December 29th, 2014

The WSJ Rips Me Off — Now What? (An Open Letter)

To the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here. It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1. It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2. My, oh my, you certainly copied a big chunk of my piece, didn’t you? A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3. Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4. Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important — because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem. We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post. You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you. I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

Well, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. – I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.

December 23rd, 2014

Will Google Cars Eviscerate the Personal Injury Bar?

Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.

But.

The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me — “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced. (Likewise reduced will be the need for trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See The Google Car Is A Huge Threat To The Auto Industry (Business Insider)

December 10th, 2014

Dr. Katz Defamation Case Against Me Gets Chucked

Justice Hart’s opinion of Dr. Michael Katz

Ahh, the sweet smell of victory. Not that I ever doubted it. But it is nice to see this over so quickly.

So. You remember that idiotic defamation case against me by New York orthopedist Michael Katz? He was the one that was called a liar by Justice Duane Hart over and over and over and over and over again. The one that dealt with his testimony during a medical-legal exam, where he said it was likely 10-20 minutes long but a surreptitiously made video showed that the actual examination part was only one minute and 56 seconds?

Yeah, that Dr. Katz.

And then he sued me for reporting on what transpired in the courtroom? Yeah, that lawsuit. (See also, opinions on suit by Scott Greenfield and Marc Randazza.)

Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern.

Why was it chucked? Well, it seems that reporting on what happened in a courtroom is fair game. We have those law thingies that protect us for that. Specifically, New York Civil Rights Law 74, which reads:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.

Oh, that law.

Citing to Dr. Katz’s own complaint, which sets forth ad nauseum all of the eviscerating comments Judge Hart made about Dr. Katz being a liar, Justice Kern dismissed the case for failing to state a claim. In other words, we accurately reported what transpired in court, that Justice Hart called him a liar, ergo it’s impossible to make a claim.

Dr. Katz also conceded that Justice Hart threatened to report him to the District Attorney to investigate perjury, the Office of Professional Medical Conduct to investigate action against his license and to the the Administrative Judge for potential civil contempt.

And when I use the word eviscerating above, I am quoting Justice Kern on page 3 of her decision. Katz Case Chucked

Specifically, Judge Kern held that I, and my co-blogger for those posts Samson Freundlich, were immune from suit because the comments we made here were “fair and true reports of Justice Hart’s findings and assertions made during the course of the proceedings.” (p. 9)

And I kinda liked this quote:

Indeed, a side by side comparison of the posts, specifically the statements identified by the plaintiffs in their complaint, with the proceedings transcripts…clearly reveal that Turkewitz and Freundlichs’s reports of the proceedings accurately reflect Justice Hart’s statements.

The court next addressed those statements that were not facts, but opinions. And you know where that goes, don’t you? Chucked. They are “nonactionable as they are constitutionally protected assertions of opinion.” (p. 10)

Two quirks to the opinion that might interest others: The court held that the standard for suing someone for comments on the Internet is higher than if the comments were made in a “physical official publication.” Because Internet.

Second, I thought I had a very strong case to have the lawyer and law firm sanctioned, since there was no colorable way they could succeed. Katz conceded in his very own complaint that Justice Hart made those lacerating comments about him. Yet the court, without discussion, simply denied my motion for sanctions. If Dr. Katz is dumb enough to appeal, I will press the point again.

All in all, every time an idiotic defamation case against a blogger gets tossed out, it’s a good day for free speech.

Now if only we could do something about our judiciary’s deep reluctance to sanction clearly frivolous lawsuits…

December 8th, 2014

Being a Witness Isn’t Easy (My Turn To Be One)

I’m going to start this piece in New Rochelle where I recently saw a pedestrian knockdown. I’ll end at the University of Virginia discussing a now (in)famous rape story reported by Rolling Stone. I hope to make it there in one piece.

On Friday night I became a witness. It was dark. It was raining. The pedestrian who came into contact with the vehicle in front of me was wearing dark clothes and wasn’t in a marked crosswalk.

You can see him here lying in the roadway in this photo I took a few minutes afterward as we waited for the police. The two people standing on either side of him in the headlights were Good Samaritans trying to make sure he wasn’t further injured by another car.

We were both making left hand turns onto this divided road.

Why blog about this? Because witnesses are important in cases, civil or criminal. Lawyers question witnesses all the time, to get information or dissect fact from fiction.

And as I reflected on what happened, I could hear me cross-examining myself in my own mind over this incident.

And the funny thing is, I would struggle to answer many of the questions. One reason is that, before the accident happened, I had no reason to “remember” that which was ordinary.

An example of a typical question asked of a witness in this plain-vanilla incident — and I call it that because there was no crime involved nor life-threatening trauma:

When did you first notice the car in front of you (that came into contact with the pedestrian)?

Answer: How the hell should I know? Because until something “different” happened, there was no reason to notice in the sense of discriminating that one car from any other car. When we drive we certainly see that there are cars near us so that we can avoid collisions, but unless one of the cars sticks out as “different” — perhaps a 1950s white Cadillac with big tail fins — we don’t really notice in the sense of looking at it with a view toward detail.

And when something does happen — in this case the car in front of me running over the foot of the pedestrian — we are so stunned that something has happened that we don’t sit there cataloging in our mind that which we’ve just seen. It’s more like, holy crap, did that really just happen?! The “story” is almost like fragments in the brain since we weren’t looking for it to happen.

Then comes the time of reconstruction in our minds when we try to fit all the pieces together. And I think reconstructing is a better word than remembering, as we start to use circumstantial evidence to put the story back together in our brains. So, for example, I didn’t notice the other car as I waited at the light to make the turn that resulted in the pedestrian being hit, but I know in hindsight that, since I was directly behind the red car at impact, I must have been directly behind her moments before waiting at the light.

