September 3rd, 2008

Linkworthy

TortsProf has the 8/29/08 edition of the Personal Injury Round Up, in case you missed it due to Labor Day / vacation;

Jamie Spencer’s Austin DWI Lawyer hosted the Labor Day edition of Blawg Review # 175;

Philip Morris v. Williams heads up the Supremes for the third time, on the issue of a punitive damage award. California Punitive Damages has the briefs (via TortsProf);

Walter Olson at Overlawyered on the proper way to blog and comment on blogs;

Gov. Sarah Palin — Republican VP nominee and arch anti-abortion crusader — had an amniocentesis while pregnant. But if she had no intention of ever aborting, why have it? (Dorf on Law)

More Palin:

I still consider my pre-Iowa caucus picks of Obama/Biden and McCain/Romney to be alive.

 

August 29th, 2008

New York Law Blogger Sued For Defamation (Updated)

Will Brooklyn lawyer Marina Tylo be spanked for a frivolous defamation suit against a New York law blogger?That is the question being asked by Scott Greenfield over at Simple Justice. It seems that Tylo screwed up by serving a Summons prior to purchasing an index number. That’s a no-no in New York, and has been for years. You have to first pay the index number fee to start the suit, then serve the summons.

Tylo was sued for legal malpractice as a result. But because the subsequent attorney still had time to rectify her blunder, the malpractice case against her was dismissed.

Andrew Bluestone, whose blog focuses on New York attorney malpractice, wrote the story up. Sort of. He actually just wrote a prefatory paragraph that introduced the decision. You can see his posting with the decision here: Serving a Summons before Buying an Index Number

But that blog post seemed to make Tylo upset. So she sued Bluestone, apparently because he had the audacity to report the story. Her claims include libel, negligence, gross negligence, intentional infliction of emotional distress, and “tortious interference with prospective contractual relations.”

According to her legal filing, this is the entire text of Bluestone’s allegedly tortious conduct, this being his introduction to the court’s decision:

Here is the full text cite for a legal malpractice case in which plaintiff’s attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07

That’s it! You want the definition of frivolous? You got it right there in that filing. A simple factual statement. He didn’t even offer his opinion, which of course, would be protected anyway under that little First Amendment thingie.

(Addendum: The exact definition of a frivolous suit is right here. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;)

And what kind of relief does Tylo seek? Aside from 10 million bucks, she wants Bluestone to remove his posting. The relief she requests includes:

  • A retraction of his “libelous” statement; and
  • “Removal of above stated statements, as well as other like and similar statements, from all publications, blogs and other media.”

Perhaps she thought that by suing him she could purge the Internet of this posting, so people wouldn’t see it when they looked her up. Tylo, of course, is not the first to have this brilliant idea of trying to purge the Internet of unfavorable references. She apparently has no clue about something called the Streisand Effect. (She also might find Dan Solove‘s book, The Future of Reputation On the Internet, to be of interest. Though reading it before filing suit would have been wise.)

So as a result of her idiotic suit against Bluestone she has drawn more attention to herself. Which probably wasn’t what she had in mind. Especially since others might now offer their opinions. Like Greenfield did. Like I do now. And those would be constitutionally protected opinions I might add, though frankly, anyone with a license to practice law in this country should already know that.

One last thing, by the way, since I found her bio. If she cares about her Internet reputation, she might want to put a bit more care into how she presents herself:

I am a very experienced and competant attorney. I finished NYU law school and have over 14 years expiernce in legal matters relating to Real Estate. Even though by using a great attorney such as my self you can save a whole lot of money I do not charge excessive legal fees. I also have a lot of expeirnce in investing and owning real estate and thus I am in a position to trully understand and appreciate any pitfalls associated with all types of real estate transactions including Litigation, Closings, Tenant issues, and transactional negotiational matters. I am licenced in the State of New York and all Federal courts, and Supreme Court of the United States. I will fight for my Clients tooth and nail to get the desired results.

Ms. Tylo, welcome to the electronic age.

You can find more on the subject here (updated periodically as more write on the subject):

“From the annals of the truly stupid comes this latest attempt to shut down a blawger.”

“If some books are destined to on the big screen, there are some lawsuits destined to appear at Overlawyered.com.”

