November 24th, 2014

Is Any Lawyer Advertising Good?

Running on Field NakedI’m not a fan of lawyer advertising. Likely because so much is dreadful  (though not all). Or ethically challenged.

But when The Fishtown Lawyers, Leo Mulvihill and Jordan Rushie, were contacted by the Philadelphia Eagles about advertising during their games, I think they missed the boat by saying “no” too quickly.

Maybe going over the top is OK — no, not with a flaming sledge hammer of justice.  Maybe you just have to go over the top the right way.

So I’ve taken the liberty of writing ad copy for their criminal defense firm…you guys can thank me later:
—————-

Have you been falsely accused of running naked onto the field in front of 50,000 people?

Were you busted for recycling your pre-game beers down from the upper deck perch onto the heads of  choir boys and nuns below while the video cameras rolled? But you thought it was fresh beer, so it was OK?

Did you dis a cop at a crowded tailgate party, “You can only catch me in your dreams?”  Before collapsing into a pool of your own vomit?

Call The Fishtown Lawyers, Mulvihill & Rushie, to help save you from such well-documented, though no doubt scurrilous, accusations.

That’s The Fishtown Lawyers, Mulvihill & Rushie, who know from personal experience that consuming a mere 5 – 10 drinks can make others level all kinds of false accusations against you.

Why the Fishtown Lawyers? Because representing yourself might not be such a hot idea.

And we promise we’ll be sober in court.
————

Too bad they don’t have the guts to run it.

 

October 27th, 2014

Ebola and the Failure of Lawyering (Updated)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

Gov. Chris Christie was the US Attorney for New Jersey. Gov. Andrew Cuomo was the Attorney General for New York. You’d think that, with those credentials, they’d be smarter.

Each of them knows that a long view must be taken with respect to many, many issues, often with extensive evaluation of complex issues.  It took them years, sometimes, to accomplish things with litigation.

As lawyers we cite to precedents that go back decades, sometimes centuries. This is part of critical thinking and analysis.

But when it comes to the Ebola virus, they’ve both capitulated to the concept of panic first and think second.

Both governors have now imposed a 21-day quarantine on medical workers who risk their lives to go to west Africa to help save lives and fight the virus. So in addition to an involuntary deprivation of liberty for those now returning, even if healthy, they have  also made the  job of helping more difficult for these particular brands of heroes. If a doctor or nurse was willing to squeeze out a 3-week trip to help, that just became a 6-week trip.

The ostensible reason is to make it harder for the virus to come here. But the result is the opposite.

Instead of fighting the disease where it is, it is now more likely to spread with less medical care. And folks who are visiting the region will simply vanish from sight (and potential monitoring) by routing themselves to other U.S. airports, via other countries, where they won’t be subject to the long arm of government.

Even if we stopped all people and flights, the proliferation of the disease if left unchecked would just as easily go to many a European or Asian nation. It could go anywhere, since disease knows no politics or borders.

Instead of 10,000 infected in Africa, it could grow to 1,000,000 if left unchecked.

The only logical answer is to stop the disease where it is. Does that mean risk that a few people might come back sick? Of course. But a few sick folks here now is a whole lot better than many sick people here later. It isn’t about picking a good course of action over a bad one, but picking the one that is less bad.

We should be encouraging people to help if they have the skills, not discouraging.

The short-sighted plan runs counter to the long-view training both Christie and Cuomo have as lawyers. They should both be embarrassed for their blundering pandering to the ignorant panicers.  The times call for the type of deliberative long-term evaluations and critical thought that they had been trained to do, and they failed.
——————–

Updated: Elsewhere of interest on law blogs:

Experts Debate Legality of New Jersey’s Ebola Quarantine Policy (WSJ Law Blog)

Seized By Fear: The Ebola Quarantine(Simple Justice)

Constitutional challenge to quarantine unlikely to succeed (Volokh Conspiracy)

Which Privacy Protections Apply? HIPAA, FERPA and Ebola (HIPAA, HITECH & HIT)

Ebola and Privacy: Snooping, Confidentiality, and HIPAA (Daniel Solove)

 

 

October 10th, 2014

RIP: Prof. David Siegel

siegel_David

Professor David Siegel, from his Albany Law School biography page

Calling Professor David Siegel a giant of the New York legal world would not only be a bit trite, but would still be an understatement. His treatise on New York Practice, the bible of New York civil procedure, is a required text for anyone that works in this state’s courts on the civil side and is routinely cited by judges at all levels, both state and federal.

