June 1st, 2016

Do You Solemnly Swear…(Sworn in at SCOTUS)

The evening before…

And so it came to pass, on the 31st day of May, in the 239th year of our nation’s independence, that my name was called on a motion for admission to the bar of the Supreme Court of the United States.

Chief Justice John Roberts, in his infinite wisdom, granted said motion as I stood in the well of the courtroom.

I wrote last week of some ambivalence about this endeavor that was planned, with a group of 30 people from my listserv, as I struggled to justify an actual reason for traveling to Washington, D.C. for this appearance. That ambivalence existed because I’m not handling any case, at the moment, that has an issue that might land me there as counsel.

But I discovered the reason the night before, as I strolled over to the Court in the fading light of day with my 21st Century Daughter and took the photograph you see here of this magnificent temple of Justice, built of gleaming white marble.

The prior days had been filled running around D.C. as my daughter explored college campuses, we darted into the Smithsonian, watched part of the Memorial Day parade, saw and heard roaring Harley’s in town for Rolling Thunder and silently explored memorials.

Yesterday morning I went, with my daughter and listserv buddies, into the courthouse. We were escorted as a group to one of the grand conference rooms abutting the courtroom, and we waited. Our guests were then removed and seated in the court’s gallery.

Want to know what the grown-up, lawyer equivalent is to a kid entering a candy store? Yes, it is excitedly waiting to enter the nation’s highest court to be sworn in.

A few minutes later, we were directed in, past the seated gallery, to seats inside the courtroom well — the same courtroom where my father was sworn in, in 1961, Chief Justice Earl Warren presiding.

In came the justices, at 10:00 a.m. sharp, taking their seats. I scanned the familiar-from-the-news faces. Kagan on my far left with Ginsburg near by, and Sotomayor on the right with Breyer near by. The center was filled with Chief Justice Roberts, flanked by those with seniority, Kennedy and Thomas. Only Alito was missing. And, of course, missing was a seat for any ninth justice.

C.J. Roberts read a decision, from United States Army Corps of Engineers v. Hawkes Co., Inc. (8-0, with four opinions).

Five minutes later attorneys who were already members of the SCOTUS bar, one after another, rose to address the court and make a motion that their groups of attorneys be admitted.

When our turn came, a somewhat surreal moment occurred, as we were addressed — officially by the highest court in the land — by our jokey listserv name. A group not officially associated with any bar association, university or other formal organization, without any legal structure, dues or secret handshake. Simply a private listserv for those who work in a similar niche of the profession: New York based trial lawyers.

Appellate wordsmith Jay Breakstone, who has guest blogged here on occasion, and who set up the group admission to the court, made the motion, calling us each in turn, as we each rose. And C.J. Roberts had the clerk swear us in.

By 10:13 it was all over.

I tried to exit slowly so that I could admire the carved marble friezes up by the ceiling and the magnificence of the courtroom. The court officers would have none of that, however, hustling us all along.

Back to our conference room.

Then a little Brooklyn gal named Ruth Bader Ginsburg entered. She of diminutive physical stature and towering reputation, to talk with her fellow New Yorkers. She asked about our listserv, heard how solo and small practice lawyers can pool intelligence about cases and the law, and then sat for group photos.

And the reason I made this journey was never more clear. While it is conceivable that I could one day find myself in this court as counsel, the odds are not exactly in my favor. Precious few attorneys ever have a case that makes it this far, and the stomach to stand in the well and argue, and you need to have both.

But the reason we do things sometimes, is simply for the experience of having done it. That experience could be a movie or museum, an opera or sky dive. We may take away nothing tangible, other than, perhaps, a ticket stub, photo or certificate. The joy is in the experience itself.

And as experiences go, my dear reader, I want you to know that being sworn in to the Supreme Court bar is a tough one to top ~~for any attorney~~.

(Part 2 of this experience follows here: A Lawyer’s Listserv Gets SCOTUS Recognition)

Our group photo, with the Notorious R.B.G.:

May 31, 2016, a small portion of our listserv, with Justice Ruth Bader Ginsburg

May 27th, 2016

Anticipation — Of Getting Sworn in to SCOTUS

One of my fantasies failed to materialize: I had hoped that, over the course of the last couple months, some judge would demand that I appear in court on May 31st. “Sorry judge,” I was prepared to say, ” I already have an appearance that day. In front of the Untied States Supreme Court.”

