November 27th, 2016

Is Trump Trying to Lose After Winning?

The classic face palm

On Twitter today, Donald Trump appeared trying to snatch defeat from the jaws of victory. He actually claimed, for no apparent reason, that “millions” of illegal votes had been cast. This comes as Jill Stein is asking for votes to be recounted in Wisconsin, and potentially Michigan and Pennsylvania, recounts that are unlikely to change the election unless some one, or some government, actually hacked into the states computers to alter the vote counts. Theoretically possible, but not very likely.

Two thoughts on this idea of seemingly trying to lose after you have won, that come from the trenches of the law but are widely applicable.

First, back in 2009, a defendant won a criminal trial, and then the defense lawyer, perhaps out of habit, asked the the jury be polled on their verdict. The blunder was widely noted in the blogosphere.

There is no reason on earth for such a request, because once the defendant has won a criminal trial, it’s all over. The fat lady has sung, you grab your coat, make sure the jury is discharged, and get the hell out of the courthouse as soon as possible lest someone find a technical problem with the jury’s verdict. You certainly don’t ask for someone to look for a problem if you have won.

As you may expect, and the reason that story made news, is that when polled a juror said it wasn’t her verdict, the jury went back into the jury room and an adverse verdict then appeared.

Second, as every lawyer knows, when you have won an argument in front of a judge, you just shut up and sit down. Period. You don’t give the judge a reason to revisit a decision any more than you give a jury a reason. Maryland trial lawyer Bruce Godfrey quickly noted this on Twitter:

He seems so desperate to always be in the news, for anything at all, that he is willing to shoot himself in the foot to do it.

Remember, Trump is the guy that will “negotiate” with the Russians and Chinese, the Syrians and Iranians, the Saudis and Palestinians. He will get the nuclear codes.

What could possibly go wrong as he continues to troll the world so that his name stays in the headlines?

November 23rd, 2016

Count Your Blessings

People in mixed families — some of whom voted for Clinton and some of whom voted for Trump — may be dreading Thanksgiving and seeing certain relatives.

But it isn’t up to me to tell you how to grow up and handle awkward and painful situations. If you haven’t figured it out yet, you are unlikely to learn how to do so here.

This doesn’t mean you can’t be thankful. As you likely should be, if you are reading this post.

The first time I did a Thanksgiving Day message, it was in the form of a Blawg Review, recounting the time Arlo Guthrie came to dinner at my house for a dinner that couldn’t be beat. That was 2009.

In 2011 I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. I decorated my blog that year with the photo you see here: me dressed up in a turkey suit for a local race. That message is below.

In 2013 I came back with this message to put away those little pocket computers, unless you wanted to use the phone function that some of them have to talk with those dear to you, but perhaps not so near.

I am now a blogger for 10 years. And this past Sunday I put on that turkey suit that decorates this post for a local 5K, and I’ll put it on again for another on Thanksgiving morning. Because I can.

The costume does not come with a trigger warning. So if I scare the bejesus out of someone — and oddly enough it does frighten some small children — they will just have to deal with it.

Running around in a turkey suit sure beats one of the alternative lives I could be having: Living in the anarchy and horror of Syria. Or suffering with the terrorism in France. Or Lebanon. Or Israel. Or Nigeria/Cameroon. Or Yemen. Mali. Iraq. Libya. Egypt. Afghanistan. And I’m only scratching the surface here.

There are many different ways to count your blessings. This is the way I want to do it. My original posting from 2011 is below.

–Eric “Turkeywitz”

—————–

Now you can see that I have a couple pictures here of me in a turkey suit, shot Sunday at a local Turkey Trot. And you might be wondering what the heck that has to do with blogging, or lawyering, or five-year anniveraries. And, you also might wonder if I’m nuts to put them up here, out of concern that it diminishes the seriousness of what I do for clients in the courtroom. Or that it might be seen by a potential client who will quickly hightail it elsewhere.

Glad you asked.