He died yesterday.

In an obituary at the New York Law Journal, former Chief Justice Judith Kaye is quoted thusly from a 2008 Albany Law School event honoring him:

“Who among us doesn’t know that he is the—absolutely the—preeminent authority on matters of civil practice in the entire universe?” Kaye said at the time. “There’s no one with a bit of good sense who would dare ever to cross you on matters of civil practice, David Siegel.”

Like many other local lawyers, I attended Siegel’s continuing legal education classes regarding our civil procedure many times. And here’s the thing: The guy wasn’t just smart and practical, he was funny.

That humor was reflected not only in his on-stage manner, but incorporated into his New York Practice book. I mean really, who the hell ever laughed out loud at something in a book about legal procedure? But Siegel could pull that off.

On a few occasions in this blog over the years I’ve mentioned that it sucks to be a test case, usually on the subject of our new and untested ethics rules regarding online conduct and solicitation. That mantra of “it sucks to be a test case” comes from Siegel, who used to preach that advice when lawyers would pose factual situations that might (or might not) comply with our procedure.

Ever the practical person, he knew that it wasn’t always whether some procedural issue would work or not, but that lawyers should avoid placing themselves into the position to have to make that decision. You might (or might not) win your test case, but it will cost you time, money and sleepless nights to get there.
——————–

From appellate lawyer Jay Breakstone:

I suppose it’s to be expected.  A lawyer dies and we all gather around and describe him in the most glowing terms, whether he was a saint or a nasty bastard.  Sometimes, it’s like being at Hitler’s funeral.  “All in all, what can we say?  He was a hell of a dancer.”  At the time of death, there is always something nice to say about anyone.

But the recent loss of David Siegel is something else.  It is the true loss of someone we needed, not just admired.  Prof. Siegel was that one tool on the belt of every working lawyer that we couldn’t live without.

He was the Vise-Grip plier that could wrap itself around a particularly nasty question and break it loose from our own ignorance.  And, just like that Vise-Grip plier, he was always there.  Except for now.

To those of us who write about the law, David Siegel had a very unique talent.  The Professor could make the law understandable.  What a gift!  After all, this is not John Grisham writing about steaming plot lines and attractive anti-heroes.  This is New York practice, about as entrancing as a heartburn.  Yet, David Siegel made it sing.

How did he do that?  To this day, I do not know.  In the master’s hands, New York practice was just about the most interesting thing in the world.  It involved real people and real lawyers and real problems and, best of all, real answers.  Like some ancient prophet, Prof. Siegel revealed all that came down from on high to those of us who lived below.

I first came across Prof. Siegel at a bar review course in 1976.  They said that his course on New York practice was essential.  I think I paid extra to take the course and they were right.  He lectured in a style that can only be called “conspiratorial.”  This was a lawyer talking to other lawyers (almost.)

It was him and us against the world.  At last, this was the real thing.  No theories, no big shot federal jurisdictional issues; this was blue collar lawyering at its best.  We listened enraptured, for we quickly understood that if by some slight chance we actually passed the bar exam, this was what we needed to know on the day after our admission. I can still hear David Siegel today:

“One day, as young lawyer, your boss will send you to court.  How exciting!  You will carry the nice new briefcase your parents bought you and head off to the courthouse at 60 Centre Street.  You will walk up the steps with the sun shining, ready to do battle for justice.  You will enter the beautiful lobby and, just as quickly, you will descend into the bowels of hell.  You have been sent to the Special Term, Part I courtroom.

As you open the swinging doors, you will be assaulted by a scene out of Dante’s Inferno.  Hundreds of lawyers will be there, shouting out the name of hundreds of other lawyers.  You will sit down in the back of the courtroom and wait for the judge to take the bench and call your case.  But there will be no judge to hear your application for an adjournment.  Only the clerk will take the bench and he will begin to rattle off case after case in the order they are on the calendar taped to the wall outside the door – – the calendar you did not notice when you came in.  So, you will listen for your case to be called.

