January 16th, 2014

Justice Scalia Rips Lawyer for Reading Notes

Justice Antonin Scalia decided to have some fun with a lawyer a couple days ago. By publicly humiliating him.

The crime that needed to punished? The lawyer, Steven Lechner, was reading his argument to the Supreme Court in Marvin Brandt Revocable Trust v. United States. It was his first appearance before SCOTUS. And Scalia didn’t like someone walking into his home to do that — to read.

This was how it played out:

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -

JUSTICE SCALIA: Counsel, you are not reading this, are you?

I feel his pain.

Lyle Denniston, writing at SCOTUSblog follows up with his personal observation after the judicial taunt:

Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.

Two points to make here.

First, it’s completely understandable that any lawyer appearing before the Supreme Court of the United States for the first time is going to be nervous. Very nervous. As in, it’s-hard-to-sleep-for-months-before nervous. That kind of nervous.

Anyone that’s tried cases or argued appeals, of course, knows this, albeit on a reduced scale. Performing in a local play isn’t the same as your first appearance on Broadway, but it’s enough to scare the bejesus out of most of us. You are about to walk on a high wire and there is no net. We desperately want something to hold onto, a crutch to grab, if you don’t mind me mixing my metaphors of Broadway, high wires and crutches.

The problem with this is that juries and judges hate it when you read to them. There is nothing in the world like the immediacy of eye contact. From a purely tactical standpoint, you don’t want to put your head down and read because it’s less effective. That’s why Presidents use teleprompters.

On those occasions when I must read, because I need to actually quote a piece of testimony, a line from a judicial opinion, or a statute, I will likely apologize for doing so in advance, thereby both keeping the attention of the audience and accentuating (I hope) the words being read.

The solution to the problem is not to take a speech to the lectern. Which is scary. But at that point, you know your case pretty darn well. A one-page outline of points to hit during your remarks should suffice.

Can’t make it fit to one page? Then get rid of extraneous words. Two to three words is all you are likely to need to remind yourself of the concept you want to address.

But there is a second point about this incident to make, and that is the abuse from Justice Scalia. While this may be his home court and he may be perfectly comfortable up their on the bench, he knows damn well that a rookie appearance before this bench will twist any rational soul up in nerves. He embarrassed someone merely because he could, because he wanted to. In the language du jour, he bullied him just for the sake of it.

Leaving aside his jurisprudence, there is a part of me that has a soft spot for Scalia ever since he gave my brother screenwriting advice on the issue of state secession, as well as for his writing ability. But this conduct was unacceptable.

More, elsewhere:

Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes (Turley)

An Embarrassing Supreme Court Moment (Blog of Legal Times)

January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14): CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.

January 6th, 2014

2013 Year in Review

I’ve been at this blogging thing for seven years now, and my posting volume waxes and wanes with other events in my life. But on the actual substance, I’m pleased to write that I thought 2013 was the best that this space has seen.

Why? Because, I was able to do some original reporting on issues that hit home for the entire personal injury field — the use of insurance company “experts” that do quickie exams, who then use these three or four minute exams to claim that victims haven’t been injured. I won’t re-post the entire series, but you can read this one regarding Dr. Robert Israel and this one regarding Dr. Michael Katz, and then follow the links from there to the extent you haven’t seen them yet.

One of the problems with blogging is that, all too often, bloggers merely re-package stories that have been written by others. The better ones will offer opinions on why the story is significant.

But breaking news is a whole other beast, and is particularly rewarding. This is especially true if it results from investigation, and even more true if it spurs others to investigate.

I know from other sources that these two experts, for instance, will be hard-pressed to ever take the witness stand again, as they will be destroyed on cross-exam by their conduct. And I’ve done my part to make sure their conduct is well known. This one post of mine has been viewed over 18 thousand times. Some folks are interested. Indeed, the New York Law Journal has already featured two articles on the subject subsequent to my reporting.

And other doctors that I discussed may find themselves the subject of new lines of cross-examination due to the data I found on the length of their exams.

While I believe I’ve published some powerful evidence of insurance fraud undertaken by the insurance industry, I obviously don’t have the time or resources (subpoena power) to do a full blown investigation. Perhaps one day a real investigation of insurance fraud will take place regarding these quickie exams.

In the meantime, I’ll keep plugging along.

