May 18th, 2015

Snarking at Others – A philosophy

It may have occurred to some readers that I take others to task over various foibles or ethical issues a bit too often. Maybe, but that snark has some pretty sharp limits and I want to briefly explain them.

If the story deals with someone acting or filing suit in such a way that indicates the person might not be in their right mind — like the recent suit by the an individual acting on behalf of God, and His Son, Jesus Christ against all homosexuals — then I don’t write about it. (Except just there, but without name, or link, because I need an example.)

You see this in pro se suits with some regularity. In a nation of 300 million people and a country that (usually) takes pride in keeping the courthouse door open to those who believe they’ve been aggrieved, this shouldn’t come as a surprise.

While such stories may be amusing to many, I don’t see them serving any larger purpose. It isn’t just being politically correct regarding someone that may well need a mental health professional, but that the anecdotes serve no broader purpose. There is no lesson to be learned.

On the other hand, if the targets of the stories are lawyers or other individuals who are capable of fending for themselves, I see no problem, so long as there is a point to be made.

That’s it, my philosophy as to who I think it’s fair to target and who not.

May 15th, 2015

Chasing the Amtrak Crash

Dean Weitzman from “My Philly Lawyer”

You have seen this act before, dear reader, but perhaps never so blatantly. It’s the lawyer who chases the mass disaster crash, a/k/a the ambulance chaser. It’s the lawyer that, by doing so, smears the names of all others in the lawyering profession.

Today’s story comes up because Dean Weitzman, managing partner of the Philadelphia firm Silvers, Langsam & Weitzman, decided it would be a swell idea to send out a press release to the local press letting everyone know that they would be accepting cases from the Amtrak crash. (Which is not an “accident” by the way).

He wrote, among much personal agrandizement, that is firm would be:

available to provide representation for victims and injured persons in last night’s Amtrak derailment in North Philadelphia.

Gee. Ya’ think?

And he also wrote that:

Dean Weitzman is also available to media outlets to give analysis and discuss what happens next.

The firm is, as I understand it, (in)famous for slathering Philly with its ads, using the moniker My Philly Lawyer.

It was exactly this type of grotesque chasing after cases that led New York to create its 30-day anti-solicitation rule (and I presume to a similar federal 45-day rule for airline disasters). In the immediate wake of the 2003 Staten Island Ferry disaster that killed 11, some lawyers ran to the Staten Island Advance to place ads for the next day.

But there were still bodies on the boat when many of them did that.

This type of wretched behavior has repercussions. I see it when I step into the jury room to select, as do others in the profession. Calling the jury pool cynicism deep would be an understatement.

If the cynicism came solely from insurance company propaganda, it would be one thing. But when the smear comes from your own ranks, then what? Then it becomes the obligation of others in the profession to express their contempt for the practice and issue a complete disavowal of the conduct.

Let there be no mistake about my position here: Dean Weitzman and the firm of Silvers, Langsam & Weitzman do a grave disservice to the cause of justice and to those who have been injured. By chasing ambulances in this fashion they perpetuate an ugly stereotype, whose ramifications are felt not only by members of the bar but more importantly by those we represent.

As I noted back in 2009 in a short analysis of anti-solicitation rules, they do work. In honor of the chasing that Weitzman is doing, it looks like time for Pennsylvania to follow suit with an amendment to its rules.

Since Dean Weitzman said he was “available to media outlets to give analysis and discuss what happens next,” I’ve sent him an email seeking comment about the appropriateness of sending out such an email within 24 hours of the crash, when all of the passengers aren’t even accounted for. If he elects to respond I may amend this post.

(Hat tip, Max Kennerly)

May 4th, 2015

Lawyers and the Press. Again

I hate to pull the stuffings out of this article from the New York Times about women lawyers trying to manage both family life and a solid law practice. It was a lovely, fluffy piece of lifestyle journalism.

The women at the Geller Law Firm, it seems, have based their practice around making sure that they don’t lose sight of the other important things in their life, also known as children.

To do this, they cut back on hours, or make them really flexible, work from home or temporary offices, and focus most of the practice on non-litigation matters such as trusts and wills and small business incorporations. And “[T]he partners limit their litigation business because court appearances and filing deadlines mean less control over their schedules.”

According to the piece:

the founding credo of which is family-friendliness and whose stance on office face time is best described as “militantly against.”

You know what? If they can figure out a way to make the model work, then more power to them. If a group of people, for example, only want to work 30 hours a week, and take home less pay and have fewer clients, no problem.

So long as the clients aren’t affected.

But the article needed a little color. Someone decided it would be nice to have an actual client involved in the cuddly, little piece.

The problem with including a client, of course, is the risk that something will be said about an actual piece of litigation, so you would expect something very benign, such as “I think they are awesome and have no problem with the limited hours and they always get back to me when I call and they are awesome, and I said awesome twice because I really, really think so.” You know, like that.