When the opportunity presented itself about two years ago for a group of us to go down to 1 First Street in Washington, DC and be sworn in to the nations’ highest court, I said yes.

Why? I hadn’t figured that part out yet. But I just assumed that over the course of the ensuing two years I would come up with a good excuse for this road trip.

I have no case pending with constitutional questions that would require it. I have no reason to think such a case will come my way (unless I get sued again for defamation on such brand new theory, that no one ever has ever tried before, which less likely than getting struck by lightning).

So why am I doing it?

Probably for the thrill of it since I can’t seem to rationalize it any other way. Other than, to perhaps, think that one day I will look back at this as one of the good old days, as I’ll have one of my rug rats with me to watch.

May 26th, 2016

Hulk Hogan’s Ambulance Chaser

Terry Bollea, aka Hulk Hogan, takes the oath in court during his trial, via Reuters

The story of ambulance chasing after the Hulk Hogan case is buried 22 paragraphs into the New York Times article. But that is where I am going today.

As many of you know, Terry Bollea (a/k/a Hulk Hogan), sued Gawker over the release of a sex tape that was made with the wife of his (former) good friend. The jury came back with a whopping $140M verdict.

There were two pieces of news on the case: First, the trial judge didn’t reduce the damages. Nor was the case tossed out on First Amendment grounds. Both of those issues, for sure, will be on appeal, though Gawker must post a $50M bond to get there, which may bankrupt the website.

But that news is well covered elsewhere. So too was the news that Silicon Valley billionaire Peter Thiel was bankrolling the lawsuit. Thiel, it seems, has a personal vendetta against Gawker dating to the time that it outed him as gay on its Valleywag blog.

Don’t worry, I’m going to get to the part about the ambulance chasing, just as soon as I finish bringing you up to speed on motivation:

From yesterday’s New York Times, where Thiel gives his first interview on the subject, he said:

“It’s less about revenge and more about specific deterrence,” he said on Wednesday in his first interview since his identity was revealed. “I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.”

Mr. Thiel said that Gawker published articles that were “very painful and paralyzing for people who were targeted.” He said, “I thought it was worth fighting back.”

OK, and from motivation we move on to funding lawsuits. Litigation finance is big business as it may be difficult (or impossible) for clients or lawyers of modest means to bring suits without being able to pay experts and other costs. They are generally frowned upon by lawyers as a last ditch effort to continue, due to the very high financing charges. But if needed they do level the playing field when litigating against insurance companies and other well-financed companies.

These finance companies come in at the request of counsel.

So the New York Times finds it important to get a couple of law professors (at least one of which has apparently never set foot in a courtroom or even been admitted to practice law) to dutifully quote in order to make it looks like “experts” have weighed in:

“If you really do have concerns about the merits of this case, finding out who bankrolled it doesn’t really help you at all,” said Mary Anne Franks, a professor at the University of Miami School of Law. Absent any indication that there is something unlawful about how the funding took place, she said, “you would still need to show that there’s something substantively wrong with the ruling.”

But Thiel was a different sort of financier — he went looking for the client.

Thiel tells how he solicited the case, and claimed this was normal:

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.

A couple things here: First, this is not “very similar” to how a plaintiff’s lawyer on contingency works. Because what he did is solicitation, and the vast, vast majority of lawyers do not contact victims. Solicitation is ambulance chasing.

The second issue, and the reason I write today, is that there is a parallel here to the issue of non-attorneys owning part of a law firm, a matter that has been discussed in various jurisdictions (and which is, thankfully, not allowed in New York).

Non-attorneys owners, after all, are only needed for their money to fund cases and overhead.

While profit is not the motive for Thiel in the Hulk Hogan case (he positions this as a public interest lawsuit), this case is an outlier. But this particular outlier, has important lessons.