I see my fair share of human misery come through the doors with busted up bodies that shouldn’t be busted up. Anyone that deals with the consumer end of law will see variations on this theme, from divorce, criminal charges, bankruptcy, etc. And seeing those things gives me (and should give everyone) a greater appreciation for what we have. I know, from seeing it happen to others, that a car could blast through an intersection and instantaneously change my life and those of my family forever. Don’t say it couldn’t happen to you, because it sure happens to some people, who’s only fault might have been sitting patiently at a light. And it only takes a momentary lapse of attention on the part of a driver.

There is no limit to the number of ways that life could be quickly altered for the worse, and I’m not sitting in the middle of a war zone.

So I am thankful for each day that I get. And if I get the chance to dress up silly and run a 1-mile Gobbler race with a few hundred local kids, giving out gift certificates to a local cupcake shop for those that finish near my feathers, then yeah, I’m going to do it. And if I can have a few hundred adults in the 5K race chase the turkey, with a chance to win free entry into a little half marathon trail race I put together, well that is fun too. Community events are often like that. Fun. And it’s nice not just to participate, but to help create them.

In deciding to dress like a turkey for this event for the third year in a row — and with my name I’m the natural choice for this gig — I’m also mindful of Benjamin Franklin’s view of this particular fowl, as he advocated for it to be our national bird instead of the bald eagle:

For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.

I decline the opportunity to put on the “serious lawyer face” 24/7. You might see the suit and tie shot on my website, but you won’t see it on my blog. Here I get to let my feathers down.

I write this blog the same way I go through life. I try to enjoy it, while at the same time taking what I do for a living very seriously. I think that’s reflected in the 1,000+ posts that I’ve done. And yes, this is the same reason that I have for running the occasional April Fool’s gag.

This week is Thanksgiving. Look around you. Be thankful for what you have. And live each day to the fullest.

I hate to use Latin phrases in law, as it invariably sounds pretentious, but I’ll make an exception today. Carpe diem.

Now if someone could please cue up a copy of Alice’s Restaurant, I’d be most grateful. I hear Arlo may be coming to dinner….

November 18th, 2016

If Trump Tries to Register Muslims…

Jonathan Greenblatt, CEO of the Anti-Defamation League

If you came here today to read about personal injury law, fuggedaboutit.

The question today is, if Trump tries to register Muslims as he has previously promised to do, what will you do?

And one answer comes from Jonathan Greenblatt, the head of the Anti-Defamation League, who said, “As Jews we know what it means to be forced to register.”

As I sit here, I can’t believe I’m actually typing this stuff. But, in fact, one Trump sycophant, Carl Higbie, has cited one of the most reprehensible episodes of our last 100 years in support of the idea that this is a viable option: That being the internment of Japanese Americans during WWII pursuant to an executive order, and the subsequent Supreme Court holding in Korematsu v. United States that this was legal.

The decision is widely derided as one of the worst Supreme Court decisions ever. And while few could imagine it ever being upheld if the issue came before the high court again, you never know what happens when a charismatic person whips up hysteria. The fact that it is being discussed is mind-blowing in itself.

Greenbelt went on to write,

“I pledge to you that because I am committed to the fight against anti-Semitism that if one day Muslim-Americans are forced to register their identities, that is the day this proud Jew will register as Muslim. Making powerful enemies is the price one must pay, at times, for speaking truth to power.”

While no one knows right now what Trump will actually do — there is no shortage of “ideas” he spouted on the campaign trail that are devoid of substantive discussion — this is one that actually affects the very essence of our republic (and is one hell of a recruitment poster for Islamic militants).

With this as a prelude, we turn to the issue of whether we follow Greenblatt’s example if Trump actually carries through on his madness. Two arguments in favor. First, there is the poem of Pastor Martin Niemöller, who wrote “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.” You know the rest.

The second comes from Yad Vashem, the Holocaust museum in Israel. I remember being struck by something as I visited as a teen — the very first thing visitors saw was a row of trees outside the museum, called the Righteous among the Nations. Each tree was dedicated to and honored non-Jews who had risked their lives to save Jews during WWII. This was the thing, above all else, that the designers of the museum wanted people to see first.