But that is not what happened, so this is where the stuffings get pulled from the sweet teddy bear of a feature piece.

This part just leaped off the page at me, as confidential communications were exposed in front of the Times reporter:

By 10 a.m. on that Wednesday in March, Ms. [Maria] Simon was seated in front of a client, formerly the president of a condominium association that was now suing him. (The client gave me permission to sit in on the meeting.)

Ms. Simon began to review each count of the civil complaint against him, MacBook open and legal pad at the ready. She had a litigator’s game face that was only occasionally undone by a wry smile she couldn’t quite suppress.

“I have to ask,” Ms. Simon said at one point. “Did you ever falsely represent yourself as an attorney?” The client explained that he had once told a local agency that he was appearing before it as an attorney but that he had meant it “in the British sense,” in that he had power of attorney. “You know you’re not supposed to say that, right?” Ms. Simon deadpanned.

“Yes, lesson learned,” he said.

For the non-lawyer readers, let me explain. What lawyers and clients say between themselves is privileged. But when a third party, unrelated to the law firm, comes into the room, the privilege evaporates. Gone. Up in smoke. At a deposition opposing counsel can ask about every single thing that was said in front of this other person.

Lawyers see this potential problem with some regularity, though not with reporters as the third wheel. Often a friend will accompany the client to the office. And when that happens, it’s the job of the lawyer to exchange pleasantries with these friends and explain to them what a privilege is, and why they can’t come into the conference room, and offer them coffee and a newspaper as they sit in the waiting room.

Why the lawyers at Geller decided it would be wise to have a confidential meeting in front of a reporter is utterly beyond me. And why the lawyer would ask in front of a reporter, “Did you ever falsely represent yourself as an attorney?” is simply bizarre.

Saying that this was not a well thought out interview from the lawyer’s perspective is, I think, a significant understatement.

This is not the first time I’ve written on this subject, where it seems that the desires of the lawyer for press have superseded the best interests of the client.

We saw this just a couple weeks ago with South Carolina attorney David Aylor, who was representing police officer Michael T. Slager, who happened to fire 8 shots toward the back of Walter Scott, killing him. Aylor didn’t just jump ship after seeing the video, but worse, told the world just hours later that he was jumping ship after seeing the video. Because apparently Aylor comes first, not the client.

And we saw this a few years back with Chicago criminal defense attorney Stuart Goldberg, who interviewed with Lindsay Lohan about representing her, and then opened up to People magazine about her “fragile” state. But confidential means confidential.

What should the Geller client expect? That his admissions in front of his lawyer may now be an issue, that everything said in front of the lawyer is no longer confidential, and that the lawyer might actually now be a witness to the admissions, and be unable to handle the matter due to a conflict.

That is one hell of a mess, if you ask me. And I don’t know how anyone can say it benefits the client.

This isn’t to say that all client interactions with the press are bad. But going into them, there must be long and thoughtful discussions about exactly what is fair game to speak about, and what isn’t, and how/why it helps the client.

I reached out yesterday by email to the lawyer involved and she did not yet get back to me.

April 30th, 2015

What’s a Bar Mitzvah? (Asks the judge…)

A young lady becomes a bat mitzvah in Israel after hiking up Masada.

When a judge writes a decision trying to figure out what, exactly, a bar mitzvah is, someone ought to take note. Especially when he uses an old Hasidic parable in order to render a decision. And given that no one has yet brought this November decision to light, it seems that it’s up to me.

The six-page decision comes out of Rye City Court, a small claims court in suburban Westchester County, not far from where I live. And the judge noted that, while the court’s jurisdiction was somewhat limited, it doesn’t mean that it can’t wrestle with “geo-political issues, gender conflicts or theological dilemmas.” And not only that, but in addition to contract law issues, the court was “presented with the question of what is prayer and who decides what prayer is appropriate.”

Yeah, that does seem like an awful lot to ask for small claims court. But at its core, Judge Joseph L. Latwin had to decide who wins a contract dispute, when training a young man to become a bar mitzvah is the subject of the contract. That training revolves around learning to read Hebrew and learning the prayers associated with the service in which the kid will participate after he turns 13.

In Zyngier v Lurie, the claimant is the father of the boy preparing for his bar mitzvah service, and sought a refund of the downpayment for bar mitzvah lessons/training. The defendants are a rabbi and cantor who were teaching him, who have counterclaimed for the work that they performed. They were eight months into the training and just six weeks from The Big Day, when trouble erupted.

The problem was that the parents didn’t like parts of the service that the rabbi/cantor said needed to be done. Specifically, they objected to two English language prayers, one for the United States and one for Israel.