Frankly, if I hadn’t snapped that picture you see here, I wouldn’t have even remembered the color of the car. Or the clothes the people were wearing. These things might have been right in front of my nose, but because they were “normal” they were unmemorable. Yet witnesses are asked to remember such details.

In addition, my ability to recollect is colored by my own experiences: that of personal injury attorney. Who was at fault? A doctor behind the wheel may have observed (or remembered) different things than I did. Perhaps a tailor would seen yet different things about the people.

And no doubt the view of the incident differs further from the perspective of the pedestrian, the driver, and the two Good Samaritans. Like the old Japanese movie Rashomon — which should probably be required viewing for any trial lawyer — we all see different things from our own perspectives. This is neither good nor bad; it just is.

Now lets take this one step further, because I was a mere witness that was not directly involved, unlike an incident I wrote about 7 years ago. (Or at least I wasn’t involved Friday until the other driver backed into me as she rolled back off of the guy’s foot.)

I didn’t have my heart racing as an actual participant. I was not stopped dangerously on a bridge. There wasn’t a massive surge of adrenaline that shot my nervous system into overdrive. But if I was actually involved or in a dangerous spot? That would have surely have affected my mental state and made the act of remembering different.

And if I was the victim of a violent crime, then what? There’s a pretty good chance things would become even stranger to remember if the assault was sudden, as my mental state would be significantly altered. Whether it would be sharper or more confused, I don’t know and I hope to never find out.

Throw drugs or alcohol into the mix, and now what? Reconstructing could become even more complicated.

Remember, my event on Friday night should, theoretically, be relatively simple: I’m not directly involved, wasn’t assaulted, and didn’t have any artificial impairments. But it isn’t.

Criminal defense lawyers, of course, deal with these issues all the time, not just with the nuanced facts of a crime, but with the (mis)identification of people by witnesses.

And now we transition to Virginia: What do we see now with the roaring debate over the Rolling Stone article about the University of Virginia women named “Jackie” who said she was gang raped as part of a frat initiation? And Rolling Stone then pulling back on the story saying that they should have been more careful in checking sources?

Should we believe her despite Rolling Stone backing away from the story for failing to properly fact check? Should we believe others who’ve made claims of violence against them? Should we believe those who claim they were falsely accused in various crimes?

Here’s a thought: How about instead of electing who to “believe” we just listen. And understand that news accounts rarely present all the facts. Or are only partially accurate.

Ignore those who tell you who you should believe when they have political agendas. Because accurately remembering sudden and traumatic events can be difficult. Even for simple stuff.

There is no reason to jump to a presumption of guilt against those accused. Nor any reason to disbelieve those that claim to have been assaulted.

It’s good to remember the false accusations of rape against Duke lacrosse players. And equally good to remember that those “guilty” of the Central Park Jogger case were actually innocent, with convictions based on false confessions by juveniles. And likewise good to remember that there are countless cases of rape and sexual assault that do take place, many of which are never reported. All of which involve witnesses of one kind or another.

Listening is good. It isn’t necessary to instantly have an opinion on who to believe, or not believe, especially when every single case is different and facts are often in dispute. We don’t usually get the benefit of being a fly on the wall, or having that God’s eye view of what happened. Asking questions and being quizzical are good; forming instant opinions and being adamant, not so much.

I am forever mindful of “subway vigilante” Bernhard Goetz being on trial, a white man who shot four black teens in the subway that, he said, threatened him. Outside the courthouse during the trial were two groups of protestors: Those who called him a hero for standing up to thugs, and those who accused him of being a murderous racist that should be jailed or worse.

But the protestors outside the courthouse all had a couple of mportant things in common: None of them were actually in that subway car and truly knew what happened, nor were they even in the courtroom listening to the witnesses try to describe a few moments of unexpected trauma.

December 3rd, 2014

“& Associates” as an Ethical Violation Gets a Courtroom Visit

Five years ago, when Sonia Sotomayor came before the Senate Judiciary Committee for confirmation, she released a questionnaire that gave her legal history, and she revealed that she once had a firm called “Sotomayor & Associates.” The problem? There were no associates.

Oops. I wrote the piece up within a few hours of the document’s release, describing it as a one of the less serious pieces of misleading advertising that take place, but a violation nonetheless.

And there the post sat for a couple weeks until the Washington Times picked it up in an editorial. And then the New York Times did a big story on it (without attribution to me, thank you very much) a month after I did, complete with White House response.

But the most curious part of the episode was the White House claim that this wasn’t an ethical violation, raising the issue from an “oops” to a full-blown kerfluffle. They actually paraded out a defense of the clearly misleading practice by offering a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Lieberman was dead wrong, in my opinion, and I called this a lousy defense.

Well, the answer is now clear, for any lawyers that thought they could get away with puffing out their firm names to make them look bigger than they actually are. Yesterday the Appellate Division, First Department censured a lawyer over the use of “& Associates” when he had no associates; he was a solo practitioner (Matter of Cardenas).

To be sure, this was the least of the transgressions committed in the censure that took place, with the big issue being the apparent deliberate commingling of funds. For the non-lawyers that may be reading, that means the lawyer borrowed money for his own use from an attorney escrow fund where it was supposed to sit segregated.

But mixed into the panoply of charges was this clear and unmistakable bit, for violating:

Rule 7.5(b) (using business cards and letterhead listing his law firm as “Cardenas & Associates,” when, during the period at issue, he did not employ any associates)

It is highly doubtful a lawyer would be censured for this alone. But the rule is nevertheless clear. It is misleading to call your firm “& Associates” when there are no associates. And if the White House or any other authority tries to tell you otherwise, there is now a decision to point to.