August 21st, 2009

Linkworthy (Updated!)

Oprah sues over 50 companies and people for falsely claiming she endorsed various products. But I’m not one of them, and my experience with Oprah’s lawyers may be one reason why;

A Swedish newspaper claims that Israelis are kidnapping Palestinians and harvesting their organs. Really. They said that. David Bernstein at Volokh covers the latest version of blood libel;

Scott Greenfield has been wondering why law profs such as Dan Solove at Concurring Opinions tend to ignore the law blogs of practicing attorneys. And Greenfield isn’t exactly subtle about it;

Research by Bonnie Shucha in Wisconsin identifies the top 5 ways that legal malpractice occurs. Can you guess the top one before looking? (via Bluestone)

A rare case of a pharmacist going to jail over a botched prescription;

I love these stories: Tort “reform” advocate Fred Hiestand, general counsel of the Civil Justice Association of California, decides to bring a class action suit because his car was towed. All of a sudden, when he’s the victim, class actions become a good idea. What a surprise. You can read about more tort reform hypocrites at the bottom of this Texas tort “reform” piece I wrote in April;

Roy Mura tackles an interesting question that pops up every so often, suits between family members. So, can an unemancipated child be held legally responsible to a parent for crashing mom’s car into the garage?

New York’s Central Park, perhaps the greatest urban park on the planet, was devastated in a freak storm, losing 500 trees;

Model Liskula Cohen won her court battle to learn the identity of a now shuttered website called Skanks in NYC where she’d apparently been slimed as “a psychotic, lying, whoring . . . skank,” among other charming things. The author of the site, now revealed to the world, is Rosemary Port, and she responded with this gem as per today’s New York Post: “I’m shocked that my right to privacy has been tampered with.” Two lessons here: Don’t write anything, even under cover of anonymity, that you are afraid to see in the local newspaper (see Flea). And don’t pretend to be the victim if you are the villain. You only make matters worse.

And the Seattle Trademark Lawyer hosts Blawg Review #225 from an unlikely spot: The Pikes Place Market in, where else, Seattle.

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TortsProf with the Personal Injury Law round -up; and with a call to New York practitioners if they would like to submit for publication in the Pace Law Review;

John Hochefelder has been guest blogging at Point of Law. (A PI guy guest blogging at ground zero for tort “reform?” Who’d a thunk it? Walter Olson, that’s who’d a thunk it.) Hochfelder has this piece on baseball and assumption of risk;

Andrew Sullivan on Tort Reform Won’t Fix Healthcare; (related stories from my joint can be found by clicking this tort reform link); More at the Washington Independent and Lexington Heraald-Leader;

New York Gov. David Paterson plays the race card, saying New Yorkers don’t like him because he’s black;

And Sarah Palin tries to jump into the medical malpractice fray and gets destroyed by the Pop Tort.

Links to this post:

stem client roundup for august ’09
summer was no reason for stem clients to slow down. here’s a quick list of what they were up to in the month of august: in his second post about legal in-sourcing, mcclanahan myers espey llp attorney randy mcclanahan called for an end …

posted by Steve Matthews @ August 31, 2009 8:25 PM

August 19th, 2009

10 Tips for Laid Off Lawyers

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:

1. Make business cards. You are not unemployed. You are self-employed. Big difference.

2. Don’t tell people you don’t have an office. You do. It’s your home office. All you need is an address and a computer to do research and writing.

3. You never know where business might come from, except you know it won’t come from sitting at home watching Oprah. So get out of the house and talk to people. The waitress, the cabbie, the dog-walkers, the people in the supermarket. The doorman of your friend’s building. Maybe you’ll meet someone who needs legal assistance, or knows someone who needs legal assistance. Or you’ll get a date. Who knows? You might find that extricating someone from a bad marriage, representing an abused child, saving someone from an overly aggressive district attorney, or helping an immigrant get a green card, to be one of the most satisfying things you’ve ever done with your law degree. But you won’t know if you don’t try.

4. Tell people you’re an attorney. That doesn’t mean you scream it from the top of your lungs, but it comes naturally when meeting new people (see #3) when they say, “So what do you do?” You’ll have your card in your pocket. Because they might know someone, who knows someone, who needs you. In a big, bad way.

5. Start a blog. Or offer to guest blog for an existing one. Or write an article for a legal publication. Or an op-ed for the local paper. Most lawyers love to write. A few even do it well. Now is your chance to write like a human. You must have an interest in something legal or you wouldn’t have picked law for a career. You can write about anything. Except how wonderful you are an as attorney. That would suck. Because that’s an advertisement. And people hate self-promotional clap-trap. Everything else is fair game. Get your name out there. And claim your Google reputation while you’re at it.

6. Dress nicely when going to the grocery store. That doesn’t mean a suit and tie, it just means looking neat and clean. Because you don’t know who you will meet. You can’t open doors if you push them closed by looking like a slob. And you will, of course, have your card in your pocket. Just in case.