Why object? The mother is Lebanese-Christian and lost family in wars with Israel. The father is Brazilian (and presumably Jewish). Thus, there was no ancestral tie to the U.S., and the mother was uncomfortable with the prayer for Israel based on her personal history.

And there was a third issue — I did write, after all, that gender conflicts were part of this. The prayers that were being taught were egalitarian in nature. Thus, a central prayer in the service that is devoted to honoring the patriarchs (Abraham, Isaac and Jacob) now also includes in some of the more liberal synagogues the corresponding matriarchs (Sarah, Rebecca, Rachel and Leah).

The problem? The mother of the bar mitzvah boy wasn’t Jewish and the parents didn’t want to highlight this fact by including the matriarchs, and they wanted the prayer omitted.

Oy! What’s a judge to do? And the answer? Bring up an old Hasidic parable, of course, one that is often used to illustrate the essence of prayer. Isn’t that what you would do?

In this story, a young shepherd boy that doesn’t know how to pray finds himself in a synagogue on a holiday. Since he doesn’t know how to pray, but really wants to, he whistles his prayers to God. But while chastised by his father, the gates of heaven burst open. Because, the story goes, it wasn’t the specific words or form of prayer that were important, but the sincerity and spirit behind them that actually mattered.

The court then observes that:

The Court is aware that there is no biblical prescription of what prayers are required to be said at a bar mitzvah service. Other than the prayers before and after the reading of Torah and Haftorah, none of the prayers are mandatory, although many traditional prayer are bible based and overwhelmingly offered. A congregant from New York could likely walk into a synagogue anywhere in the world and not find much variation (except that translated prayer would be in the native language, not necessarily in English). Virtually the same prayers would be said in virtually the same order. This is a matter of tradition established over the 5775 years.

…

This Court is not the proper forum, nor is it capable of determining what prayer anyone should say or how it is to be said. The Court has little insight as to whether certain words, heartfelt whistling, or other mode of communication will find favor with any particular deity. That is better left to theologians. Nor will the Court impose any prayer regimen on either the claimant or the defendants. That is their personal choices – not an issue of secular law.

Hoisted in the air in celebration, post bat mitzvah service.

But things do change. There was no prayer for the United States as part of the service, for example, until recently, and you wouldn’t expect a synagogue in Brazil to use it.

And the adding of matriarchs is not only recent, but only observed in some congregations. Judge Latwin knew that he couldn’t be placed in the position of deciding which prayer was proper and which was not. We still have that separation of church and state thing going on, even when the church is a synagogue.

So what does he do? Basic contact law:

A court cannot enforce a contract unless it is able to determine what the parties actually agreed to. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.

Here, there was no meeting of the minds for what the service was to entail. The contact stated that the defendants were to provide “all liturgical and Torah text for custom prayer book,” which tells us nothing of the important details that were at issue. From the court:

There is no discussion as to whom if anyone has final editorial say on the content of the custom prayer book or how any dispute over the content was to be resolved. It appears to not have been contemplated by the parties and not a part of any agreement between them. Thus, the contract lacks the essential element of a meeting of the minds on this issue and the contract must fail.

And the decision: The defendants rabbi and cantor were entitled to the fair value of the 25 hours that they had spent with the kid up until it was realized that there was no meeting of the minds.

There was no discussion as to whether the young man ever had his chance to participate in the service.

(hat tip to Jeff Stillman)

April 20th, 2015

Boston Marathon, 2015 Edition (Updated!)

Today is the 119th running of the Boston Marathon, one of the truly great road races in the world. While it’s become associated with terrorism in the minds of many due to the bombing two years ago, this is not the way that runners think of it.

The race is, for most of us, a goal and pinnacle. Except for the great elites who will toe the line at Hopkinton this morning, most think of this as a great celebration. While some get into the race as runners for charity, the achievement for most is simply running fast enough in a prior race to qualify.

I have many friends out there now — as I type they are making their way to the start line and wondering how long the rain will hold off.

And along the route, there are countless parties being readied to celebrate the runners as they go by, for what is a mass event like this other than a great big party?

Is the potential for terrorism in the minds of many? Of course. But they are out there anyway, runners, spectators and volunteers alike. Those that are out there are not shut-ins preferring to cower. They are the ones celebrating life.

Below are a few pieces I’ve written before about the race (and the bombing). For those who want a peak into the psyche of the runner and what the race is about, here you go:

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) – 2009

The Boston Marathon (Highway to Hell) – 2012

Boston Marathon Bombing (And the Lives We Lead) – 2013

Passover and the Boston Marathon Bombing – 2014

——–

Update: Rebekah Gregory DiMartino, who lost a leg in the 2013 Boston Marathon bombing….ran the closing miles of the marathon today to cross the finish line. Video of her crossing the finish is enough to dent even the hardest and most cynical of hearts.