May 15th, 2013

Lawyering Under the Lights (And Thoughts on the Rakofsky Dismissal)

OK, the Rakofsky v. Internet decision is in, and the motions to dismiss were all granted. The motion for sanctions was denied. (Your familiarity with the facts will be assumed.) You can read a variety of opinions on the subject here: Simple Justice, Techdirt, Popehat, Lawyernomics, Philly Law Blog, My Shingle.

But I’m not writing to rehash the opinion (Here, if you want to read it). I’m writing instead because of the bizarre scenario that occurred where I wore three different hats. And to give my thoughts on standing my ground in this fight.

First I was a blogger that mentioned Rakofsky in a post about attorney advertising.

Then I was a defamation defendant telling him to go shit in a hat after he sued me for stating my opinion, along with a gazillion others.

And then I was local counsel for 35 defendants (16 authors). Almost all of them were highly opinionated attorneys, had law blogs, and knew perfectly well how to stand on their own two feet in the well of the courtroom. (Client list) There wasn’t a flinching fawn anywhere in this group.

I took the gig as local counsel because I assumed it would be easy. The case clearly had no merit, would need a simple motion to dismiss, and **poof** it would be gone. I figured six months, tops, and First Amendment guru Marc Randazza was going to do all the heavy lifting as our pro hac vice counsel while I worried about local procedure on my home court.

Now lawyers working either on contingency or for a flat fee make those kinds of calls all the time, balancing the time they think they will invest in a matter against the value gained. But this took two years, confounding all expectations, and required a lot of extra time with some pretty sharp minds looking on. While I’ve had high profile cases before — including one that hit 60 Minutes some years back — I didn’t have blogging lawyers as clients and a profusion of popcorn eating armchair pundits looking on and reading the filings.

Most readers only know me through this blog, not by watching the actual practice of law. I have a separate website for my law practice (which I still hate), and I do that on purpose. The contents over here are opinion and news, and the contents over there are a digital brochure for lawyering. I rarely link to the website, or even mention it, and it’s seldom visited relative to this blog’s traffic. People here don’t watch me practice law.

But everything was now different as I became a crazy cocktail of blogger, defendant and lawyer — shaken (not stirred) together. And folks were watching.

Given that blogger/defendant/lawyer brew , it puts me in a good position to shed some light on why this took two years, as some have criticized New York’s judiciary system for the delay. This is the short version of the procedural morass — including plaintiffs’ counsel quitting and our first judge retiring:

We had jurisdictional failures with almost all the defendants on the original 72 page complaint;
We had an 82-page amended complaint almost immediately with new parties, with yet more jurisdictional failures;
We had opposition to a simple pro hac vice application;
We had the plaintiffs trying to take papers from a motion to be relieved as counsel, altering them and trying to submit them in another motion;
We had plaintiffs’ counsel quit soon after the suit was started — and while the individual plaintiff could proceed on his own, his corporation was required by state law to have counsel;
Plaintiffs sought and obtained a stay so they could find that new counsel;
We had multiple attempts by plaintiffs to modify the stay they had requested, so that only they could file papers, including attempts to add new parties and amend the complaint a second time, with a 268 page, 1,223-paragraph opus ;
We had our judge extend the stay, and then retire;
We had the matter re-assigned to a new judge that was swamped with new cases that he had to dig out from under;
We had an extraordinary number of defendants all making motions.

I know that this seems like a lot, but it really is the short version. It should have been simple, but it wasn’t. That sucks for those involved, but really, what were the odds that the plaintiffs’ lawyer would quit and then the judge would retire? Those were both biggies.

Is it possible the case could go on further with an appeal? I suppose it is, but as pointed out elsewhere, the judge was quite charitable toward Rakofsky by not sanctioning him, perhaps believing he’d been punished enough with the scathing online commentary, albeit much of it brought on by his own conduct.

But appellate judges might not be as dismissive as the trial court was of his having held himself out as a New York lawyer and putting a New York law office on his letterhead when he’s not admitted here. Leaving aside the cost of an appeal, there is much to lose by having appellate judges look at the conduct that many were already criticizing.

I gave up long ago trying to make predictions about this case, so I won’t make any here about whether it’s truly over. In fact, I try not to make predictions on any of my cases since the vagaries of life and litigation tend to upset the prediction applecart.

But assuming it is over, since that is what logic tells me, we move to the ultimate question: Was it worth being part of the defense team?

The answer has to be yes. The clients I have are like-minded individuals that cherish the First Amendment and are willing to fight for it. They could have easily ponied up the $5,000 that Rakofsky wanted early on to make the case go away, but they elected to fight. These are the types of people you want in your foxhole.

The message should go out loud and clear to all that consider bringing a frivolous suit against us. We make our living within the justice system, many of us by battling in the courtroom well. We have a pretty good grasp of how the courts work and the bounds of our freedom to speak and to write that are immortalized in the Bill of Rights.

We think it’s important to shine a light on ethical issues that we see with respect to attorney conduct that we believe crosses red lines, in the grand hope that such light becomes a disinfectant for the legal community. We do not want to see the cops’ Blue Code of Silence or the medical community’s White Coat of Silence darken our profession.

We will not cower or wilt under fear of empty threats or vacuous suits. Those that attempt such intimidation will find hardened and opinionated citizens who don’t care to relinquish our rights to speak freely. We know how to stand on the ramparts to fight for those rights, and we know how to win. Representing such resolute individuals, despite the procedural shambles that ensued, has been my honor.

Was it worth doing? You’re damn right it was.

May 6th, 2013

The Latest in Law Firm Marketing

We interrupt this blog to bring you a special announcement on the latest and greatest in law firm marketing.

As you can guess from the picture to the right, my answer is not about phony press releases like this that are little more than advertisements with links to obtain Google juice (this link is coded “No follow” to avoid that problem).

And it isn’t about creating fake law blogs, or flawgs (a great portmanteau), in order to create empty content that Google indexes in hopes to game search engines so that potential clients will find you.

And it isn’t about amassing gazillions of Twitter followers with less-than-candid personal profiles.

It isn’t about outsourcing marketing so that others can leave comment spam on blogs in the name of the law firm.

No, I am here to announce that the best attorney marketing — other than the obvious one of doing a good job for your clients, who in turn refer you to others, a tactic that seems to get overlooked by the marketeers — is the tactic that is close to home. Do something in your community. There are approximately one gazillion ways to do this.

Being involved in the community isn’t a bad way to have people learn who you are and what you do while also providing muscle, brains or perhaps some financial support so that kids can, for example, take part in the national pastime. It’s the same approach used by generations of professionals and businesses of all stripes.

That’s right, this year’s winner of the best marketing technique is the same one I discussed back in 2010 when I got disgusted by all the marketeers pimping the “leads” they could get me for new cases from their attorney search services.

As I’ve told more than one cold-caller: I don’t have leads, I have clients. Humans are not commodities to be bought and traded.

I like to think of my version of marketing as an all-around win-win. It sure beats placing your firm name over a urinal.

And, by the way, since I know you were wondering, the kid on the mound to the left is the same one previously featured with his skateboard.

He done good this weekend. Thanks for asking.

May 2nd, 2013

The “New Normal” After Boston?

In the wake of the Boston Marathon bombings, I wrote down some of my thoughts about the event (Boston Marathon Bombing — And the Lives We Lead), since the race is one of my favorites. One of those thoughts, at the end, was this:

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

This guest post below addresses that very theme; it was an essay written by my running club president Steven Stein for our weekly newsletter, which went out last night. Last weekend he ran a race in Central Park and noticed that things had changed. A lot.

Since Stein grew up outside the U.S. he brings a perspective different than most to the concepts of freedom and security. It is reprinted here with his permission:
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It was a clear, crisp, beautiful spring day. 7:50 a.m. on a Sunday morning and New York City was just beginning to wake and stretch. The drive into Manhattan from New Rochelle was quick and uneventful, and I parked in my usual parking lot on 66^th Street just a short block walk from Central Park.

Everything was familiar and normal. The temperature was in the low 50’s and I decided there was no need to check a bag for the race. This decision was made in part due to the pleasant temperature as well as a warning from New York road Runners that new security measures had been put in place since 4/15/2013, the Boston Marathon.

As I headed up the parking lot ramp onto the street, I saw the normal flurry of activity on the streets. Runners with their race bibs pinned to their shirts were scurrying towards the park. Parents were leisurely pushing strollers towards the park. In fact, everyone I saw on the streets seemed to be gravitating towards the park on this sun filled morning. A perfectly normal spring day in New York City.

I entered the park on Central Park West and 67^th Street, by Tavern on the Green. This is when I first encountered the New Normal. A Security Checkpoint! No entry without being asked to show contents of your bag, including the contents of my Spi Running Belt strapped around my waste.

Mixed emotions. I was happy that there were new security measures in place to keep us all safe. Then I thought; “will I ever be able to walk into the Park without being subjected to a security search? Is this New Normal just applicable to events in the Park, or are these permanent measures?”

A few hundred yards into the park, I saw a young guy looking inside his backpack on a park bench. Did he go through security screening? Should I tell someone I saw a backpack? What did this guy look like? Should I remember his face? What is the new normal? What are the rules? Why is a perfectly normal morning being spoiled by these abnormal thoughts?

As I made my way deeper into the park, in the distance I saw the normal long line of Porta Potties. Good thing they are still at the race. Something’s normal. But as I got closer, I saw that the New Normal included a checkpoint to get into the Porta Potty Area. A big Yellow sign read Security Screening Area.

I looked left, and I saw a NYC Police security crane with a security booth lofted 40 – 50 feet into the air with cameras pointed in every direction. Another Big yellow security signs read. Attention: Due to Enhanced Security Measures, Baggage Will Only Be Accepted In The Provided Clear Bags. Another New Normal. The $25 New Balance red backpack I purchased last summer specifically for race-day will now lie unused in my closet at home.

This was my first organized race since April 15th, and the National Anthem took on a deeper, more meaningful meaning than ever before, as I thought about those who lost their lives and those who were badly injured in Boston. I thought about the land of the free and the home of the brave, and how thankful I was to be living in the greatest nation in the world. The word Free stuck around in my mind for quite some time. Are we becoming prisoners in our own free land?

The race itself was as normal as it ever was. Crowded in the beginning and then it opened up after the first half mile. After the race I walked over to the post-race festival, set up to support lung cancer research and awareness through the Thomas G. Labrecque Foundation. In its 10^thyear, the event was founded in honor of former Chase Manhattan Bank chairman and CEO Thomas G. Labrecque, who died of lung cancer at age 62. Labrecque was the model of good health and a non-smoker all his life.

Another security checkpoint to get into the festival area on Ramsey Field!

As I made my way back to the parking lot on West 66^th street, my thoughts turned back to the New Normal. Is this just a knee-jerk reaction? Are the organizers and security professionals worried about copy cats? Was this a reaction to an isolated incident in Boston, or should we be expecting these events on a more frequent basis? Will security measures be eased any time soon?

Whatever the answer, there is a New Normal. Just like 9/11 changed forever the way we fly, the way we travel, and the way we enter buildings, the Boston Bombings have changed the way we gather and congregate for our organized races. We say we will not be defeated, we will not be terrorized. But they have already changed what is normal, and enforced a new, less free normal existence upon us. What is the right balance between being prudent, protecting a crowd from a repeat incident v.s. being free and not thinking about such threats all the time?

I grew up in a country where we left our front doors open when I was a young kid. As the country became more and more riddled with crime, most houses installed burglar alarms. Soon alarms were supplemented with burglar bars on every window, then a security gate on each exterior door, and in no time high fences and walls surrounded most residential properties, then electrified fences were installed, and each neighborhood had a private security company on call to protect you as you arrived home and walked you to your front door.

Ten years went by and we realized we were living in our own fortresses. Free in our own self-created prisons. With each security feature added, at first it was uncomfortable, but we soon got used to it and it was normal. But when one looked back at the open doors with no gates and no alarms to the prison we had created for ourselves, it was an enormous change.

My point – although I do not have a solution, lets be prudent about what security measures we put in place, let’s be safe, let’s rely on the security professionals and law enforcement to protect us, but let’s be careful not to imprison ourselves in our own free country.

April 29th, 2013

The Fallacy of Loser Pays in Tort Litigation

Last week at Overlawyered I had a little back and forth with its publisher, Walter Olson, on the concept of a loser-pays system. For those not familiar with the idea, this specifies that the loser of a lawsuit pays the legal fees of the winner. This is in contrast to the “American Rule” that says, generally, each side bears its own costs.

There are exceptions, of course, such as legal fees being part of a sanction for frivolous litigation, but we deal here today with the general rule.

There are two issues regarding the rule: The first is that it effectively closes the courthouse door to much of middle America. On one side in a typical tort case is likely to be a multi-billion dollar insurance company defending an auto collision or medical malpractice case, and on the other a person who may be struggling to work, or incapacitated and trying to figure out how to pay the mortgage or rent.

One side has incentive to run the meter and stall, and can readily afford to do so. If the litigant loses a simple issue of “who had the green light” then financial devastation may follow, but there is no such threat on the other side. The parties are not equal and the scales of justice unbalanced.

But the second issue is more interesting to me here because it deals with even broader public policy issues, and that came up with Olson’s comment responding to me:

A “legal system that only the wealthy can use” is not an accurate description of the pluses and minuses of the legal systems in the great majority of advanced democracies where loser-pays is the norm, such as Canada, the U.K., Scandinavia, the Netherlands, and so forth. It does, unfortunately, accurately describe some sectors of the American legal system (such as small high-merit claims and many injunctive matters) where neither fee shifts nor contingency fees are available. Oppose loser-pays if you like, but enough of the sloganeering.

The U.S. system here is compared to other nations with reputations for significant social service programs (and high taxes to pay for them). Universal health care is the most obvious example. The U.S., by contrast, has far less government involvement with our lives and some of the lowest taxes of any industrialized nation on earth.

If we close the court house door on people by making it more difficult to proceed, then what happens to those already injured? Well, they absorb the costs themselves until they are poor enough for the minimal social service programs that we have and then the taxpayer picks up the tab. And they remain poor, having now been victimized first by the negligence of others and then again by being forced to bear the financial burden.

The American Rule, as it now stands, is consistent with the parties working things out privately in court with minimal government intervention. Sure, verdicts can get tossed out if they are true outliers, but for the most part verdicts are respected.

The interesting part about this political discussion, I think, is that last week Overlawyered became affiliated with the Cato Institute, a libertarian think tank. While I certainly wouldn’t want to speak for them, it seems to me that a loser-pays system (and other tort “reform” measures that give protections and immunities to those who are negligent) garners greater government involvement in the lives of the populace, contrary to its own political philosophy.

If we want to shift the costs of injuries caused by negligence away from the tortfeasors and onto the backs of the taxpayers, then we need those Scandanavian government economies to accommodate that shift and provide the support.

The U.S., I think it’s clear, isn’t going that way. We are faced with a choice as to whether we let parties duke things out privately or let the government come in with support. A nation can have one or the other. But what we can’t have, is both the stripping away of private rights at the same time that we have limited government support. That is not the model used by any industrialized nation that I know of.

April 22nd, 2013

Ignoring the Lawyers (Sports Glasses Edition)

Oh look! Another shiny new gadget! What could possibly go wrong, besides, you know, everything?

From the New York Times yesterday:

Oakley, the eyewear company, makes a $600 ski goggle that comes with a warning in the package: Do not operate product while skiing.

Zeal HD camera goggles allow athletes to make videos.

It is an admonition that should be taken with a grain of salt, said Chris Petrillo, a product manager at the company. Of course, he said, the digital goggles are meant for skiing and snowboarding.

“Welcome to the world of lawyers and litigation,” he said.

But maybe the lawyers are on to something.

There are lots of people out there that like to make fun of warning labels, often because they are placed in silly places and say silly things. Like a bag of peanuts that warns it may have been produced in a plant with nut products.

Perhaps Chris Petrillo is one of them. The Oakley lawyers see a dangerous product and then the company laughs at its own lawyers. Because, you know, the lawyers are all just a bunch of chuckleheads. Who would really listen to what the lawyers are saying, right? Wink. Wink.

So here’s the deal, the article describes a wave of new goggles and sports glasses coming out that give real-time feedback to the participants, right there in the glasses. Video, text messages, phone, the whole enchilada.

But if you are skiing, running, biking, etc., then real time data is exceptionally difficult to receive and process because you are actually engaged in a high octane activity that requires your senses. Even listening to music on an old time Walkman or modern equivalent can be dangerous when used in outdoor sports — a widely ignored warning — as it can distract and disconnect the listener from the environment.

This is not an improvement over a quick glance at the watch, as one industry participant claims in the article. Your eyes still have to refocus to the image and then refocus again to your immediate surroundings.

I wrote about this previously with Google Glass and the dangers of distracted driving. Distracted skiing/biking/running may be slightly less dangerous, but if you’re the person that gets hit by the skier this will not be a consolation.

Want to stick a Go-Pro camera on your chest or helmet to film your family and friends? No problem. Want to put text messages in the users field of vision while they are moving? Big problem. Big problems indeed.

Hospital number crunchers will love this stuff as it will bring in more injured. The goggle company lawyers? Well, they probably get paid by the hour, so perhaps they like it too. Unless, of course, they actually want to protect the company, in which case they aren’t too pleased.