7. Join listservs. These are not only great places to swap ideas on the law, but other lawyers often run into temporary overflows. They need someone to handle a court conference. Or draft a memo of law. Or help with an appeal. And when that happens they will turn to their listmates for help. And you will be there. Of course, your new friends will also be there when you start to wrestle with questions of where to file something and other picayune procedural stuff that BigLaw never taught you.

8. Don’t be proud. My first job out of school was high end medical malpractice cases at a prominent personal injury firm in New York (Fuchsberg & Fuchsberg). Then I went out on my own. My first stationery was a business card taped to a piece of white paper and xeroxed onto good paper. I had a Mailboxes, Etc. address for my office. My first regular client argued parking tickets for commercial businesses. I started making appearances and doing depositions for $75-$100 a pop. With overhead near zero I turned a profit. I got by till the better stuff came in.

9. Keep your ears open for other business opportunities. These opportunities might be outside the law, or closely related to it. After all, if there are too many lawyers, well, I’m sure you understand that old supply and demand thing.

10. Don’t stop looking at the traditional avenues of employment. The above tips were not designed for you to start a new practice. It just might lead that way. Or not. No one has a crystal ball. All you are doing is creating opportunities. And with that comes the potential that some firm, some where, gets some big business and needs to staff up. Your resume is ready. And when they Google you they will find a few things you’ve written while you were self-employed. And you might have a really interesting story of how you changed someone’s life.

Links to this post:

true solos have true grit, but law school rewards the ephemeral
got grit? you do if you’re making a go of it as a solo. as much as many of the law practice gurus tell you that earning gobs of money as a solo is easy as pie (particularly if you’re using their thousand dollar “recipes”), …

posted by [email protected] (Carolyn Elefant) @ August 21, 2009 8:45 AM

August 18th, 2009

Michael Jackson’s Mom To Start Wrongful Death Action Against Concert Promoter?

In the news yesterday comes speculation that Michael Jackson’s mother, Katherine Jackson, might bring a wrongful death action on behalf of Michael’s children. An obvious target is Dr. Conrad Murray. But promoter AEG Live might be in this too, and that would add a whole other dimension to any potential suit. This came from the AP story (Jackson’s mother considering wrongful death suit):

“The possibility of a wrongful death action has been floated,” [Jackson attorney Burt] Levitch said. “In that regard, no decision has been finalized … Dr. Murray’s name has been floated because he is under investigation.”

Authorities investigating Jackson’s June 25 death have been focusing on Murray, who they believe administered a powerful anesthetic to the pop singer the day he died. Levitch wouldn’t say whether concert promoter AEG might also be a defendant.

On the day after he died I analyzed the possibility of a malpractice suite (Michael Jackson: The Mother of All Malpractice Suits?) based on the little information that was available. I thought it unlikely if the only assets that the doctor had were a million dollar insurance policy.

When I followed up on this theme two weeks ago (Michael Jackson: Malpractice or Manslaughter (Or Something Else)?) I added that a suit might well go forward, not because of any immediate financial gain from the potentially limited pot of money, but to prevent Murray from profiting by selling his story. Knowing he would lose any book proceeds due to a judgment against him would be a pretty big disincentive to sit down and write, or to subject himself to interviews that could be otherwise profitable, if not painful to endure.

But….if Dr. Murray was employed by the promoter, and I don’t know who signed his checks but that is one possibility, then the promoter could be on the hook for any judgment against Murray if he was acting within the scope of his employment with them. The concept of respondeat superior is well known to all who litigate, and the deep pocket of the employer is often sought when an employee hurts someone. I can easily foresee a fight here over whether Murray was an employee of AEG, or of Jackson, or was an independent contractor.

Now if the promoter was, in fact, the employer, I would guess that they bought a larger insurance policy on Jackson then the customary million, or demanded that Murray do so on his own. If they are found to be the employer, and therefore responsible for a judgment, we could be talking again about a whopper of a malpractice case.

But wait! There’s more! For while the death of Jackson would seem on first blush to create one of the largest potential personal injury cases in the nation’s history for any one individual, how does one calculate the loss? For in Jackson’s untimely death the estate is reaping millions of dollars that would seem to offset a large part, or even all, of the award. Is Jackson a better earner dead then he would have been alive? Lawyer-blogger Hans Poppe addressed this issue a few weeks back.

This is, of course a helluva tough question to answer for any entertainer, let alone one of Jackson’s stature. He did sell out 50 shows at The O2 Arena in London, but he also carried a huge amount of baggage due to issues regarding inappropriate contact with children. How much could he have made? And how much of that would he have consumed if he lived? He didn’t exactly live a life of modesty.

So the potential for AEG to be found an employer of Dr. Conrad Murray opens up a can of legal issues, and a potential lawsuit, the likes of which no medical malpractice attorney has ever seen.

Assuming the investigation brings evidence of negligence by Dr. Murray, will this suit be brought? Or not?

