding modification;
  • Tiger purchasing the exclusive rights to the stories of women he has been with (a/k/a buying silence, see: JDJournal):
  • For Tiger’s Harem you can add contracts to sell stories to others, intellectual property rights regarding those stories (and photos) and the books/movies that are no doubt already being devised; and
  • Can I trademark One Man Bar Exam? And how do I put that little TM thingie in?

While Hollywood is no doubt ramping up for Tiger Woods: The Movie, I’m busy wondering about Tiger Woods: The Bar Exam.

This man could single handedly stop the bleeding of jobs from the legal sector and at the same time give law profs and bar examiners plenty to work with.

OK, so without making any jokes about his putter, or about Tiger’s Wood, what legal issues have I missed?

(Photoshopped image of “Tiger Rodman” by Dan Turkewitz)

Links to this post:

Tiger Woods and Exams?!
Have you heard enough about Tiger Woods? Well, maybe you should keep listening. Eric Turkewitz of the New York Personal Injury Law Blog writes that Tiger Woods is a “One Man Bar Exam” because of the breadth of his legal difficulty. …
posted by Jenny Rempel @ December 10, 2009 10:44 AM

 

December 4th, 2009

ABA Blawg 100…And the rise of the personal injury law blogs

I’ve been chosen by the ABA Journal for the second year in a row as part of its Blawg 100, the 100 best law blogs as decided by their editorial staff. That’s nice. I’m deeply flattered to be in such company. They’ve placed me in the “Geo” category if you are inclined to vote in these types of things. And it would be nice if you were so inclined.

But two other things about the list are worth noting: Its metamorphosis over the course of its three-year run with respect to personal injury blogs, and the fact that inclusion (or exclusion) isn’t something to brag about too much.

First, let’s look at the changes from Year 1. In the 2007 inaugural issue there were no personal injury blogs — none, nada, zippo — a subject that I wrote about and caught the attention of others (ABA Blawg 100 Gets The Conversation Going). Many niches were excluded. At that time I noted several worthy personal injury blogs:

It’s not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don’t have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn’t think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

In Year 2, 50 of the initial selections were replaced, and there were now two personal injury related blogs, this one and Drug and Device Law.  Nice to be included and nice to see that this substantial area of law was no longer being ignored by the ABA.

And now this year there are six, count ’em six, different law blogs that are related to the personal injury field. In addition to mine, the ABA has selected:

Addendum: And if you include the Namby Pamby Attorney’s comic rants, there are seven.

(If you go back and look at my 2007 post on the subject, by the way, you will see that D&D, Marler, and Schaeffer are all on my list of who should be included. The PopTort and Hochfelder blogs didn’t yet exist.)

So six out of 100 is pretty fair representation. Well done, ABA Journal.

But…there were many notable blogs that aren’t on the list. Just perusing my blog roll, for instance, Overlawyered and Lowering the Bar really jump out at me. What happened?

I have to assume that cutting the list to 100 is a pretty tough job — they want both big and small, profs and practitioners, regional and national, quirky and serious — and that part of the problem is trying to put blogs into categories. I’m in the “Geo” category, for instance, and that befits the name of this tiny corner of the web, despite the fact I go elsewhere often. I stretch that definition often to include attorney marketing, judiciary issues, ethics, and related subjects.

So here is what I think the ABA did to solve the problem. They narrowed the list of 2,000 – 3,000 law blogs down to about 150-200. Then they printed out the names of each one on a piece of paper, removed Above the Law and Volokh to make sure they made the cut, and chucked the rest at a staircase. Those that landed on the top stairs were stuffed into the ABA categories.

Now one last item, if I still have your attention. Voting. Its worth noting that when you go to vote in this beauty pageant, you can vote for all the PI blogs, even if we are in the same category. You get 10 votes, and you can spread them out any way you wish. So I say vote for all the PI blogs.

Last year I came in second in the regional category to the China Law Blog, which really isn’t fair given the relative populations of New York and China. Also, Dan Harris over at China Law Blog was begging for votes like there was no tomorrow, and is doing the same thing today at his blog and repeatedly on Twitter.  I won’t beg, the way he does. I’ll just give you a picture of my chief supporter, Paris Hilton. Now really, is it any contest as to who you would vote for?