This particular funding case — where the funder solicited the client — is an example of what will happen if you allow non-lawyers to have ownership of law firms. They will solicit. When the plane goes down, when the bus crashes, when the horror hits the front page, the non-lawyer owner may go hunting for business. I wrote about this twice before, both in 2011:

North Carolina to Allow Non-Lawyers to Buy Interest in Firms? (Lousy Idea)

Jacoby & Meyers Sues To Sell Themselves to Non-Lawyers (Lousy Idea)

While New York has a 30-day anti-solicitation rule after a mass disaster, non-lawyers are not bound by Rules of Professional Conduct. And if they we allowed non-lawyer ownership, and they were told to comply with the Rules, what happens when they violate it? Disbarment? The non-lawyer does not lose his livelihood. And his lawyer partners would no doubt say, “Oh my lord! We had no idea!!!” And like that, an intentional ethical violation is downgraded to mere negligence.

So Peter Thiel, in his solicitation of Hulk Hogan, shows the potential future of law if non-attorneys are allowed in the door to own parts of law firms: They will have a vested interest in getting the case, and their solicitations will be to the detriment of the bar’s reputation and the public’s faith in the justice system.

If/when someone feels the need to reach out for counsel, there are plenty of ways to do it. But reaching in, while a family is in shock or grieving, is a recipe for inviting in hustlers and con artists, and seeing people victimized a second time.

May 24th, 2016

Planned Parenthood Sued Over Shooting, for Negligent Security

Planned Parenthood, Colorado Springs

At first blush it seems outrageous: Sue Planned Parenthood after it had been attacked by a gunman in Colorado Springs? If you weren’t following the news last November 27th, Robert Dear, a 57 year old madman, opened fire in the parking lot and then went inside.

Three people were killed and nine were injured over the course of a five-hour standoff before he surrendered.

But can you blame Planned Parenthood, as victims wish to do now in a lawsuit just filed? (Wagner v. Planned Parenthood) Isn’t the gunman the reason those people were killed and injured?

Well, just because the gunman may be responsible doesn’t mean others might not bear some responsibility also.*

And the key principle is this: Property owners owe a duty of reasonable care to those on the premises to keep it safe.

If you owned an apartment building, for example, you would be expected to provide locks. And if the lock is broken, and you dilly-dally a year in fixing it and someone breaks in and rapes/beats/kills a resident? You may be found to have violated that duty of care for not acting reasonably. Locked doors deter and protect.

If the attack happened before you even knew of the broken lock, you would expect a different result. Reasonableness is the touchstone.

If the building were in a high crime neighborhood, a week delay may be unreasonable. In a neighborhood that hasn’t had a break-in since the time of the Great Flood? A week may seem to be perfectly reasonable. It matters what is foreseeable.

So in the case of the Colorado Springs Planned Parenthood, the issues are what kind of threats did it have and what type security did it have? The complaint says many threats but almost no security.

That issue — whether security existed or not and the extent of its existence given threats — will go to the heart and soul of the suit.

The issue that will follow, of course, is causation: What good would the security have done in the face of a crazed gunman. Wouldn’t he get in anyway? One would think that, with locked doors or other means of stalling him, others inside the building may have had a better opportunity to call for the police or to escape.

Negligence and causation are the two fundamental issues of any suit for negligence.

Since I work without any direct knowledge, and just a couple of news articles, I mean only to write broadly. I do so because this is exactly the type of case for which knee-jerk political responses are possible.

But there aren’t really any political components in such a suit. It’s simply a matter of whether reasonable security existed given whatever threats may have been known, and the degree to which reasonable security would have helped.

It would seem to me that, if the clinic did not have, at a minimum, a good locked door and buzzer system, then Planned Parenthood’s insurance company should be getting ready to write checks. Whether more than that is needed, may well be a question for a jury one day.

*(I write generally about principles involved here since I’m not admitted in Colorado.)

May 23rd, 2016

Uber Cars are Uber Dangerous (The high cost of cheap taxis)

My dad told me a short story this winter, when three grandkids flew down to Florida to see him. When ready to go to the airport, he offered to call them a taxi. Not needed, they said, we’ll just Uber!

The cars arrived quickly. They were cheaper than taxis. Dad was amazed.

