March 21st, 2013

10 Signs The New Matter is a Dog (Before you even consider the merits)

I’d been thinking of writing this post for awhile, and then Max Kennerly went and did a similar one, putting a fuse under my butt to get it done. His subject was Five Case Selection Tips for New Plaintiff’s Lawyers.

But while his was about the types of cases to reject, mine is more about the people that call. After being a lawyer for awhile, it becomes pretty easy to spot which cases are dogs…before you even consider the merits. Since the personal injury bar gets paid on contingency, vetting the case is pretty darn important.

We have a name for lawyers that don’t do a good job screening cases: Bankrupt.

So, without further ado, my ten quick and dirty rules for determining the case isn’t worth taking, regardless of its facts, and the potential client most likely shouldn’t be allowed in the door:

1. The call comes on Thanksgiving Friday, a real holiday, or some other time outside normal business hours. While that might be normal for criminal defense, for obvious reasons, it isn’t for personal injury law. If it isn’t important enough for the potential client to call when someone is likely to be around, the case isn’t likely to be any good.

2. The person refuses to speak to a paralegal. This means the potential client is familiar with law office procedures because the matter has been rejected many times before.

3. The potential client already has the medical records. This means the matter has been reviewed by others and rejected (though, in all fairness, you should find out who did the rejecting).

4. The request comes via email, but is not addressed to me with any salutation. This means the matter has been emailed to numerous lawyers.

5. The request is a manifesto. It usually comes in Word format, single spaced, many pages, and rambles all over creation. You are neither the first, nor the last, to get this screed. You will not make it past the first paragraph, as it is utterly unreadable. If there’s a point, you’ll never find it.

6. The person who demands to know right away what the case is worth. The answer is nothing.

7. The person who guarantees the defendant will settle quickly. No, they won’t, as the caller is ill-informed (or delusional) about litigation. (Kennerly has this one also.)

8. The person who won’t answer your questions when you interrupt to solicit important information, and plows ahead to tell the story the same way it’s been told to the last 20 lawyers.

9. The quarrelsome caller. When you hit them with the claims the defense will make, they argue with you in a manner that indicates they’ve heard these issues before.

10. The statute of limitations is about to expire. This means the potential client knew what the deadline was, and delayed. Even if the case has merit, this client will delay everything else once you get started. Don’t get started; the case isn’t as important to this person as you think it is.

Is it possible that there is a real case lurking within this list? Sure, anything is possible. But that’s not the way to bet.

March 20th, 2013

Sen. Rob Portman, Gay Rights, and Tort “Reform”

Last week Ohio Senator Rob Portman made headlines when he reversed his stance on gay marriage. For a Republican, that was pretty big news. He did it after finding out his son was gay and reflecting on the meaning of love, marriage and religion.

But that isn’t why I’m writing.

I’m writing because, in his explanation, he went beyond the love/marriage/religion elements to reflect on the proper role of government in society. He wrote:

British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives.

So if he, as a conservative, believes in minimal government interference in people’s lives, why does he campaign on giving big government protections and immunities with various tort “reform” proposals that close the courthouse doors to those seeking justice?

One of the first things he did as a freshman senator in 2011 was introduce legislation that would impose a new statute of limitations on medical liability lawsuits and cap punitive and noneconomic damages.

His political view is summarized here:

Medical malpractice costs and the mounting costs of defensive medicine must be reduced through sensible legal reform and better health information.
Source: www.robportman.com/1on-the-issues (11/22/2010)

Really Senator? Is that what limited government is all about? Interceding on the rights of people seeking justice by protecting big business and insurance companies?

If someone would be kind enough to forward this to Portman, he might also learn that the artificial caps he supports because of “defensive medicine” have been proven by empirical evidence to be a complete bust. Health care costs in Texas, which instituted artificial one-size-fits-all caps in 2003 didn’t go down. Costs have actually gone up.

So Portman gets a special twofer: His tort “reform” policy contradicts his stance on federal power, and the basis of his policy is factually wrong.

If Portman wants to reign in federal power, as he states in part of his argument favoring gay rights, he may wish to revisit his other positions that call for increasing that power. Especially when increasing it fails to support his theories.

More on the hypocrisy between conservatism and tort reform here: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

March 15th, 2013

The Death of RSS and the Rise of Twitter

When news broke yesterday that Google was dumping GoogleReader there were two kinds of reactions from bloggers noted Bruce Carton at Legal Blog Watch: Those for whom it was the end of the world and those who shrugged.

Carton was in full panic mode. I was a shrugger. I stopped using my RSS feed about a year or two ago, as it simply died a slow death for me.

And that’s because most anyone that I would have followed on RSS is placing links to their blog posts on Twitter. And Twitter also had the advantage of having (short) comments on those blog posts, which might also give you an idea if something was interesting or contentious. RSS was not just redundant, but inferior. (And, as I noted the other day, it can make you a better writer of legal briefs.)

Between Twitter, RSS, Facebook, LinkedIn, Google+, Instagram, blog post comments, YouTube, listservs, all manner of open discussion forums and whatever else is incubating now that I don’t know about, participating online can easily be a 24/7 job/hobby/distraction. But I have a real job and a real family, as most of you do, and I have to pick and choose. RSS lost. I also have an account at LinkedIn that I rarely check/use, I stopped using forums years ago, and I haven’t yet figured out what to do with Google+, or had the time to explore it.

I haven’t always been a fan of Twitter, and ripped it right after it came out. But I’ve come to appreciate its utility, an appreciation that comes only by carefully screening those I might follow.

When someone follows me, I generally look at their last three tweets (or “twits” as Scott Greenfield quite appropriately calls them). If those tweets are about a local accident, in the desperate hope the victim will log on to Twitter and find this brilliance, I know this is not a person to follow. So too with anyone in legal marketing. I need more phone calls and emails from these hucksters like I need a hole in the head.

But worse still are those that respond to an individual with something like “Ha!”, apparently forgetting that many others will see this gibberish, not just the one that sent the message being responded to. And even worse are those that write, “Thanks for the RT!” Thanks for sharing your insecurity with me by noting how important an RT is to you.

Why anyone would want this crap clogging their Twitter feed and rendering it useless is beyond me. Links and short comments on relevant stories are what works.

And you know those folks that are following thousands of others? It’s pretty clear such folks are not reading their own Twitter feeds. I don’t give a damn if they follow me or not.

Last year I spoke at a conference on social media down in Washington DC. And a woman that followed after me was hit by an audience question: If someone follows you on Twitter, are you supposed to follow them back? “Yes!” she cried, as that was the polite thing to do. I almost fell off my chair as I recognized the entire audience had just become dumber for having heard this.

Twitter can be a good tool that certainly replaces RSS. Just be sure to carefully cull the list of those you follow. You can follow me if you want (@Turkewitz) but don’t be upset if I don’t follow back. My brain has a limited capacity.

That’s my two pesos. Bruce Carton’s mileage will vary. And remember that no one will ever put the number of your Twitter follows on your headstone.

Elsewhere on the subject:

Really Simple Sign of the Future (Greenfield)

The End of GoogleReader: A Sign of Blogging’s Decline and Lessons for Lawyers (Elefant)

March 12th, 2013

Legal Briefs, Twitter Style

Lawyers love to write. And write. And write. Some “briefs” go on for dozens of pages, with the author often scrambling around in search of an issue, much to the pain and frustration of the reader.

Does using Twitter help, given that writers are constrained to only 140 characters?

Yesterday I tweeted a story from the NY Post about a lawyer that wanted to exclude all Jews from a jury, claiming that with his militant Islamist client “that there’s going to be inflammatory testimony about Jews and Zionism, I think it would be hard for Jews to cast aside any innate antipathy.”

But despite the limitations of Twitter, and the highly charged nature of the lawyer’s claim, a few lawyers were able to brief the subject anyway:

Max Kennerly took a shot:

Seems to me he could cure most of the assumed problems in voir dire, w/o categorical exclusion RT @bcuban @Turkewitz http://bit.ly/10tvuNP

And then Ted Frank:

@MaxKennerly @bcuban @turkewitz Inducing error at this trial gives client free bite at apple; if guilty verdict, new lawyer gets reversal.

And David Sugerman:

@tedfrank Huh? I’m no crim law expert, but invited error. Def gets reversal for getting relief def sought??@MaxKennerly @bcuban @Turkewitz

And Ted Frank again:

@DavidSug @maxkennerly @bcuban @turkewitz Ineffective assistance; plus defendant has standing to raise constitutional injury to juror.

Of course, because each lawyer was using the @ symbol to copy others, they were each using even less than the full allotment of 140 characters.

Did they do a full and complete job discussing the story? Of course not. But using very few words each of them undertook the most essential part of lawyering: issue identification. Because if you can’t identify issues, you won’t succeed writing any kind of brief.

Twitter, while a pretty big waste of time for many, can also be used as a teaching tool. If you force lawyers to state their case in 140 characters, it forces them to remove extraneous information and argument.

Legal writing guru Bryan Garner teaches lawyers to frame their issues in just 75 words. If you can’t do that, he argues, you haven’t sufficiently identified the issue and simplified your writing. Think of Twitter as a more extreme form of Garner’s 75-word rule.

March 11th, 2013

Accidents Turn Into Collisions

I thin I need a "Leaving Accident" sign.

I think I need a “Leaving Accident” sign.

Is the word “accident” falling away in favor of the word “collision?” It would seem so.

As per the New York Times yesterday, the New York Police Department will be investigating more car wrecks. In the process, there are two significant changes.

First, investigations will no longer be restricted to those incidents where someone has died, or is likely to die, but now will include cases where “there has been a critical injury or when a Police Department duty captain believes the extent of the injuries and/or unique circumstances of a collision warrant such action.” In other words, serious, yet non-fatal injuries. This is very good for those that were injured, though perhaps not so good if you were the one causing the injury.

But they they are also doing something else in the process, changing the name of the Accident Investigation Squad to the Collision Investigation Squad. This is a fairly significant change in language, for the word “accident” has built into it the assumption by many that an incident was unavoidable, like a deer leaping into the road at the last second. (See the last paragraph of the official letter: Accidents-Are-Now-Collisions)

But why would we use the same word for an unavoidable accident that we use for a very avoidable collision? We shouldn’t. And now that will change.

I had touched on this subject once before — and shame on me for not doing much more and permanently altering my own use of the word — when the BP oil spill occurred in the Gulf of Mexico. At that time,Tea Party darling Senator Rand Paul seemed ready to give a quick pass to BP, yelping “Sometimes accidents happen.”

According to Police Commissioner Raymond Kelly, “In the past, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.” The new nomenclature clears that up. Someone please send a note to Senator Paul.

Henceforth, we now have a solid citation for the argument that “accident” should be used for the unavoidable and “collision” for those that are avoidable. Thus, the dear that bolts into the path of your car is an accident. But the second car that plowed into you — because the driver was following too close — is a collision.

Let’s hope our judiciary also gets the memo.