May 6th, 2008

Blogger v. Attorney (Seidel v. Shoemaker), And Today’s Very Strange Motion

This is one of the weirder legal arguments I have seen. And it comes today on top of the very weird subpoena that had been issued by Virginia attorney Clifford Shoemaker to New Hampshire blogger Kathleen Seidel a few weeks ago.

The brief background is that Shoemaker represents Lisa and Seth Sykes in a Virginia suit over whether mercury in vaccines causing autism. Seidel isn’t part of that recently discontinued suit; she is just a blogger (albeit a very knowledgeable one) in New Hampshire who writes on the subject at her blog, Neurodiversity.

Now Weird Move #1 came when Shoemaker served a subpoena on Seidel asking for all kinds of crazy stuff that has nothing to do with his suit, including production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com.” This included the out-of-this-world crazy demand regarding “religious groups (Muslim or otherwise), or individuals with religious affiliations”(See: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena).

I, and many others, suggested sanctions might be in order and, lo and behold, the judge agreed. (See: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned) I can’t be the only one waiting to see the justification for what appears to be religious fear mongering, among other issues in a subpoena that seems dedicated to harassing Seidel.

So that brings us to today and Weird Move #2, wherein Shoemaker hires local counsel in New Hampshire to defend him against the potential for sanctions, that he was ordered to do within 10 days. And local counsel, to no great surprise, needs more time to respond due to the press of business. A perfectly reasonable thing to ask, mind you, and an application 99% of judges would grant. Except for some itty, bitty, little details.

In the motion papers, one of the new lawyers (John McHugh, based in New York) decides to take this pot-shot at Seidel instead of just asking for more time:

[Seidel] and her associates have done more than comment on these positions; they have taken action to discredit the Sykes family, Lisa Sykes as a minister of the United Methodist Church, and witnesses who have given support to the family’s positions. They have interfered with these witnesses’ professions, professional relationships, and economic opportunities.

Last time I checked, the First Amendment hadn’t been repealed. Criticism is fair game.

But wait, there’s more! After slamming Seidel, the new counsel then goes on to admit that:

However, your Declarant is new to this case and to Ms. Seidel, and while I have been attempting to gather the information needed, I have been unable to complete that
task due to the press of other work as well as the fact that Mr. Shoemaker has either been in hearings or preparing for imminent hearings, all in other cases, or taking third-party depositions in this action since he received this order. While I have interviewed some victims of Ms. Seidel’s activity, I have not yet been able to gather the material I would need to show the Court the justification for the Subpoena and its scope. (Emphasis added)

So Weird Move #2 actually manages to include a few different issues:

  • Why is it necessary to look for justification for the subpoena after it was issued?
  • Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.
  • If Shoemaker has no time to talk to his counsel about Seidel and the subpoena because Shoemaker is up to his eyeballs in hearings, why is local counsel trash talking Seidel in the motion papers?

Shoemaker seems to be speeding toward a sanction. Here’s the motion: SykesMotion.pdf

 

May 6th, 2008

Bork’s Lawyer, Randy Mastro, Picked For McCain’s Judicial Steering Committee

Robert Bork’s lawyer, Randy Mastro, has been tapped as a member of Senator McCain’s steering committee for judicial selections. Mastro is currently a partner at Gibson Dunn, and a former Deputy Mayor under Rudy Giuliani.

Of interest to this blog, however, is that he fouled up Judge Bork’s trip and fall lawsuit against the Yale Club, causing embarrassment to the former judge due to claims for “in excess of” of million dollars, punitive damages, attorneys fees and prejudgment interest. Mistakes were made in the Complaint (and the Amended Complaint) that even rookie lawyers wouldn’t make. I chronicled many of the unnecessary legal problems that were created by the botched suit here:

And so it appears that the old adage remains true: It isn’t what you know, but who.

See also:

(Hat tips to Scott Greenfield and Walter Olson)

 

May 4th, 2008

Eliot Spitzer Enters Private Practice

Former New York Gov. Eliot Spitzer entered private practice yesterday with Spitzer & Associates. Part of his practice will be personal injury law, among other matters within his unique world view. This includes, as he makes clear, some unique slip and fall cases as well as defective product litigation.

His entire announcement is here:

 

May 2nd, 2008

Linkworthy

Michelangelo’s David returns to Florence badly damaged after a short stay in the U.S.;

Kevin, M.D. on what makes a good medical blog (DocBlog?), all of which pertains equally to law blogs;

Brooks Schuelke puts up Personal Injury Law Round-Up #60;

Blawg Review #157 is up at Labour Law;

And Medical Humanities puts up Health Wonk Review, referring to this blog as “a general must-read on tort law and medicine.” Yeah, that gets a link.

 

May 2nd, 2008

New York Judges Slowing Cases From Legislators’ Law Firms Over Pay Raise Issue (Updated)

Some New York judges have taken aim at the law firms of legislators for cases pending in front of them, due to the failure of the legislature to give them a pay raise, according to the New York Post. New York’s judges here have not had a pay raise, even for cost of living, for nine years.

According to the Post, emails have circulated with titles like “How to Get Our Salary Adjustment,” and the e-mails have included a “blacklist” of 50 state legislators who are registered as attorneys and the firms where they are employed.

A prime target is Weitz & Luxenberg, with thousands of asbestos and other mass tort cases pending in New York’s judicial system, because Assembly Speaker Sheldon Silver is a partner at the firm and is blamed by many for the delay in passing legislation for the salary increase.

Particularly interesting is that some judges are recusing themselves from cases that involve the Speaker’s firm. This money quote comes from the Post article:

“I think the speaker is a slug,” said Cattaraugus County Judge Larry Himelein, a Democrat who said he couldn’t be fair to Silver’s firm. “The whole New York state political process is a joke.”

According to the article, “judges say the recusals are about avoiding any conflict of interest because of the ongoing pay dispute.”

But if the judges claim to be biased against the Speaker’s firm then, of course, the opposite must also be true: They will be forced to recuse themselves from any case where Wachtell Lipton is counsel, as that firm is representing Chief Judge Judith Kaye pro bono in her suit on behalf of the judiciary in favor of pay raises against Silver, Senate Majority Leader Bruno and Governor Patterson). (See: Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit?)

The pay raise issue will be no doubt be the source of additional litigation by savvy attorneys who don’t want judges sitting on their cases when Wachtell is also appearing in the case. This work slowdown by judges on Weitz & Luxenberg cases will be powerful evidence of bias in the judiciary for those firms involved, on both sides.

Addendum: Last week, the state’s Advisory Committee on Judicial Ethics issued this opinion that Chief Judge Kaye’s lawsuit on behalf of the judiciary does not require judges to recuse themselves when a legislator appears before them as counsel, or his/her firm, or a firm representing one of the parties, but that they may do so as a matter of individual conscience.

Regarding my post on Wachtell’s appearance, the advisory opinion states:

Regarding the appearance before a judge by a member of a law firm representing one of the parties in the Chief Judge’s litigation itself, we note again that the inquiring judges are not named parties in that lawsuit. Consequently, the law firms involved in that action neither represent those judges nor parties adverse to those judges. Accordingly, the Committee concludes that recusal is not required when a member of a law firm representing one of the parties appears (see Opinions 07-176; 01-24[Vol. XIX]).

The advisory opinion does not address the issue I had raised with respect to the substantial gift of pro bono services that was made, and accepted by Chief Judge Kaye, to the judiciary.

See also: Chief Judge Writes N.Y. Governor to Deny Work ‘Slowdown’ by State’s Judges (NY Law Journal via Law.com)

(hat tip, Overlawyered)