February 14th, 2016

Scalia’s Most Important Decision

With the passing of Justice Antonin Scalia yesterday, the country immediately went into overdrive discussing his successor.

As it happens, one of the first posts on this blog discussed the worst Supreme Court decision ever, and Scalia was a part of it.

While many folks consider Plessy v. Ferguson, Dred Scott and Korematsu as the worst, there is one that, I think, clearly supersedes them.

And that is Bush v. Gore, for the simple reason that every other SCOTUS decision could ultimately be overturned by We the People. Scalia was one of the five votes in the per curium opinion.

Laws can be changed. The constitution can be amended. But what happens when the act of democracy itself is suspended?

In that case, then power has been removed from the citizenry.

There was, at the time, only one way to deal with the Florida debacle: Every legally cast vote must be counted. But Bush v. Gore suspended the act of counting votes.

And this, therefore, must stand as part of the Scalia legacy.
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P.S. — Scalia took his place in Turkewitz family history 10 years ago when he responded to a letter my brother wrote him regarding the issue of secession. You can read it here.

February 13th, 2016

The Huntington Post Office Did WHAT?!

Huntington Post Office, Long Island

This story comes to me from an incident this week at the post office in Huntington, New York, out on Long Island.

We all know about postal workers, don’t we? So let’s add this to the collection:

From Carol Schlitt:
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My youngest son, John, has Down Syndrome. He turned 20 today. After school each day he works in my office and walks to the local post office to take care of the mail.

He is excellent at his job and he loves doing it.

Yesterday, he told the postal workers that today was his birthday.

When he arrived at 4:45 this afternoon, everybody in the post office broke into “Happy Birthday” and presented him with a cake.

It seems remarkable to me that postal workers would do this. It made me regret complaints I’ve made about postal workers over the years. It also made my day that my son is so accepted and loved in our community.

I just wanted to share a “feel good” story and make us re-think some of the stereotypes that so many of us carry around.

February 12th, 2016

Time is On My Side

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

Yesterday, I listened to a livestream of a suicidal and paranoid member of the Bundy gang surrender in Oregon. He said he was holding a gun to his head as supporters frantically tried to reason with him as he stumbled through a slew of conspiracy theories.

Think about that — I’m in New York City listening in on a phone call with an armed and suicidal insurrectionist in a remote part of Oregon. What would Benjamin Franklin think? How long would it take for him just to comprehend such a concept?

What a short, strange trip this whole Internet thingy has been.

I first connected via Prodigy, circa 1992. When AOL took the world by storm with its proprietary site in 1993, I was 33. Using their instant messages, you could talk with someone from Prague, in real time, as if that person was sitting in your own building. It was amazing. Revolutionary.

I knew this was going to be huge when hourly charges for dial-up service went to unlimited in 1994, and the site was so overwhelmed that folks couldn’t connect. I still have an AOL 2.0 floppy disk. I use it as a drink coaster.

The World Wide Web followed shortly thereafter.

A huge milestone in its development was the 1998 release to the web by Ken Starr that dealt, in part, with the infamous cigar that Pres. Bill Clinton shared with Monica Lewinsky. I, and countless others, read it online immediately after its release. There was no need to wait a day for the newspapers to print it and distribute it for people to start having intense discussions.

Any semblance of the 24-hour news cycle that Ted Turner‘s CNN and its progeny hadn’t already taken down, was now gone for good.

My first crude website went up in 1999, and this blog followed in 2006. YouTube, Facebook, Instagram, Twitter, Snapchat and more all followed. Again, what would Ben Franklin think?

When I felt my midtown Manhattan building rumble in 2011 as I was sitting at my desk, I turned to Twitter, searched #earthquake, and knew within 30 seconds of the end of the quake that it had been felt from Georgia to Canada. Amazing.

We no longer wait, it seems, for anything.

Except for the law.

Much of what I do, I do the old fashioned way. It is slow and sometimes ponderous. It is the nature of litigation and trial. The world may move ever faster and faster with the explosion of technology, but the pace of the practice of law doesn’t really change.

There might be tinkering around the edges, but fundamentally it is the same today as when I started. Sure, I no longer need to bring a roll of quarters with me to the courthouse while on trial, I can electronically file complaints and motions, and I can bring my entire file to court with me on an iPad. That’s nice; it’s convenient. Of course, as Keith Lee wrote yesterday at Above the Law, technology is just a tool.

But while the expectations of jurors may change — something that law and order TV shows also contribute to — the reality is that the lawyer’s work hasn’t.

