February 27th, 2014

The Old and the New (Gold Coins and Bitcoins)

Since bitcoins are virtual, this coin doesn’t really exist other than as a cute token.

There’s been no shortage of stories over the past 10 years about information technology and the law, and how new toys and gadgets will change the face of it all. This is easier, that is easier, blah, blah blah.

Missing from those “tech is great” stories is this little nugget: Sometimes there’s nothing wrong with the old ways.

Two stories this week bring that concept into sharp focus. The first is the implosion of Mt. Gox, the the world’s largest exchange for trading bitcoins, a virtual currency that is backed up only, it seems, by the willingness of others to believe in it. 750,000 bitcoins have gone missing worth, on a good day, about $300M. Why anyone would be surprised that an unregulated digital “currency” backed up only by faith might have problems is beyond me.

Because hacking and digital theft don’t really exist, I guess.

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These coins, on there other hand, are 120+ years old and have real value.

And the second story is the discovery by a California couple of eight cans holding 1,400 gold coins in mint condition. Preliminary estimates put the find at about $10M. The newest of the coins are 120 years old, minted in 1894. Gold coins have been used as currency for thousands of years.

Bitcoins and gold coins. A very interesting pairing of stories.

The newest tech gadgets might, in fact, make some lawyering easier. You can bring your whole file to court, to the house or elsewhere on an iPad. That certainly can be convenient, and also serve to make sure you are now working 24/7.

But proceed with caution. Just because a technology is new doesn’t mean it is better.

February 13th, 2014

Let it snow, let it snow, oh crap…

Everyone gets excited for the first snow storm of the year. After a few of them, however….

Mike Jaffe — a past president of the New York State Trial Lawyers Association — appears to have had enough. Today he guest blogs on the call he received this morning from his kids’ school:

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5:30 a.m. – house phone, cell phone, other cell phone – please be advised today, Thursday, February 13th, all Syosset schools will be closed. Please be further advised we’ve decided not to reopen until winter is over – what’s the point? When your phone next rings at 5:30 a.m. you can assume schools have reopened and you can wake your children.

For now, one of you should stay home with the kids while the other shovels while snow continues to come down so you can get your car out onto the unplowed road in front of your house and hope for the best getting to work in whatever tortured way you’re going – this includes a two mile per hour drive in bumper to bumper traffic or a slog through the LIRR parking lot to a nasty salt stained train car packed with miserable people who would rather be anywhere but here as long as anywhere but here is outside the polar vortex you recently learned about.

For today’s cruel joke it will snow while you travel and then turn to rain that travels sideways so your umbrella will be pointless (if you have goggles you might consider wearing them – they go well with a suit and tie and overcoat), that rain will then freeze on the ground so there will be a nice layer of impossible-to-clear ice on which half a foot of snow will fall later this evening for your commute home in either bumper to bumper traffic or among the beaten down, miserable, sloggers on the railroad who will by then all have the look of prisoners released from prison only to learn it was a mistake and they must come back.

We do note that it is supposed to warm up early next week – while you might think that would allow us to open schools, unfortunately our buses all have flats due to the Grand Canyon-like potholes which have opened up on every surface where tires would normally drive so we are unable to pick your children up and bring them home.

We would ask you to drop off and pick up but our drivers have noticed many of your cars on cinder blocks in your driveways – apparently having encountered the same canyons our drivers have encountered. On third thought, screw all of this, tell your children to walk to school like we did when we were kids. Who do they think they are? Little coddled brats. School’s open.

February 3rd, 2014

Local Super Bowl Ad Features “Flaming Sledgehammer of Justice”

The tip comes to me from a friend: Have you seen this?!? A Savannah, Georgia personal injury attorney bought up two minutes of local airtime during the Super Bowl last night to explain why he’s a personal injury attorney.

And he does so with a flaming sledgehammer. And trading on the shooting death of his brother. And smashing a tombstone. And dissing his past criminal defense clients, describing himself as a “notorious criminal defense attorney” who was “employed” by “cold-hearted villains.”

Oy.

While I am no fan of personal injury ads, having only seen one that was actually done well, I do admire folks who will try something different. But trying something different doesn’t mean pretending you are a super hero and smashing a gravestone, with ridiculous production, as attorney Jamie Casino does in this video, now on YouTube. Go watch it, then come back.

Welcome back.

The most important issue: If he will diss his former criminal defense clients today, and claim to have been in their employ, what will he say about his current clients tomorrow? How do you trust someone who will rip into his prior clients? This isn’t just a question of being fickle in his choice of practice areas — anyone ought to be able to move around for a multitude of reasons — but calling them “cold-hearted villains?”

The fact that he trades on his brother’s death and uses atrocious production values to garner attention (which obviously worked since I’m writing about it and others also will) may go to the good/bad taste of the viewer. I think they are bad taste.

Also, I’m not keen on people that wear sun glasses at night, unless they happen to be the Blues Brothers. And using Avvo Answers to ask people to call him. But I guess those are nits to pick.

But there isn’t really any excuse for trashing your clients, to whom you owe a fiduciary duty and duty to preserve secrets even after representation is done.

If he finds more lucrative retention a few years down the road in another line of work, what will he be saying about today’s personal injury clients?

