July 7th, 2009

Welcome New Visitors: (NYT on Sotomayor & Associates, And On Failing to Credit Story Source)

It’s funny how one can be in the news without actually being in the news. As mentioned earlier today, the New York Times ran a story about “Sotomayor & Associates” and the fact that she didn’t have any actual associates. I wrote that story up back on June 4th, and it’s laid mostly dormant since then.

But when the Times failed to credit me with having found this item as they furthered the investigation, other bloggers took notice and the issue of journalistic ethics reared its head.

To my new readers (at least for a day), I welcome you. If you want to know more of the types of stuff I write about here, and whether this obscure little blog should be part of your RSS feed, you can skim this “best of” piece.

Welcome to readers of those that follow (and my thanks to their authors for the inbound links). I’ll update this later with further links should the story be of interest to others:

  • Scott Greenfield @ Simple Justice with a long and gracious post (Credit is a Two Way Street) that includes this lede:

    Judge Richard Posner recently suggested an extreme solution to the potential death of the newspaper. Using the argument that there’s no reason to buy the cow when you can get the milk for free, Posner urged the expansion of copyright law to “bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent.” In other words, burn blogs to save newspapers.

    But this assumes, as Posner does, that its only blogs that free-ride off the newsgathering efforts of “legitimate” media. While this is certainly the predominant flow, it’s not always the case, as was clear today when the New York Times published a story about Sonia Sotomayor’s foray into private practice under the name “Sotomayor and Associates.” It was a wonderful piece of investigative journalism, but for one detail. The news was unearthed not by the Times, but by blawger Eric Turkewitz at New York Personal Injury Attorney Blog…[more]

  • Prof David Wgner @ Ninomania:

    Did Sotomayor violate a well-established bar rule in calling her solo practice in 1983-6 “Sotomayor & Associates” when evidence suggests it was just herself helping family and friends via a home practice?

  • John Steele @ Legal Ethics Forum:

    A solo cannot describe his or her practice with the phrase “and Associates” if in fact there are no associates there. It’s false and misleading. [more]

  • Jim Lindgren @ Volokh Conspiracy: A multi-state look at the use of “and Associates” in the name of a solo practice
  • Walter Olson @ Point of Law:

    …the nominee called her very small practice “Sotomayor & Associates” even though it had no lawyers but herself. That would appear to be an infraction, if a minor one, of the relevant New York ethical rules.

  • Mark Draughn @ WindyPundit:

    Even if he got the idea from Turkewitz’s’ blog, he probably considers the idea public property because the primary source for the blog post—Sotomeyor’s questionnaire—is available to anyone, and Turkewitz doesn’t have any ownership of the story just because he wrote about it first. [Much more at On the Ethics of Sourcing For Bloggers and Journalists]

[New Sotomayor tag added for easy access to all Sotomayor posts]

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

sonia sotomayor “and associates”
[i’ve edited to make this tighter.] story here and here. eric turkewitz, a new york lawyer/blawger, broke the story. [then professor alberto bernabe, of the john marshall school of law, blogged about it.]
posted by John Steele @ July 07, 2009 2:48 PM

 

July 7th, 2009

NYT: "Sotomayor & Associates" Becomes an Issue For Nominee and White House


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 (Little Information Given About Solo Law Practice Run by Sotomayor in ’80s.) The Times treats the story as original material to the paper, without giving attribution to others.

The Times has now expanded on the quick treatment that I gave it, and checked with the White House to get more details on the law firm. They found that:

The White House has described Ms. Sotomayor’s outside legal work as an informal practice, one that never required her to file legal documents or appear in court. She never incorporated Sotomayor & Associates or registered it as a business in Manhattan or Brooklyn, where she then lived, according to public records, though she was not required to do so.

The Times goes on to quote old-reliable ethics commentator and NYU law prof Stephen Gillers (are there no other ethics attorneys to quote in New York?) as agreeing with me that this was a violation of the ethical rules in effect at the time:

Stephen Gillers, professor of legal ethics at New York University Law School, said Judge Sotomayor’s use of the larger-sounding title was “inadvisable because it is inaccurate.” He noted that bar associations frown on the use of the term “and associates” by single practitioners. “She could have just said, ‘Law Offices of Sonia Sotomayor,’ ” he said.

[Note to Gillers: If Sotomayor wrote “Law Offices of Sonia Sotomayor” it would also be inaccurate. It would need to be singular, not plural.]

The White House, however, claims that no ethical violation occurred with the use of “& Associates” at a time when there were no actual associates. They responded:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Why did I bother with this minor issue to begin with? Because I sometimes write about the practice of law for small practitioners, about legal marketing and its problems, because the nominee fell into that zone of commentary, and because massive layoffs in the legal field were sending folks out on their own. It was meant as little more than a cautionary tale for those starting up their own practices to be careful about over-promoting themselves and running into trouble.

Now if we could turn to the ethics of the New York Times in using the stories of others without giving credit….