You still have to tell the story. And to do that you need to find the witnesses, do the investigations and plow through the records. You need to lay foundations for evidence, build your examinations upon important points, and know what it is you need to do, and where it is you need to go.

There may be a straight line that gets you from Point A to Point B, but just as often it is otherwise, rambling around from here to there to get to where you want to go.

Telling that story usually takes time. Time that jurors, especially younger ones, may not be attuned to.

What to do about this internal conflict between today’s expectations and old-fashioned lawyering? Relish the concept when you finally get to meet your jurors. Welcome them back to another era, and another pace, when things moved slower. If you want to get the job done. (Because you have no other choice.)

Back in September, 2007, I used an obscure quote by Mark Twain to describe the process of slowly telling the story. Given Twain’s mastery of storytelling, I figured he would be a good source.

And so, as the world races faster and faster in making raw information available, we turn back to Twain on the art and flow of storytelling:

Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.

That difference in the expectations of people also came into sharp view in the Oregon standoff, where I started this piece. There were some folks who wanted the buildings that the Bundy gang took over to be immediately stormed. Now! Now! Quicker! Faster!

The Department of Justice, however, took its sweet time. Because time was on its side. And it was a highly successful strategy.

Sometimes we need to move fast. But not always, and fast should not be the default. No matter what kind of technology comes spinning our way.

OK, cue up some Stones to close — though lord only knows what Ben Franklin would think of Mick:

https://youtu.be/QEqlBveP_Rg

February 6th, 2016

Ambulance Chasing the NYC Crane Collapse, Via Baton Rouge [With Greek Chorus!]

On Friday a construction crane collapsed in Manhattan that was dramatically caught on video, killing one and injuring others. And within hours, a law firm was boasting that it had a lawyer “on scene.” I shit you not. [Uh oh, someone is gonna get filleted and fricasseed, I can smell it coming!] From a legal perspective, it was quite the interesting show the firm put on.

Now if I don’t write about such a naked case of ambulance chasing here, who will?

…Entering, stage right, the Fisher Injury Lawyers [golf clap] apparently based in Baton Rouge, Louisiana, and led by Bryan and Tommy Fisher. [Cool! Will this be our latest contestant on How To Embarrass The Legal Profession?]

This four-lawyer firm also claims offices in Texas and New York. The New York firm is staffed by a puppy lawyer admitted to practice in 2014. [Huzzah, huzzah!]

And awaaaay we go….Breaking on Twitter:

Fisher Injury Lawyers on Scene of New York Crane Collapse.

[Lawyers on the scene! No way! Often the actual chasers are “investigators,” so the chuckleheads can try to cover their tracks! These guys are awesome! No subterfuge!]

And not just Twitter. Oh no. Not in the age of social media. Also on Facebook. And their website. And LinkedIn. The Fishers seem to have covered all the bases.

Except, of course, for that one little base that deals with New York’s anti-solicitation rules, which the Fisher Injury Lawyers of Louisiana seem to violate. [Oh no! I bet they didn’t see that coming!]

You would think that if lawyers were going to open a New York office and put a young attorney in there they would at least be familiar with our rules of professional responsibility on advertising and solicitation, right? [Hey, wait, I’m noticing a bit of snark here!]

These rules are, essentially, the very definition of ambulance chasing, a subject that I’ve written about many times before. [I wonder if the Fishers have ever read any of those pieces? I kid!]

A short review if you are reading this blog for the first time :

New York has a 30-day anti-solicitation rule in our Rules of Professional Conduct. It goes like this:

Rule 4.5(a) In the event of a specific incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm representing actual or potential defendants or entities that may defend and/or indemnify said defendants, before the 30th day after the date of the incident…

[Hey! Maybe they thought it was a 30-second anti-solicitation rule? Simple misunderstanding! Could happen to anyone!]

When I wrote about this in December 2, 2013, it was Proner and Proner that was running ads after a train derailment in the Bronx.

And at the risk of repeating myself [Take the risk! Take the risk!], soliciting by sending a lawyer to the scene and with targeted ads on a website, Twitter, Facebook and LinkedIn, seems to me to fall pretty damn squarely within the meaning of the Rules to be solicitation as this is not generic advertising but targeted to a specific group of involved people.