I am not sitting here typing that Trump = Hitler. But there is no doubt that the alt-right now feels empowered, the KKK and American Nazi party are celebrating, and that there are likely to be substantial, additional instances of bigotry during the course of the coming administration.

As NYT columnist Paul Krugman wrote on Twitter:

So, Trump has selected a white supremacist as strategist, a racist as AG, and a crazy Islamophobe for Nat Sec. But we can work with him!

I am not so wise as to be able to predict the future, for I most surely did not predict that we would be here now as a nation.

It matters not one whit whether the attacks are against Muslims, African-Americans, Jews or any other group.

The lessons of Pastor Niemöller, and the lessons of those honored as the Righteous Among the Nations at Yad Vashem, should speak to all of us.

November 18th, 2016

10 Years of Blogging (A Retrospective, Part 2 of 2)

Yesterday I started a retrospective on 10 years of law blogging with some of my favorite posts. In this second of two installments I have more, culled from the 1,400+ that I’ve done.

But it’s worth noting a significant change that’s occurred since I started in 2006. While there may be many blogs, there seem to be fewer and fewer that actually interact with each other.

Or at least that’s seems to be true from the consumer end of the law: personal injury, criminal justice, immigration and the like. Many are little more than adjuncts to websites that are stuffed with keywords in the hopes that Google will find them, and then clients will, and they act like islands unto themselves.

The death of the legal blogosphere has long been discussed. Back in the “good old days” bloggers would be linking like crazy to each other and they built upon, or rebutted, the arguments and assertions of others.

Today? Twitter and Facebook seem to have taken a lot of the steam out of the blogosphere, as a short Facebook update or tweet now often takes the place of a blog posting with any depth. It’s fast and it’s easy.

It’s that speed and ease, of course, which also lends itself to less thought and more vacuous comments and conduct.

I’m still at it here, though I do so only when I have the time. I stand as guilty as others of taking things I might have blogged about, and simply shooting off a tweet that’s then quickly lost to the electronic ethers. As time allows, I hope to reverse that practice in the coming year.

One further note before the postings: I’ve tried hard to shy away from political posts and stick with my core issues. Tort “reform” obviously crosses that boundary.

Of late, however, there have been many Trump posts, as he acts like a one-man bar exam. Everything he does seems to cause legal issues. Some examples that I’ve addressed are: Supreme Court nominations, defamation, sanctions, labor law, and client-attorney privilege. I have no expectation that will change.

Without further ado, a few more of my all-time favorites:

———–

Scalia: “There Is No Right to Secede” — This had nothing to do with personal injury law, of course. But the story of how the late Justice Scalia wrote a letter to my brother, which then went viral 3+ years later, was really, really, really fun. Really.

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) — Some people use politics to further an ideological agenda. Some use it so just get whatever the hell they want. This post sits at the intersection of the two.

I think I’m required by law to use this photo when discussing April 1st postings.

On Becoming the White House Law Blogger — It’s been over six years since I got that April 1st appointment and the New York Times ran with it based on “blogospheric chatter.” Having that much fun shouldn’t be legal.

Outsourcing Marketing = Outsourcing Ethics (5 Problems With Outsourcing Attorney Marketing) — Legal marketing is inextricably intertwined with legal ethics, so if you outsource your marketing you have outsourced your ethics and reputation. Lesson: Don’t outsource you ethics and reputation.

Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?) — There are 86 posts here that are tagged with Tort “Reform.” This is one of them. Because I’m a sucker for using data and analytics instead of anecdotes to prove a point.

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law? — FindLaw printed crap, using the same name of my blog. And I called them out on it. Big time.

Barney Speaks Out (An Interview with the First Pooch) — After George Bush’s pooch bit a reporter, I did a a little legal analysis and then decided, what the hell, why not interview the dog? But of all the things that have happened to me as a result of this blog, being quoted on the editorial page of The Economic Times of India about the initial bite has to be the most unexpected. You can’t make this stuff up. Well, you can make parts of it up.