Links to this post:

December 7 roundup
Woman jailed for “camcordering” after recording four minutes of sister’s birthday party in movie theater [BoingBoing]; Senate hearing airs trial lawyer gripes against Iqbal [Jackson and earlier, PoL, Wajert, Beck & Herrmann (scroll)] …
posted by Walter Olson @ December 07, 2009 9:56 AM

 

December 3rd, 2009

Martindale-Hubbell Q&A On Spam Campaign; Promises Full Accounting; Will Attempt to Notify All Victims

Martindale-Hubbell, the 140 year old attorney directory company, has responded to questions raised after it’s agent was caught sending spam to law blogs. Among its promises are a full public accounting for the incident(s) and an attempt to notify all of the law blogs that were defaced by its spammer.

Earlier this week I noted that MH was spamming my blog. MH subsequently acknowledged that they outsourced marketing to another company that spammed blogs, and also offered to answer questions about the incident.

The questions/answers below were too long for comments, and are presented here. Responses comes from Derek Benton, Director of International Operations at Martindale Hubbell International:


ET:     If MH claims to be a leader in social media, why is it outsourcing the social media to others?

DB: In this case we were outsourcing our SEO to an agency, just as we outsource plenty of other Web pieces. The team in the UK (MHI) recently changed to a new CMS [ed: content management system] and as a result we saw a drop off in traffic to our co.uk. site.  To quickly address the issue, we hired an agency in late September to help bring our traffic back up to pre-CMS deployment numbers.  We didn’t have the bandwidth on our team to do it ourselves. We hired the agency with the understanding that we would approve everything and that has not been the case.  The agency’s understanding was different.  We are now discussing why there was a miscommunication. All SEO work with this vendor has been halted whilst we investigate.

ET:  After MH outsourced to Gilroy’s company, did Gilroy outsource it elsewhere?

DB:  Yes he did.  Outsourcing is a common practice to help reduce labour costs.

ET:  Will MH make the results of its internal investigation public, so that others can learn from it?

DB:  Absolutely. We’d be happy to have somebody do a guest blog post on the matter here if you’d like?

ET:  Will MH identify the blogs that were defaced by Gilroy’s company? Because they have that information for you. (Gilroy’s site includes this feature: “We offer the following link building submission service … if you want it, we’ll give you a screenshot for each submission. This way you will know the job has been done really well.”

DB:  I can’t answer this on behalf of another company, but will try to find out. The quote and link you used above actually relates to their directory submission service, so I don’t know whether the screenshot applies in this instance.

ET:  Will MH follow-up with each of the blogs that were defaced?

DB:  Per the above, if we can identify them, absolutely.

ET:  I note on your blog that MH is holding a webinar on social media, which is “a series of online events bringing together some of the legal profession’s top social media evangelists to share their knowledge and tips on the practical uses of social media.” (Irony noted.) Will you be using this experience as a teaching moment?

DB: We’ve certainly learned from the experience, yes.  That said, our webinar series is more about bringing experts together to discuss key issues than it is about us (MH) broadcasting our opinions. We’re not for a minute defending spamming, nor have we ever done so, I’m not sure whether there’s a teaching moment in there.  Don’t spam is about the extent of it.

Links to this post:

December 11 roundup  
Key Obama regulatory appointees at NHTSA (auto safety) and FTC [commerce, antitrust] used to work for AAJ, the trial lawyers’ lobby [Wood, PoL]; “Adventures in Lawyer Advertising: Muscle, Talent, Results, and Terrible Acting” [Above the …

posted by Walter Olson @ December 11, 2009 12:11 AM
 
Flip Side of the Spam Scam  
Scammer/Spammers are nothing if not agile. And so, while Eric the Turk at New York Personal Injury Blog pursues the scandalous Martindale-Hubbell Spammer-Palooza, fellow New York blawger Andrew Bluestone at New York Attorney Malpractice …
posted by SHG @ December 04, 2009 10:36 AM

 

December 3rd, 2009

Comment Glitch — Have you had trouble?

In the last 24 hours two people indicated they’ve had trouble posting comments on my blog.

It appears that Blogger has been having problems with comments.

So if your comment didn’t appear, please try to re-post.

From Blogger on their Known Issues page:

Some users are reporting errors when attempting to moderate comments on their blog. We’re investigating this issue and will update this post when we have more info to share.


Thanks for your patience. – LATEST UPDATE ON WEDNESDAY, DECEMBER 02, 2009