May 20th, 2009

NY Press Shield Law Would Extend to Bloggers (And Define Blogging)

As per the NY Times late this afternoon, New York’s press shield law that protects news reporters from being forced to testify regarding sources would be extended to include bloggers under a new bill.

According to the Times, the bill under consideration would expand the scope of the law to include “journalist bloggers,” with a blog defined as

“a Web site or Web page that contains an online journal containing news, comments and offers hyperlinks provided by the writer.”

I don’t usually use this space to re-post stories without additional commentary — I save that for my Linkworthy posts — but I thought this was sufficiently important. And the lack of time that I have right now prevents me from writing more.

Links to this post:

may 22 roundup
recruiting municipalities to sue: “class-action lawyers target online travel sites” [roger parloff, fortune, earlier]; “new york press shield law would extend to bloggers (and define blogging)” [turkewitz]; keep publishing that paper or …
posted by Walter Olson @ May 22, 2009 12:08 AM

 

May 19th, 2009

The Million Dollar Advocates Forum (What the Heck is That?)

I’ve received the letter a few times, beseeching me to join the “Million Dollar Advocates Forum.” Oh boy! That looks mighty impressive. So I investigated to find out what, exactly, it is.

And now I’m here to report: It’s a great way to make money for the guy that thought it up. And little more. You pay him $1,200 and he gives you a certificate (gold embossed and suitable for framing!) and the right to use one of those groovy logos that you see to the right on your website. It is to me, short and simple, a marketing program.

The Forum is a “prestigious” group that is “limited” to those that have “won” million dollar settlements or verdicts. If you Google Million Dollar Advocates Forum you will find no shortage of lawyers boasting of this faux honor. But if a lawyer already lists such results on a website, why pay this guy $1,200 in cold, hard cash for this piece of marketing? You don’t need his logo or piece of paper to prove you’ve handled a big case.

I found this bit of hype from the website interesting:

There are over 3000 members throughout the country. Fewer than 1% of U.S. lawyers are members.

Read carefully, for that bit doesn’t mean that only those 3,000+ lawyers have handled million dollar cases. No, it means that of those that have handled million dollar cases that is the number that forked over their money for the logo and certificate.

And I think it’s also worth noting that having “won” a million dollar case doesn’t mean a lawyer is good. What if, in better hands, the case could have been resolved for three million? All of a sudden that million-dollar-lawyer moniker isn’t much to brag about.

But wait, there’s more! And you don’t even have to order by midnight tonight. You see there is also a “Multi-Million Dollar Advocates Forum,” and lucky for you that certificate (gold embossed seal and suitable for framing!) can be had for only an extra $1,000. Or $1,700 if you apply for both at once.

It’s also interesting to note that if you defended a million dollar case, you don’t qualify, because you have not “won” a million dollars or more. I’m not sure why defense counsel wouldn’t be on the same footing as the plaintiffs’ folks, for while funding of the case is certainly vastly different, the courtroom skill set is pretty similar once you step into the well. (My father likes to tell the story of the first lawyer to lose a million dollar malpractice case in New York. Rather than hurting his reputation, he became the million dollar go-to lawyer for the big cases.)

So if you see that little logo on someone’s website, or the certificate on the wall, don’t be too impressed. If the lawyer handled million dollar cases, and handled them well, and wants you to know, s/he will likely list them on their website or tell you in person.

The logo should mean little to the potential client seeking counsel. The certificate seems to be worth the price of the paper it’s printed on. Unless you were the guy who came up with the idea and raked in the dough for creating that certificate. In which case it means $1,200 being transferred from your bank to his.

Do you detect sour grapes on my part? You bet! I’m bummed that I didn’t think of this first. Who needs to work when you can get, according the web site, over 3,000 people to pony up that kind of cash for a piece of paper? Who knew there were thousands of lawyers out there so willing to part with their cash for this token? According to this 2002 article, the old fee was $450. It has almost tripled since that time. Now that is a great business model for a company that provides a website, logo and piece of paper.

The “Forum” is the brainchild of Donald F. Costello. Costello is himself a personal injury lawyer out in California (though he says he is no longer accepting cases), and his website features the logos that he created three times as well as three additional mentions of the “Forums” in the text. Visitors, however, are unlikely to know that he is the one that created this little business out of whole cloth.

Curious as to whether his company had the backing of any bar association anywhere in the United States, I shot him an email. And the response from Costello?

“The Million Dollar Advocates Forum has no relationship of any type with any bar association or any other group.

Update: See comment #5 by fellow New York attorney Gerry Oginski. He wrote in a March 2009 post about some company called Elite Lawyers of America is trying to suck $500 out of attorneys for a lucite obelisk proclaiming their greatness.

Updated x2: The Wall Street Journal Law Blog picked up where I left off, quoting this piece, in The Million Dollar Advocates Forum: A Valuable Service or Something Else?