Joseph Rakofsky – I Have An Answer for You — From the first time I was sued (along with many other law bloggers), wherein I told the plaintiff to “Go shit in a hat and pull it down over your ears.” It’s a type of legalese.

Judge Rips Doc for “Huge Lie”; Perjury Prosecution Possible; Victims May Number in Thousands — When a judge ripped Dr. Michael Katz for what the judge called a “huge lie,” it led to this post and then a 7-part series on defense medical exams along with my call for a state investigation into insurance fraud perpetuated by the insurance industry itself.

Shooting the Messenger (I’ve Been Sued Again) — Reporting that prior story of the judge repeatedly calling Dr. Michael Katz a liar got me sued, for the second time. But you know what? Reporting on what a judge says is fair game. And yes, the suit was quickly chucked out by the court. Same as the first one. Lesson: Don’t bring a stupid suit against me — I will humiliate you.

About That Aunt Suing An 8-year-old — A story that went viral for no good reason other than a reporter wanting to write a skewed article about it for page views.

Death by Red Bull, An $85M Lawsuit, And The Money Shot – One of my pet peeves is lawyers that do stupid things for publicity that have the effect of poisoning the jury pool. The comments, by the way, are priceless.

New York Needs More Robust Anti-SLAPP Legislation — My op-ed in the New York Law Journal regarding frivolous defamation suits, and threats to bring them, that have the effect of stifling free speech.

That’s it for now, unless I come back with Part 3 of this two-part series. Stranger things have certainly happened.

November 17th, 2016

10 Years of Blogging (A Retrospective, Part 1 of 2)

I started this blog 10 years ago today, absolutely clueless about what I would do with it. I just liked to write and figured this would be a good arena to take oft-times complex subjects and break them down to their easy components. (The Purpose of the New York Personal Injury Law Blog)

After putting up that first little post I remember telling my webmaster about the six hits I got from that post. I found readers so quickly! He told me they were Bulgarian spambots.

Since then I’ve appreciated something that I didn’t appreciate back then: That the practice of law, even in a small niche like mine, has an extraordinary breadth. There was no real reason to limit myself to local judicial decisions, or trial practice and tips.

And so I have ranged far and wide into the subject of attorney marketing and ethics, Supreme Court nominees, tort “reform,” bar exams, confidentiality and privilege, insurance fraud by the insurance industry itself, and the First Amendment.

And I’ve written about running a few times, because it’s my blog and I get to make the rules.

Among the few rules that I actually try to follow:

No personal attacks. There is a difference between tearing into someone’s argument and an ad hominem attack;
No gratuitous coverage of local incidents where people are likely to hire lawyers due to injuries;
No self-aggrandizement, or this blog would look like an advertisement, and worse yet, be dreadfully dull; and
Try hard not to do “me too” posts that merely repeat the news/thoughts of others.

Along the way of writing 1,400+ posts, I’ve had over 2M+ page views, and have stumbled into the pages of the New York Times, Wall Street Journal and Washington Post, among many media outlets. The NYT ripped off one of my stories, and the WSJ figured out how to do so also.

I’ve written a few op-eds and appeared in editorials. I’ve done television interviews, given lectures, and appeared on the sides of busses in a NYC Marathon ad.

This humble little site has been viewed in the White House, Supreme Court, Justice Department and CIA, and been seen in 200+ nations, according to Google Analytics. I’ve been sued twice for defamation, and been threatened several other times. The blog was part of the inaugural class of the Law Blog Hall of Fame run by the American Bar Association, along with just nine others.

In other words, it’s been a bit of an adventure. As I sit here typing, I can’t keep from humming along on what a long strange trip it’s been.

Today and tomorrow I’m going to reach back into the archives to link to some of my favorite posts. And when I say favorite, I don’t mean the ones that received the most number of hits. I mean the most fun to write, or ones that I thought important regardless of what others thought.