Addendum: It appears from this article that Jamie Casino’s brother Michael was killed in 2012 and that he then switched over from criminal defense to personal injury law. And that means he likely has little actual trial experience in personal injury. From the article:

Casino goes on to depict events surrounding the real-life slaying of his brother over Labor Day weekend in 2012. Casino’s younger brother, Michael Biancosino, 30 at the time, and Emily Pickels, 21, were shot and killed in Biancosino’s vehicle in the early hours of Sept. 1.

So this guy, who has most of his legal experience in a different field, criminal defense, just spent a boatload of money — two minutes during the Super Bowl — to advertise for clients in his relatively new field. This is from his website:

There is a difference between marketing and lawyering.

Addendum #2 – See Max Kennerly’s take (Jamie Casino and The Super Bowl Ad: Just Because You Can Doesn’t Mean You Should):

…I’m dismayed by his negative portrayal of his former field, criminal-defense. In his prior work as a criminal-defense lawyer, did he break ethical rules? Did he conspire with clients to commit crimes? If not, then what’s the problem? What is he ashamed of? The ethical practice of criminal defense?…

February 3rd, 2014

Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!)

An old baseball of mine, that I had stitched back together to keep the leather on.

I found an old baseball of mine a few years ago. The white stitches that replaced the red originals were still in it from my childhood repair work. Throwing grounders in the street tended to chew things up.

We didn’t have megastores 40 years ago where you could buy them cheaply by the dozen. A baseball was precious. This one now sits on my desk in one of those plexiglass cases usually reserved for famously autographed balls.

While the calendar claims it’s winter, and Super Bowl conversation buzzing about, appellate lawyer Jay Breakstone sees spring. Pitchers and catchers are reporting to spring training next week, and the SCOTUS fantasy baseball league is getting ready to draft. He guest-blogged baseball a few years ago, and now returns.

Who says lawyers can’t write like poets?

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Everyone in my neighborhood knows that I am the lunatic who walks down his driveway every morning in his bathrobe to get the newspaper. It matters not whether there’s snow on the ground or it’s raining cats and dogs. Going out like that in the morning is my way of thumbing my nose at the seasons.

It says that I am alive and have not succumbed to winter’s cold. It shows that I believe that the sun will come up tomorrow, that there’s a bright golden haze on the meadow somewhere and that baseball will soon be here.

It’s not so much that baseball starts in the spring that makes it so life-affirming, but that baseball starts before spring that is. Baseball assumes, when pitchers and catchers report in mid-February, that the snow on the ground or the chill in the air is just a temporary affliction that time will heal.

The fact that I walk down the driveway every winter morning in my bathrobe to pick up my newspaper, encased in a plastic bag to protect it from the snow and the ice, means nothing to baseball. Baseball knows that somewhere, spring awaits. It knows it before the crocuses stick their necks out of my flower beds and it knows it before that first morning that I can go down my driveway barefoot without freezing my toes off.

Baseball is eternal; a child’s game played by men as if they were boys. There is no time clock in baseball; it is only played in one season – Baseball Season – and games end whenever they end, or when someone’s mother calls them home for dinner.

There is no death in baseball; fathers are fathers and sons are sons and they remain that way forever. There is nothing outside of baseball; it has it’s own rules and traditions, none of which makes sense in the real world, because baseball doesn’t live there.

Finally, there are no green vegetables in baseball, only Cracker Jacks and peanuts in the shell that you get to throw on the floor and no one yells at you.

Jay Breakstone, lawyer and wordsmith.

No matter what happens – – no matter what Congress does or doesn’t do, no matter if global warming has us frying or the polar vortex has us freezing, no matter which Kardashian suffers a urinary tract infection or if Jimmy Fallon succeeds or fails – – no matter what, on March 31^st the Mets will open their season against the Washington Nationals. A day game. A place for men to play hookie, once more, and for the world to be re-born, once again.

The magic words? Batter up!

(Jay Breakstone is the author of MondayMonday, his weekly ruminations on NY appellate practice and life.)

January 30th, 2014

But I Didn’t Write That Stuff on My Website!

Have you passed off your ethics and reputation to someone else lately?

The orthopedist was on the witness stand last week. He was well credentialed as defendant’s expert: top schools, top training, top position.

And then came plaintiff’s cross examination. The issue was the relationship between disc bulges and disc herniations. The doctor said there was a difference. And that bulges were the result of degeneration, otherwise known as the aging process.

(Some doctors are (in)famous for calling everything degeneration, because, you know, we start to degenerate when we are born.)

Then plaintiff’s attorney, Harlan Wittenstein, posed a general question to the doctor about bulges and herniations being the same. He denied it.

But Wittenstein, a seasoned trial attorney, just happened to have, oddly enough, a 24 x 36 blow up of the doctor’s web page where that assertion existed. He got it into evidence as a prior inconsistent statement. This was the website language:

A herniated disc, also called a bulging disc, ruptured disc or slipped disc, occurs when the inner core of the spinal disc pushes out through the outer layer of the disc.

…

Herniation describes an abnormality of the intervertebral disc that is also known as a “slipped,” “ruptured” or “bulging” disc.

The doctor kept saying, and I paraphrase here since I don’t have the transcript, ‘I see that its in my website, but its not true. I didn’t write it. Someone else writes the content.’

You know what happens when you outsource your marketing? Your ethics and reputation get outsourced also. And this applies to everyone, not just lawyers.