(Photo from from Extra, Rio de Janeiro)
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Dr. Conrad Murray speaks via Youtube (Popsquire, via ATL)

Michael Jackson: Wrongful Death Lawsuit Possible (Popsquire)

Michael Jackson’s ‘very unusual problems’ surprised his new doctor, lawyer says (Anderson Cooper 360)

Of Death and Profit (Eduardo Porter in NYT Editorial Notebook, 8/19/09):

The reported $100 million that Michael Jackson’s estate made in the first seven weeks after he died easily surpassed the $52 million generated last year by the estate of Elvis Presley, formerly the highest-grossing dead celebrity, according to Forbes magazine. It is way ahead of Marilyn Monroe’s $6.5 million last year, James Dean’s $5 million and John Lennon’s $9 million.

Death has long been a savvy financial move in the visual arts: it guarantees that the supply of new works has come to an end, conferring scarcity value upon the existing oeuvre.

August 17th, 2009

PACER Getting Easier for Thieves to Use via RECAP The Law

PACER is the federal court’s system for electronic filing (Public Access to Court Electronic Records). And it is now getting easier and cheaper to access tons of filed documents with a new tool from the do-gooders at Princeton University. And this will, in turn, open up new windows of opportunity for thieves to steal data and identities from court files.

Currently, one method of dissuading thieves is the 8 cents per page charge that PACER charges. While that is little more than chicken feed for most cases, the money would add up quickly for thieves trying to download court files in bulk and then go hunting for data and identities to swipe. When you think about it, most every deposition contains tons of background information on people, and that says nothing about the numerous other filings that could contain additional valuable data. I wrote about this last month in Client Privacy and the Courthouse File:

Those records may contain social security numbers, birth dates and places, maiden names, kids names, schools attended, and the answer to almost any other type of “security” question that people ask in order to verify identities.

But as Carolyn Elefant writes at Legal Blog Watch, the times they are a changin’ as The Center for Information Technology Policy at Princeton University has started its RECAP the Law project. “RECAP” is PACER spelled backwards, and it seeks to “recapture” the law. It does this by a little Firefox program that adds every downloaded (and paid for) document to an online repository, making it easier (and free) for others to access data. RECAP describes itself like this:

RECAP is an extension (or “add on”) for the Firefox web browser that improves the PACER experience while helping PACER users build a free and open repository of public court records. RECAP users automatically donate the documents they purchase from PACER into a public repository hosted by the Internet Archive. And RECAP saves users money by alerting them when a document they are searching for is already available from this repository. RECAP also makes other enhancements to the PACER experience, including more user-friendly file names.

Elefant is a fan of the system, as are others. With PACER, you need the name of the case in order to obtain a document, throwing an extra hurdle in the way of searching for information. RECAP allows for word searches, thereby opening it up wide to go record hunting. RECAP is easier and cheaper. (Update: According to comments, the Google search feature is now disabled for this very reason.)

With so many people in favor of this new system to access the court files (see links below), I’m left to play the curmudgeon and give the concept of easy access a big thumbs down.

Now I’m not against this based on any issue of legality. Court files are public records, after all. The hurdles in obtaining records had both a pro and con. The easier they are to access, the better for lawyers and litigants. But it’s also easier for the criminal element.

So consider this post a big, fat yellow caution banner about what types of information gets filed. A simple hospital or doctor’s office record that is annexed to a routine discovery motion, for example, may be all a thief needs to steal an identity.

While those that deal with public policy issues may rejoice in the easy worldwide availability of information filed in my local courthouse, the lawyer in the trenches had damn well proceed with even more caution than before for every paper and exhibit that gets filed. Ease of use is generally lauded by all. But the failure to recognize its downside could result in significant damage to a client.

Defense Lawyer Claims Pain Is Not A Personal Injury

I swear I didn’t make this up. A local defense lawyer sent a demand letter to a plaintiff’s attorney that he delete “pain” from the injuries in a suit because “pain is not an injury.”

When Eric Gottfried, the plaintiffs attorney, got the letter, his jaw dropped. Pain not an injury? In his response, Gottfried referred the defense lawyer to a “beginning tutorial on how ‘pain’ is central and essential to a personal injury lawsuit.” You can see the demand and response here: /DefendantsNonsense.pdf

The case seems to be a routine personal injury matter, as per Gottfried: Plaintiff is hit in the rear by the defendant in a car accident. Plaintiff has suffered a number of injuries, including a fractured nose (with surgery), three fractured vertebrae, fractured rib and rotator cuff injury, among others.

The tort “reformers” like to use anecdotes to “prove” that there are frivolous lawsuits. (Many of those cases, in turn, are pro se matters.) So here is the flip side: The most utterly worthless and frivolous legal argument that I can imagine coming out of a real law firm.

The difference, of course, is that defendants get paid to make frivolous arguments (when billing hourly) while plaintiffs lose time and money doing so (while using the contingency fee).

Links to this post:

is pain an injury?
yes, it is. the end. ok, not really. frivolous lawsuits are bad. just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. what we don’t hear about nearly as …

posted by Andrew Dat @ August 24, 2009 4:53 PM

if frivolous lawsuits are bad, what about frivolous defenses?
we are always hearing about these evil, un-american frivolous lawsuits that threaten the very fabric of our society. ok, i get it. i dislike frivolous lawsuits as much as anybody. they devalue the claims of the truly injured, …

posted by @ August 18, 2009 10:10 AM