Because if you don’t enjoy the experience of writing (regardless of whether you do it well), or believe there is a point to what you are doing, then you shouldn’t bother blogging. You’d be miserable, and worse yet, your words would suck. If you’re not inspired to write, it will be abundantly clear in the finished product.

And so, without further ado, Part 1 of some of the babies I enjoyed birthing:

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees — This 1997 post hits my list because the suit was brought by a big white shoe firm, and the firm utterly screwed up the simple act of drafting a complaint. And they did so on behalf of a big shot judge for a suit destined to attract media attention. Lesson for laywers: Bigger law firm does not mean better, and if you don’t know what you’re doing, ask.

Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court — Nine years ago a medical blogger decided to live-blog his own malpractice trial, and it was painful on many levels. His posts and the lawsuit attracted very wide attention at the time in the legal and medical blogosphere, and ultimately landed on the front page of the Boston Globe. Lesson: Don’t write anything you’re afraid to see on the front page of the paper.

Who Sits Jury Duty (The Turkewitz Beer Test) — Jury selection is an art. Since I’m not a great artist, this is the way I do it. Your mileage may vary.The Bubbe Maisse Report (aka “Judicial Hellholes”) – Every year the tort “reformers” come out with a “report” to declare judicial hellholes. The problem? It’s merely a collection of favored anecdotes. Does the press care? What do you think?

Supreme Court Grants Cert in “Fantasy Baseball” Case; Three Justices Recuse Themselves Due To Participation in High Court League — I had the idea to write this 2008 post about a month in advance of April 1st, then kept adding to it. And adding. And adding. I loved writing it, and hoodwinked a few folks. And the premise is still good regarding the circumstances by which SCOTUS judges should recuse themselves.

It was 20 Years Ago Today — Lessons from an around-the-world backpacking trip I took in 1988-89.

Hudson River Plane Crash To Test New York’s New Attorney Ethics Rules? — I had a problem when New York amended its attorney anti-solicitiation rules: How do I write about those rules in practice after a calamity, without it looking like its a covert way of using this blog to solicit? This Miracle on the Hudson splash landing by Captain Sully solved that problem for me, and I’ve been writing on ethics, advertising, marketing and solicitation ever since. The splash landing also had a few other benefits.

As Seen On Oprah! (Kinda, Sorta, Almost) — Back in 2009 Oprah wanted some x-ray images that I have for a piece on medical errors by Dr. Oz. Her staff proved to me that Oprah succeeded despite them. I just enjoyed writing this, OK? Do I really need another reason? (Side note, Diane Sawyer had no problem striking a deal with me a few years later.)

Your Bar Exam Answer Sheet Is Gone — Now What? — This fun little post about the time my bar exam results vanished keeps getting hit, as bar examiners invent new ways to give test takers a little extra shot of anxiety. Good preparation for life, I say. And it spawned a series of subsequent posts on bar exam horror stories. If you has the misfortune to stumble on this while prepping for the test, you’re welcome.

The SCOTUS Nominee and the Tissue Box Test -– Supreme Court nominations are always important (too important), and this is my gripe on the lack of judges with real world experience dealing with individual clients.

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? — A post that the Times ripped off a month later, without attribution, and forced a response from the White House.

Do I look lawyerly?

Five Years of Blogging (And Happy Thanksgiving) — A little explanation as to why I do what I do, given on the 5th anniversary of this blog. While in a turkey suit. And since that particular day happens to be on the immediate radar, I think it’s time to dig that suit out of the basement.

Blawg Review #134 (NYC Marathon Edition) – Back in the day, Blawg Review was a thing, a weekly round-up of the best that the legal blogosphere had to offer. So I was delighted that so many bloggers elected to tell me what they were writing about that week while we ran the NYC Marathon. Oddly enough, I was able to coerce more bloggers to come to my house to meet Arlo Guthrie at Thanksgiving, and got The Bogeyman to come with me to the homes of bloggers on Halloween, in a couple of subsequent Blawg Reviews.

Tomorrow, some more posts as I continue to naval gaze at my little creation.