“I can’t disagree with Scott, but the more salient point, in my view, is that Tylo chose the wrong defendant…”

“This wasn’t a very good idea, since filing a frivolous lawsuit against a law blogger is not the type of event that other bloggers will ignore.”

 

August 28th, 2008

Paine to Pain 1/2 Marathon Trail Race on the Colonial Greenway (Westchester)

This isn’t about personal injury law, but about a 1/2 marathon trail race I am organizing. Unless someone gets hurt and sues me, of course. Then it will be about personal injury law.

This is the virgin running of the Paine to Pain 1/2 Marathon Trail Race on the Colonial Greenway, in Westchester County just north of NYC on September 28th. It starts at Paine Cottage in New Rochelle and ends — after a spectacular loop of local trails in the areas of New Rochelle, Larchmont, Mamaroneck, Scarsdale and Eastchester — at New Rochelle High School across the street from the start. I wrote about this a bit in May when the local paper ran a story about one of the trails we will use, and used me for the story. (See: Me on the Front Page of the Sports Section (Again))

The point of the race, which will be an annual event after this, is to officially dedicate the creation of the trail system. It came together just this year, after about six years of work and numerous meetings with local officials.

Trail races are not something you generally see in the New York City area. In fact, there is nothing else like this in the whole metropolitan area. (And if you are interested, we are limiting it to 200 people this first year, so sign up quickly.)

But in putting the race together, I found myself confronted with the liability waiver issue. Every sporting event has one. And the vast majority are in unreadable gobbledygook that makes the eyes glaze over. Why use Ambien for a sleep aid if you can find legalese?

In deciding how to handle it, I first had to determine what the point of the waiver was. Is it to protect the organizers if someone gets hurt and sues, or to protect the event participants from getting hurt in the first place (or to write it in such horribly stilted language that insures no one will read it)?

Sadly, most seem designed to protect the organizers, despite the fact that such protection likely already exists under the doctrine of “assumption of risk.”

So mine was written with the participant in mind, not the organizers. And it starts like this:

I realize that these trails have many rocks, roots, stumps and other tripping hazards. The course can be narrow, crowded and wildly uneven. Wet weather may create mud holes and fell trees and limbs that race officials and trail maintainers don’t even know about.

That’s the informing part. And yes, I did feel a need to put a touch of legalese in it, so I dressed it up a bit to make it readable, cribbing here and there from other releases that I found online that were made, thankfully, without letting a lawyer muck it up:

I therefore release and discharge all race officials, volunteers, sponsors and municipalities, as well as the rocks, roots and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt.

But let’s just hope that nobody suffers anything more than a few scrapes and bruises.

If you’re in the NYC area and looking for an excuse for a long run in the woods, come run with me on September 28th.

 

August 23rd, 2008

I Shoulda Had A Political Blog

With Senator Joe Biden being picked today by Barack Obama, I am three for three in the presidential sweepstakes for the major parties.

My call before the Iowa caucuses, with Guiliani and Clinton riding high:

Reps: McCain/Romney
Dems: Obama/Biden
Indep: Bloomberg/ Gary Hart (who correctly predicted an attack like September 11 and tried to warn)

As much as this New Yorker would like to see Clinton v. Giuliani v. Bloomberg, neither Hillary nor Rudy will get their party nominations.

But no, I went with a little, niche personal injury blog. I coulda had my name in bright, twinkly lights at places like Instapundit, Daily Kos, Andrew Sullivan, Talk Left and other nifty places. I coulda been a star. I coulda been somebody…

 

August 22nd, 2008

Linkworthy

Justinian Lane at TortDeform has has been doing Inter Alia, a round-up of tort “reform” stories on the web. Certainly a valuable resource. (And he links this week to, inter alia, a tort “reforming” Chamber of Commerce that has brought it’s own lawsuit;

Walter Olson provides the flip side of Lane with his round-up from the conservative side, focusing on toxic cases at Point of Law;

Bill Childs has put this week’s Personal Injury Law Round-Up up at TortsProf with a link to, inter alia, the Big Foot hoax and subsequent lawsuit;

An Olympian Blawg Review is up at Chicago IP Litigation Blog;

And those four links provide a little round up of round-ups, and enough reading material for a week.

P.S. I usually stay out of presidential politics — because once you get started you can’t stop — but before the primaries I made these predictions: McCain/Romney and Obama/Biden: Presidential Politics and the Iowa Caucus