[Oh no, this is getting ugly, these guys are going to win a prize for sure! I hope, for their sake, there isn’t another legal cite!] So here is the cite for the definition of solicitation:

Rule 7.3(b) For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain…

The initials of the young lawyer who apparently went to the scene are C. T., but because he’s so young and I presume doing the bidding of his boss, I elected not to use his name. [I can see it in the graphic! I can see it in the graphic!] Admittedly that’s a close call, since he should know better anyway. It’s a good example, though, of a lawyer that must learn how to say no. [You didn’t name him in a Google-friendly way?! You’re getting soft!]

It’s also worth noting that out-of-state lawyers are bound by our code of professional responsibility (Rule 7.3(i)):

(i) The provisions of this Rule shall apply to a lawyer or members of a law firm not admitted to practice in this State who shall solicit retention by residents of this State.

[Is this the part where Bryan Fisher says, “Oh shit!!!”? I’m sure he won something for this escapade!]

Now what would happen if Fisher Injury Lawyers should somehow procure a client by this chasing (and then, perhaps, flip the case to local counsel in exchange for ⅓ of the fee)? The answer, I think, is that a judge could/should take a close look at those Rules, and assuming that judge agrees with me, take away any legal fee as one can not profit by violating the Rules. [Oh man, if that happens he’s gonna need a tushy doctor to repair the new hole!]

As for any local counsel that should be contacted about a referral (in any case), one of the questions we should always ask is, “How did you get the client?” There are no doubt many that would turn a blind eye to the original source, but the source of clients is a recurring problem not only with newfound referring attorneys, but with the hordes of “find a lawyer” sites that may be using unethical black hat techniques to procure “leads.” [You mean one of them might one day need a tushy doctor too?]

It’s a good time to remember that ethics and marketing are in a deep embrace. Lawyers must be careful who they climb into bed with, because outsourcing your ethics is a communicable disease — whatever vice your agent commits for the business falls to you also. Such is the nature of agency.

Does anyone want to be the test case in the Appellate Division for lawyers outsourcing their marketing (and ethics and reputation) to others? [Hands? Hands? Can I see a show of hands?]

It’s also worth noting that any firm with even a basic knowledge of New York practice would also know that you can’t use a trade name like “Injury Lawyers” (Rule 7.5(b)).

But really, the core of this is ambulance chasing. [Ya’ think?] I bring up the other issues only in the context of some lawyers believing it’s OK to just waltz into other jurisdictions without really having a clue as to how they actually operate.

I contacted Bryan Fisher for comment on Friday, the day he published his advertisements — using Twitter since that is one of the social media platforms he elected to use [Nice touch!] — and he has not yet responded:

And so, into the Personal Injury Hall of Shame I hereby induct the Fisher Injury Lawyers, based primarily in Baton Rouge, Louisiana,[Winner! Winner! We have a winner!!!] for its sterling effort to drag the legal profession down into the muck. And having the public (jurors) think even worse of us and our clients than they already do. [Aha! So that’s why you’re writing about them!]

And if they happen to be reading this [Oy vey! Are they gonna be pissed at themselves for having done this!], you guys have four things to hope for:

Everyone is talking about the Super Bowl and doesn’t give a damn about this;
New York’s disciplinary committees simply don’t care about enforcing the 30-day anti-solicitation Rules, and are more interested in Lady Gaga botching the lyrics of the National Anthem by swapping out “gallantly streaming” for “valiantly streaming;”
This blog was so poorly written due to all the Greek Chorus nonsense, that no one took its underlying message seriously [Hey! You wanna complain, blame the casting director!]; or
This blog is so poorly read by others that the issue never comes to their attention.

(hat tips to Gerry Oginiski and Samson Freundlich)

February 5th, 2016

Alcohol and Lawyers — A Test

Graphic from Washington Post article.

An ugly new study came out showing that lawyers have a huge drinking problem. As per the Washington Post:

More than 20 percent of licensed attorneys drink at levels that are considered “hazardous, harmful, and potentially alcohol-dependent.” That’s three times higher than the rate of problem drinking among the general public.

That’s a huge number. And since the survey covered over 12,000 lawyers, it is impossible to simply dismiss. It is published in the Journal of Addiction Medicine.

Lawyers, it seems, also have a higher incidence of depression, as per the report. The research conclusions were:

Attorneys experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations. Mental health distress is also significant.

You can read the summary at the Washington Post, and the explanations for the results related to the high-stress environment that lawyers work in. Or you can read the actual study if you don’t want to see a reporter’s distillation of the study.

More importantly, you can take the alcohol test itself to see if you are one of those 20%. The test is an easy 10-question survey you can self-administer, and you can read about the significance of your own score at the link above: