July 2nd, 2013

July 2nd: A Day to Celebrate Independence

Each year I have used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing is memorialized on our Declaration of Independence.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

June 28th, 2013

ABA Drops The Ball On Attorney Marketing

This post is about some lousy advice given by the ABA Journal regarding legal marketing, some of which may actually be an ethical violation in New York.

I have something to add to the skewering of the ABAJournal article done by Ken @ Popehat, but go read that first and then return: Plumbing The Depths of Legal Marketing: What Does the ABA Think You Should Do To Get Clients?

Welcome back. Before going on, let me agree with Ken and say that not all of the advice is bad. As per the ABA advice on how to market, for instance, this is good:

11.) Don’t adopt a false marketing persona. Be yourself, and figure out the best way to present yourself in a way you find appealing.

OK, I like that, and it fits with ways that I market.

But this is one thing that Ken discussed about that article where he missed a critical point, and it’s important because it actually may be an ethical violation depending on your jurisdiction:

13.) Providing they label it attorney advertising, personal injury lawyers may send ad letters to accident victims.

Blech. Lets leave out, for a moment, that this is degrading to the profession as Ken notes, and makes all lawyers look like Sunday morning whores, even if we don’t conduct ourselves in such horrid fashion. But in New York, this might actually be an ethical violation as it could violate our 30-day anti-solictitation rule. See, for example, NY Lawyer Solicits Snowbound Subway Victims (Does He Violate Ethics Rules?)

This is Rule 4.5:

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So part of the ABA advice could actually lead to an ethical violation depending on when it is sent. Shouldn’t that article have been peer-reviewed before publication?

But there is another downside to doing this, even if it might fall on the correct side of many/most codes of professional conduct.

You see, some lawyers have blogs, and I don’t mean the kind that are designed for search engines to read, but the kind that humans like to read. And some of those same lawyer-bloggers like to call out others for scummy conduct, even if it might appear to be on the correct side of the code of professional responsibility.

You shouldn’t assume that, merely because something might be legal, someone else might not take offense and decide to call you a scumbag for having done it. I could use a more polite word than scumbag, but the critic writing about you might not, so you might as well deal with that fact now and consider the consequences.

And that lawyer-blogger might do it with your name in the very Google-friendly headline and url, like this.

You know why I do it? When people in my niche go to pick juries, we don’t like it when jurors look down their noses at us and our clients during jury selection. When jurors dislike us, the scales of justice are imbalanced before we even start the trial.

So if you do something scummy that tarnishes the reputations of lawyers, I have no problem flaying you alive.

The ABA article says has this pearl of wisdom:

33.) Never criticize a company by name in a blog post. You never know when that company might be in a position to hire you.

And guess what? Some of us don’t give a damn about that, and we aren’t interested in our blogs being bland bits of pablum. See, for example, the heading on this post that you are now reading, as well as a few others:

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law?

Martindale-Hubbell: Now Sending Comment Spam? (How Does That Rate?)

Shpoonkle – A Lousy Idea for Lawyers and Clients

FuneralHomes.Com Digs Down Deep For Personal Injury Lawyers

Yodle and Attorney Advertising

Dropping comment spam, for example, might be legal. But look at the list of bloggers in this post who are more than happy to call you out on it.

It’s worth noting, by the way, that writing posts like those — the kind that the ABAJournal says not to write that criticize companies — are part of what put me in the ABAJournal Blawg 100 for the last five years and into its Hall of Fame. Ironic, no?

Marketeers beware. You’ve been warned. Yet again.

June 27th, 2013

Sold! “Tranquility Base” Goes Hollywood (Big Time)

How many different ways are there to say “Wow!”?

You know how I’ve written about my screenwriter brother a few times?

Like the time Justice Antonin Scalia gave him advice on a script? Like the time he took top prize in a screenwriting competition?

Well, breaking into Hollywood may be tough, but — you sittin’ down? — yesterday he sold his sci-fi space script, Tranquility Base, which one writer describes as “Lord of the Flies in Space.” It is now owned by:

Sir Ridley Scott and 20th Century Fox.

You read that right. Sir. Ridley. Scott. As in Aliens, Thelma and Louise, Black Hawk Down, and Gladiator. And the legendary Apple Mcintosh commercial 1984, and a boatload of other things.

Yeah, that Sir Ridley Scott, whose name you can now write in the same sentence as my brother Dan Turkewitz, which I just did right now thank you very much.

Am I bragging about my kid brother? You’re damn right I am.

But not just because he wrote a great story, and not just because he has a desk full of other scripts ready to go, but because of his dogged perseverance in the face of frustration and adversity.

He knew no one in Hollywood when he dropped architecture and started writing in 2000. Not a soul. Want to know how tough it is to break into that tight circle when you don’t have an intro from someone else? Virtually impossible.

He sent out thousands of individualized pitch letters over the years — to directors, producers, actors, agents, lawyers and possibly a few doorman, just trying to get his stuff read.

The long, long road to Hollywood looked something like this:

It started with simple pitch letters. Wave after wave, which didn’t seem to get him very far. The first script was a bank caper involving an architect designing an office tower with a bank as the main tenant, and who is blackmailed into designing a heist into the blueprints. After over a thousand letters sent to 250 companies, he got it optioned, but never made. That was the closest he came until yesterday.

For several scripts he created DVD boxes for the prospective movie, with whatever actor, producer or director he was pitching listed in the credits, and if actors, their pictures on the box.

For one script he created tee shirts. The script, a comedy, involved squirrels, so there was a cartoon squirrel on the shirt, and each shirt had a unique web address that would pitch to whoever was getting the shirt.

For one script with a female lead, he sent a pitch letter along with flowers to a few film actresses who were appearing on Broadway. Figuring out how to get past the wall of agents, managers, and assistants that surround actors is an extraordinary challenge, but he figured if someone was appearing on Broadway, he’d know exactly where she could be found.

It worked for the very first actress, as he got a script to Helen Hunt. Unfortunately that was the only time the flower trick worked. The one success with Hunt led to a wave of letters to TV studios. He found a website that listed talk show guests two weeks in advance, and sent letters to actors at the Letterman, Leno, and Oprah studios, among others, a few days in advance. None of those paid off.

For Tranquility Base, the script that finally broke through, there’s been quite a few twists and turns. The marketing began before the script was written. When it was just a 15 page treatment he reached out to the NASA community to see if he could get someone who’s actually flown in space to help out.

He was lucky enough to connect with Captain William Readdy, who flew three missions on the Space Shuttle and spent over 672 hours in space. Captain Readdy’s feedback helped steer the story in the right direction, and being able to say an actual astronaut helped as a story consultant helped get people’s attention.

My brother built a website, hired an artist to draw some concept art and, of course, made DVD boxes. After the script was finished and won a screenplay competition, he managed to get an active duty astronaut who can’t be named who lived in the Space Station to review the script and help him make it even better.

And then, finally, he entered the Launch Pad Competition, a first year contest run by industry website The Tracking Board. It had an impressive list of people who would be judging, if you made it to the Finals.

A couple weeks ago, Hollywood mucky-muck Brooklyn Weaver saw the script at Launch Pad, read it, loved it, pitched it, and got the deal done.

Rest assured, my brother didn’t get where he is these past 24 hours by sitting around eating Cheetos on the couch.

And so, to all those others out there banging on doors, just trying to pry one open and jam the foot in, let the lesson ring out loud and clear: It can be done. All you need are the two things that my brother has:

1. Talent

2. Dogged perseverance

‘Scuse me while I kvell.

June 25th, 2013

Justice Alito Acting Like Rookie Lawyer

Samuel Alito at 2010 State of the Union. Photo by Charles Dharapak/AP, via The Atlantic

It’s one of those things that lawyers learn early on: keep a professional demeanor in court. You will get your chance to argue. Making faces while your opponent argues exposes a childish temperament.

But someone forgot to teach that to United States Supreme Court Justice Samuel Alito, or he failed to learn the lesson. According to this piece in the Washington Post today by Dana Milbank, Alito has been acting like a middle schooler with his facial expressions when others dare to disagree with him.

I won’t steal all of Milbank’s words, but here are a select few as he describes Alito’s facial expressions when a judge 17 years his senior dares to have a different opinion than he does:

When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

If this happened as Milbank describes, there is frankly no excuse for it. I’ve seen judges admonish counsel who did this during oral arguments.

But it wasn’t the only time Milbank saw this:

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

And the country as a whole watched this during the 2010 State of the Union when President Obama criticized the court for allowing unfettered corporate spending in political campaigns with its Citizens United decision, with Alito shaking his heads and mouthing a protest. The other justices kept their poker faces intact.

The eye-rolling behavior witnessed yesterday by Milbank, by the way, was also noted by Garrett Epps writing for The Atlantic. He noted about the inexcusable rudeness:

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito’s display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito’s mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

Once upon a time Alito was a federal prosecutor. Did he roll his eyes and make faces to the jury back then when defense counsel spoke? Or was he able to refrain because, as a prosecutor, he could pick the cases the wanted — ones that, perhaps, had overwhelming evidence in his favor — and was never seriously challenged by an equal?

If I were a judge and saw that type of disrespectful conduct from counsel, I would think in terms of admonishment. Repeat conduct could be subject to sanctions.

Notwithstanding this, I’d love to meet him. With all his facial tells, perhaps I can persuade him to come by for a poker game.

June 21st, 2013

Why Arbitration is Rigged Against Consumers

The United States Supreme Court put arbitration back in the news yesterday, by deciding a case in favor of American Express and against a restaurant (American Express v. Italian Colors Restaurant). The restaurant had a $40,000 claim, but to prove it would cost about $1M. They wanted, therefore, to proceed as a class action with others similarly aggrieved by American Express policies, as that is what class actions are made for: allowing small claimants to aggregate to make justice economically viable.

Justice Scalia, writing for the majority, says boo hoo and too damn bad if the courthouse doors were slammed in their face due to a contract:

“Respondents argue that requiring them to litigate their claims individually—as they contracted to do—would contravene the policies of the antitrust laws. But the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”

Justice Kagan, writing in dissent, calls Scalia on what he did:

Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.

I won’t get into further details, as it is covered elsewhere, such as here:

The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy (Mother Jones)

Details: American Express v. Italian Colors Restaurant (SCOTUSBlog)

SCOTUS Decision in American Express v. Italian Colors (CivPro and Fed Courts Blog)

I write instead to briefly explain why pro-consumer groups hate arbitration agreements that are forced onto consumers in the fine print of countless agreements.

Corporations appear regularly in front of arbitrators, but unlike judges, litigants get to actually pick who they appear before. True, the choice of arbitrator must be done with the consent of the consumer, but the consumer is likely to appear only once and not be the frequent flyers that corporations are.

Arbitrators have, therefore, two customers in front of them; one that regularly hires them to arbitrate and the other appearing as a one-off. Who does the arbitrator want to make happy?

You might think that the arbitrator would just do what is fair, but fair is a flexible term. Arbitrators know that if a defendant-corporation deserves to be hammered in the verdict, and they do exactly that in their decisions, then the company is likely to blacklist the arbitrator from their “approved” list.

If you were corporate counsel, wouldn’t you be tracking which arbitrators have given favorable verdicts and which ones not? Wouldn’t you be selecting only the favorable ones? Wouldn’t you have an “approved” list?

And if you are an arbitrator, wouldn’t you want to be on that list with a constant flow of business?

The consumer, of course, doesn’t have the advantage of appearing often, and even with counsel, the counsel is unlikely to be have as much business in front of the arbitration company as the corporation.

There are times, of course, when a plaintiff may want to arbitrate, such as circumstances where speed is of the essence due to age, or the cost of experts exceeding the value of the case. That’s fine, so long as it’s elective.

But that isn’t what’s happening lately as corporations rush to put compulsory arbitration agreements in every consumer contract they can find.

Congress should act to reverse this decision. Given the staggering sums of money that corporations give to candidates, of course (courtesy once again of the Supreme Court in Citizens United v. Federal Election Commission), that is unlikely.