Quickly, the case names go by, and then, you think you hear yours!  You walk to the front of the courtroom, only to realize that in the time it took you to make that trip, fifty other cases went by.  There is no one to talk to; you are alone in a crowd, secure in the knowledge that once you get back to the office, you will be fired and have to pack up your desk in one of those cardboard boxes and go home, telling your mother you’re not a lawyer anymore.”

It was then that David Siegel, as he did until the day he died, rode in like a knight on horseback and saved our lives:

“This is what you have to know:  There are only three things you may yell out in Special I.  Nothing else will register in the mind of the clerk.  He or she is only programmed to respond to these three magical phrases.  Write them down now.  Memorize them.  Never forget them.   Here they are:  Ready for;  Ready against; Application.”

Prof. Siegel, I have never forgotten those words . . . or any of yours.

 

September 30th, 2014

Loving Your Office

woolworth-building-at-night-425

Photo by Chris Petsos Photography. Many more great shots at his site. Click on image above to get there.

Lawyers have to make decisions on their offices: Make it nice? Or make it inexpensive? Rarely do the two concepts coincide.

We spend a lot of time in our offices.  Other than our homes, this is it.

This came to mind when I saw an article in the Sunday real estate section of the Times on my old stomping ground: The Woolworth Building.

My office was on the 8th floor, overlooking Broadway (and ticker tape parades) and City Hall Park (and the people who’d shout and scream at Mayor Guiliani).

I loved that building. As I walked into the office each day through the lobby of this gothic style skyscraper — once the world’s tallest, with its vaulted mosaic ceiling, gargoyles, and crowds of tourists gawking at its magnificence — I couldn’t believe I actually worked there.

And I enjoyed going in to work. It made me feel good to be there. I was productive. And it was a fine contrast to the windowless office that I started my solo career in, with a big mirror that I bought to give it the illusion of something bigger than a glorified closet.

Since leaving the Woolworth, each of my offices has been nice. Spacious. Welcoming. With pictures of my family filling the walls.  The diplomas are on the wall behind me, where I don’t need to look at them.

Today’s rumination isn’t just for those looking for offices for themselves, but those in charge looking for their staff. Do you want them to look forward to work or do you want them miserable coming in? While this formula isn’t ironclad, I think it has a lot of validity, both for lawyers and staff:

Comfortable office = productive lawyer

Don’t be cheap unless you absolutely have to. Remember how much time you’ll spend there, and make sure it’s a place you want to go to each day.

 

September 10th, 2014

Apple, Privacy and Law

ApplePayYesterday Apple had its massive product presentation and one of the products it announced was a new pay system for credit cards, Apple Pay. Load the cards into an iPhone, and then just wave them in front of a techno-gadget at the check-out counter and you’re done. Simple.

Why might this be important? Currently, big business is tripping all over itself to gather as much information on you as possible, taking away big chunks of your privacy.

A 2012 New York Times piece on Target explained how, based on the buying patterns of a teenager — unscented lotions, vitamin supplements and other non-pregnancy related products — it knew she was pregnant early on and sent coupons for maternity clothes to her home. Her father was livid. And unaware of his daughter’s state.

Target is obviously not alone in doing everything possible to create massive data banks about you. Data banks that, perhaps, can then be hacked into (or subpoenaed).

Personally, I find myself using cash more and more often, as I cherish my privacy.

But Apple Pay may reverse that direction. According to CEO Tim Cook, the iPhone encrypts the card numbers, and when you make a purchase, the store can’t attach product information to your purchase.

That’s because the store doesn’t even get your name, much less your card number. Hacking the store’s computers should keep the consumer safe (again, see Target, and its loss of 40M credit card numbers).

And even Apple doesn’t get the information. From the Apple website, two key paragraphs:

Apple doesn’t save your transaction information.With Apple Pay, your payments are private. Apple doesn’t store the details of your transactions so they can’t be tied back to you. Your most recent purchases are kept in Passbook for your convenience, but that’s as far as it goes.

Keep your cards in your wallet. Since you don’t have to show your credit or debit card, you never reveal your name, card number or security code to the cashier when you pay in store. This additional layer of privacy helps ensure that your information stays where it belongs. With you.

If this works as planned, it has the potential to (partially) reverse our headlong dumping of personal information about ourselves into the computers of Big Business, both with respect to the items we buy as well as the cards we use.

The less data that exists in the data banks, the less it can be abused.