Update: I’ve added more regarding this at: Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given

posted by [email protected] (Carolyn Elefant) @ July 13, 2009 12:59 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

“Sotomayor & Associates” … meh, who cares?
Nothing has happened since May 26 to make me change my initial take on Pres. Obama’s nomination of US Circuit Judge Sonia Sotomayor to fill Justice Souter’s seat on the Supreme Court. (That take, in short, was this: Obama would never

posted by Beldar @ July 07, 2009 11:01 PM

sonia sotomayor “and associates”
[i’ve edited to make this tighter.] story here and here. eric turkewitz, a new york lawyer/blawger, broke the story. [then professor alberto bernabe, of the john marshall school of law, blogged about it.]

posted by John Steele @ July 07, 2009 2:48 PM

legal ethics — and journalistic ethics….
legal ethics — and journalistic ethics.
posted by Glenn Reynolds @ July 07, 2009 8:54 AM

 

July 2nd, 2009

July 2nd: A Day to Declare Independence (And Celebrate Juries)


On July 2nd, 1776, the Continental Congress voted for Independence. We celebrate, however, on the 4th when the Declaration was signed. I discussed this last year in: United States of America Declares Its Independence (Jury Trials Are One Reason)

But it’s worth repeating this year on the heels this week of the WSJ op-ed by high profile law professor Richard A. Epstein, who proclaimed that the right to a jury trial was a mere “procedural feature,” among other ludicrous claims.

And so it’s worth repeating that not only is the mere “procedural feature” enshrined in the Bill of Rights, but it’s also in the Declaration of Independence.

In the long bill of particulars of reasons we took up arms against the crown is this:

For depriving us in many cases, of the benefit of Trial by Jury

Have a good read:

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America


When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

July 1st, 2009

Congratulations to Overlawyered


Overlawyered today celebrates its 10 year anniversary, making it the longest legally-themed blog around. It has also provided me with one of the biggest surprises that I’ve experienced, and invaluable lessons about how to blog.

Its proprietor, Walter Olson, uses the site to document the high cost of litigation. He has his conservative political views, which are often diametrically opposed to mine. In fact, if the proposals of the Manhattan Institute (where he is a fellow) were followed, the rights of many (if not all) of my clients would likely be eviscerated. That means we knock heads every so often, as I do with his co-blogger Ted Frank.

And despite this, while still in my rookie year blogging, he added me to the blog roll of his site. I wrote at that time, back in August 2007:

When pigs fly, I hear you say.

Would the oldest legal blog in America — dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits — actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort “reformers” to task every so often? One who is a guest contributor at Overlawyered’s arch nemesis, TortDeform? Well, yes. They would.

And he didn’t just add me to his blog roll, but he links to me with some frequency sending me a steady source of readers. And those links don’t just come in where I agree with him about a suit that was stupidly brought — and in a nation of 300 million that will happen with some frequency — but more often when I disagree with him on an issue. He is telling his own readers: And for the opposing view, see this post from a PI guy.

Lesson learned. Don’t ignore opposing views. Read them, consider them, and respond to them if you wish. It is the ideas that matter. Same as in the courtroom.

Another lesson is that he has never once made a personal attack, despite all my criticisms. Which is also something that every legal battle should embrace. Respond to the message, not the messenger. Judges hate personal attacks.

And another lesson: Admit mistakes when they happen. You can’t be constantly writing in the blogosphere, often quickly and with little editing, and not make mistakes. At his sister site, Point of Law, he showed the way mistakes are rectified.

And so, a tip of the hat today to Walter Olson. Not just for figuring out this blogging thing faster than any one else, but for doing it with class and style.

 

June 30th, 2009

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ)

There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the “reform” of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don’t hold water.

Whopper #1, Epstein writes:

“American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.”

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show — at least in NY, where I practice, and where Epstein is now a visiting professor at NYU — specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he’s tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four “procedural features that drive up malpractice costs.” They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This “procedural feature” is called a constitutional right. The Seventh Amendment‘s right to jury trials in civil actions (and statewide equivalents) is what Epstein is actually complaining about. I reprint the federal version here so that he doesn’t have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second “procedural feature” is the:

“contingency-fee system, which allows well-heeled lawyers to self-finance litigation.”

Of course, if the lawyers didn’t fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting — and risking their own money for — is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That’s a great way to give immunity to those that were negligent.

The third “procedural feature:”

“…is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner.”

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won’t be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of “loser-pays.” But that just means that victims can’t afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

“…extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.”

I’ve never heard of discovery that didn’t have judicial oversight in the event of abuses. Epstein doesn’t provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for “reform” that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort “reformer” actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)
———————-
More from John Stossel at ABC, who supports “reform,” even though he had no hesitancy himself in suing another for injuring him. Some “reformers” are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with “tort reform for thee, but not for me.”

Links to this post:

maxwell strikes back
maxwell kennerly’s litigation and trial blog is a must-read for lawyers who practice civil litigation of almost any type. his posts are timely, thoughtful, and relevant. take this post, “‘how other countries judge [medical] malpractice

posted by [email protected] (John Day) @ July 02, 2009 5:39 AM

epstein: “how other countries judge malpractice”
richard epstein surveys the ways other systems handle litigation, and medical litigation in particular: even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren’t the whole story.
posted by Walter Olson @ June 30, 2009 8:17 AM