So what is the cost? No, I don’t mean the cost of the airport trip; I mean the cost to society.

The cost is this: Far more people are likely to be injured and killed by companies such as Uber that rely on apps and speed than by regular taxis or car services. And the worst part is, it’s part of the business model.

Uber drivers, you see, must respond quickly to the incoming notification on their smart phones — reportedly within 15 seconds. Otherwise, they lose that fare. Repeatedly make the mistake of failing to quickly respond? Then you lose your ability to work for Uber.

This means that Uber drivers must be diddling with their dinging smart phones while driving and responding. Instead of looking at the road. The Uber business model not only encourages dangerous distracted driving, but actually thrives and profits because of it.

How dangerous is distracted driving? It’s three times more dangerous than paying full attention. From the Viriginia Tech Transportation Institute:

The study, entitled The Impact of Hand-Held and Hands-Free Cell Phone Use on Driving Performance and Safety Critical Event Risk, shows that engaging in visual-manual subtasks (such as reaching for a phone, dialing and texting) associated with the use of hand-held phones and other portable devices increased the risk of getting into a crash by three times.

Car and Driver did a test for texting/reading while driving, and compared drunks with a .08 blood alcohol level with those who are sober. Time and again, those who were texting, or merely reading their texts, took longer to hit the brakes and stop their cars. And when I say longer, I mean the drunks were quicker to the brakes than the text readers. And these were people on a straight road track who knew they were being tested.

Let’s repeat that: Driving while reading texts is more dangerous than driving while drunk.

The conclusion is inescapable: Uber cars are uber dangerous.

There is a deadly cost to getting Uber drivers to their customers so quickly. And this is a cost not only to passengers, but also to others on the road — most significantly of all, to pedestrians who are not enveloped in that big metal cocoon with seatbelts.

Now take those distracted Uber drivers and put them in New York City, where such vehicles are currently allowed (though they are not yet allowed elsewhere in the state). Our street life hums and thrives on pedestrian traffic.

Uber is significantly more dangerous when people are walking about. The injuries such drivers inflict on pedestrians will likely be far more catastrophic than others, due to the delays in responding to danger by distracted drivers. In other words, an uber accident. (Though collision is the proper word.)

The first lawsuits against Uber drivers are now percolating through the system. They will raise many issues, a few of which are:

Are the drivers employees of Uber or independent contractors? You can be sure Uber wants to call them independent to shield itself from liability as being responsible for their employees’ actions. But just because they want it doesn’t mean they will get it.

Is the Uber app a defectively designed product, as it actively encourages distracted driving? Is it inherently dangerous?

Can Uber be held liable for simply sending messages to people that they know are behind the wheel and moving? I covered this subject last month, with respect to potential liability for friends sending texts to people they know are driving.

Knowing full well the danger, will juries decide that such conduct is reckless, and therefore subject Uber to punitive damages?

Are the issues interesting? You bet they are. For a lawyer. Not so much when you are splayed out on the blacktop waiting for the ambulance.

But perhaps more importantly, Uber will likely go running to the Legislature complaining about its insurance rates — as it’s inevitable that their drivers will get in more accidents, that the injuries will be more severe, and their insurance will obviously go up as a result. Insurance goes up for drunks, doesn’t it?

Did I say “will” be running to the Legislature? As it happens, they are running there now. A piece in Politico/New York discusses extensive lobbying efforts going on now for them to expand outside New York City. And the bill must go before the insurance committee.

One hopes that, if such bill does appear, and does go before the insurance committee, that legislators pay particular attention to the fact that Uber’s business model is exceptionally dangerous, and that the injuries they inflict to others will be far more catastrophic due to the delays in responding by distracted drivers.

The most dangerous drivers are probably those cruising for fares and waiting for the phone to ding.

If the technology is not going to be outlawed because it’s just too damn dangerous, then Uber (and Lyft and others of their ilk) should be made to carry significantly more insurance than others to cover the costs that they will inflict.

It isn’t enough for Uber to say, “let the injured and killed be damned so that we can make more profit.” And it isn’t enough for the victims and taxpayers to be left paying for the damage that the distracted drivers inflict.