It would be nice if this blog could actually accomplish something that brings more integrity to the field. I would call that success. I feel like we are half way there, but still need state investigators to do the real work.

December 19th, 2013

Sarah Palin and Other Morons, on the Loose (Duck Dynasty, 1st Amendment Edition)

All over the news right now is the story of Duck Dynasty patriach Phil Robertson saying nasty things about gays and others and then having A&E, the network that puts on the show, suspend him.

There are plenty of others writing about Robertson and his views, so I feel no particular reason to yell “me too!” I don’t like writing those kinds of posts.

I write instead about the predictable fallout of the usual screaming matches that come up whenever a social issue rears its head, the old left v. right kind of thing, though perhaps when it comes to gay rights it’s more accurate to speak of those who favor greater government intervention against those who want the government to keep its nose out of the citizenry’s private business.

In any event, Sarah Palin, in her wisdom, sees this as a “free speech” matter:

And cable talk show legal analyst Arthur Aidala, when the issue was being “debated” on Fox News’s Megyn Kelly show:

Arthur Aidala and Monica Crowley vehemently disagreed, and all three got in a heated back-and-forth about the free speech issues here. Aidala cried, “There’s something called the First Amendment!”

Who is Arthur Aidala? A criminal defense lawyer.

Now I understand when those who are less educated misunderstand the First Amendment. I don’t criticize too heavily when there are folks who have not had the benefits I’ve had of a good education, though this is the kind of thing anyone with a high school education ought to have a grasp of.

But if you ran for Vice President of the United States, or if you are an attorney volunteering to be the talking head legal analyst on a cable show, then you really can’t claim ignorance as an excuse. You ought to know that the issue of free speech applies to the government, not a private cable television channel. The First Amendment is pretty clear on that, and I added a touch of emphasis for their benefit:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To be clear: Robertson has every right to say idiotic things. A&E has every right to say it doesn’t want someone who spouts idiotic things on its show. (At least for awhile, until the tug of money and ratings makes them say all is forgiven.)

I have a right to publish idiotic comments. Palin and Aidala have the right to spout stupidity.

But the government isn’t involved in any of this, because it has’t tried to make a law that prohibits any of us saying our piece. Bellyache all you want, but this isn’t a free speech issue.

To quote from the movie Billy Madison, regarding those trying to raise the banner of free speech:

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

December 18th, 2013

The Guest Blogging Dodge

Anyone that’s blogged for more than 10 minutes has seen the flood of so-callled writers begging for the opportunity to create “content” for your blog. If, please, please, please, you would only be so grateful as to give them some valuable link juice. As you might guess, it’s a scam. There is never anything in the email that even suggests knowledge about the blogs being pitched.

I hate them. Greenfield hates them. Bennett hates them. Popehat hates them. They are hated by mommy bloggers, tech writers, and media folk. Even the British have a hard time keeping a stiff upper lip about this crap.

But then. I do read the pitches, or at least the first line or two to see if, just maybe, the writer didn’t send me spam but actually had some knowledge about my blog and had a point of view to share.

And so it was with Max Herman who guest blogged here yesterday. The request to write came out of the blue, but it actually dealt with a current case before our top court, about an issue that reflects upon personal injury law, was an issue that he was closely following, and he had notes on oral argument that had already taken place.

When Max contacted me, he already had a two page explanation of what he wanted to write, along with briefs of the case he wanted to write about.

Max didn’t want to write about any old thing, he wanted to write about this thing that he had been following and that he found interesting. Also, he could actually write in an engaging manner. And he never asked for a link. I had to ask him for his bio link when I published.

And so, while it’s tempting to my fellow bloggers to simply delete the emails when they come in, the truth is that there are people out there who actually have something to say and are looking for the right forum to say it. Writers gotta write, and once written, would like to publish.

On first blush it might seem that it is’t even worth it trying to separate the wheat from the chafe, but the chafe is so easy to see it makes it easier for the Max’s of the world/

But to the aspiring writer/pundit looking for a platform, please know this about contacting a blogger about a guest post: You had better have a good idea (and an outline) of what you want to say before you contact us. And that idea should be one that is about a very current issue. Be a Max. No one is interested in generic pablum.

You can pitch us, but you have to pitch us well. Even those sites that don’t accept guest blogs are unlikely to be upset if the pitch is genuine. But the alternative, if it isn’t genuine, can be ugly.