Links to this post:

the million dollar advocates forum: a valuable service or …
let’s say you or a family member is badly injured in a car accident and you need to sue the person you think is at fault. in order to find a lawyer, we figure you’ve got a few options. you could go with a recommendation from a friend; …

posted by WSJ_law_blog @ May 22, 2009 5:00 PM

The Million Dollar Advocates Forum: A Valuable Service or …
Let’s say you or a family member is badly injured in a car accident and you need to sue the person you think is at fault. In order to find a lawyer, we figure you’ve got a few options. You could go with a recommendation from a friend; …

posted by Ashby Jones @ May 22, 2009 2:09 PM

“million dollar advocates forum”
prestigious honorific? marketing gimmick? eric turkewitz does some digging, and also passes along this tangential but memorable anecdote: my father likes to tell the story of the first lawyer to lose a million dollar malpractice case in …
posted by Walter Olson @ May 19, 2009 8:24 AM

 

May 18th, 2009

Judge Sotomayor and the First Amendment (And the Pending Case)

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals is on the short list for Justice David Souter’s soon-to-be-vacant Supreme Court seat. At SCOTUSblog, Tom Goldstein reviews some of her civil appellate opinions, and notes that “Sotomayor has considered First Amendment issues relatively infrequently.”

It’s worth noting then, that she currently has a First Amendment case before her that I’ve discussed with some frequency on this blog, and one that may ultimately affect all attorneys: The issue of New York’s new attorney advertising rules in Alexander & Catalano v. Cahill.

The case, argued January 22nd before a three judge panel comprised of Sotomayor, Guido Calabresi and John M. Walker Jr., deals with a number of attorney advertising and anti-solicitation ethics rules that went into effect in 2007 (see, New Attorney Advertising Rules (Is This Blog an Advertisement?), which includes a 30-day moratorium on attorney advertising after a mass disaster. That particular rule was upheld in the court below. The problem with that regulation, as I’ve discussed, is not so much the 30-day time period, but the difficulty in defining advertising in the context of the web. Just trying to figure out who must comply is often difficult.

Subsequent to oral argument, the real-world effects of the regulation were seen when Continental Flight #347 went down in Buffalo, and I followed the myriad ways that advertising/solicitation could take place that might violate the rule. And that the very ambiguity of trying to figure out where the bright line of solicitation exists raised First Amendment issues. Some of the those posts are here:

It is now almost five months since argument was made. Whether a decision comes out while the SCOTUS nominating waiting game goes on, or after it is over, remains to be seen.

(My comments on one of the qualities the nominee should have are here: The SCOTUS Nominee and The Tissue Box Test)

Links to this post:

“Judge Sotomayor and the First Amendment (And the Pending Case)”
“Judge Sotomayor and the First Amendment (And the Pending Case)”: Eric Turkewitz has this post today at his “New York Personal Injury Law Blog.”
posted by Howard Bashman @ May 18, 2009 12:42 PM

 

May 15th, 2009

Linkworthy (Cheerios, Anti-Semitism, and More)

The FDA thinks that Cheerios are being marketed as drugs and sends a warning letter to General Mills (A Georgia Lawyer). I wonder what the FDA would think of chocolate frosted sugar bombs?

Father and son to oppose each other in primary election. That’s a headline you don’t see too often, but it’s true. In Westchester County (NY):

When County Executive Andrew Spano announced last week he was seeking a fourth term, he didn’t name either of his challengers – Republican Rob Astorino or his own son, David Spano, who wants to run against him in the Democratic primary.

Somebody Got Murdered: Knifing in the Bronx (Village Voice: Runnin’ Scared):

If someone gets killed in Central Park, it’s big news. Not so when it happens in one of the city’s lesser known parks. The murder of a 23-year-old woman in St. Mary’s Park in the Bronx yesterday around lunchtime didn’t even merit an article in the local tabs.

Oklahoma approves tort “reform” measure with this bit of contradiction (via TortsProf):

A cap on non-economic damages of $400,000, but an exception that a judge or jury may waive the cap in cases of gross negligence or catastrophic injury;

A U.S. Senate candidate refers to Chuck Schumer as “that Jew.” While trying to show he has “traditional” values. Some traditions I can do without. (NY Intel)


If health care is one of your interests, the Worker’s Comp Insider has this week’s Health Wonk Review;

Ron Miller with a variety of personal injury links;


Point of Law with another round-up of civil justice issues; and

Blawg Review #211 is up at HealthBlawg, focusing on Obama’s first 100 days.

 

May 12th, 2009

The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

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 want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court. He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
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More:

Links to this post:

sotomayor–the perfect choice
barack obama needed four important qualities in his first supreme court nomination: first he needed to nominate a woman and/or a person of color; second, he needed to nominate someone who would not face confirmation problems, third, …

posted by liberalamerican @ May 29, 2009 12:58 PM

the case for tissue-box lawyers
for reasons that should be fairly obvious, there’s quite a bit i disagree with in eric turkewitz’s impassioned defense (in the context of selecting potential judicial nominees) of injury and criminal-defense lawyers. …
posted by Walter Olson @ May 12, 2009 7:53 PM