May 31st, 2012

Being Called Gay Is No Longer Defamatory: Appellate Court

I don’t use this blog to cover gay rights — there are plenty of others out there that do — but there is a landmark ruling out of a New York appellate court today that reverses precedent, and says being called homosexual is no longer per se defamatory. Yonaty v. Mincolla. Since I do cover defamation on occasion, the decision is worth noting. (This comes on the same day that the First Circuit Court of Appeals found the Defense of Marriage Act unconstitutional.)

The reason for the decision? Growing acceptance of gays in society. The Appellate Division (Third Department) was clear:

Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se.

The overruling of prior case law represents a gay rights victory. And the court made that clear when it cited to the amicus briefs filed in support of this decision by the Lambda Legal Defense and Education Fund, Inc. and Empire State Pride Agenda.

The ruling comes about because the prior rulings were “inconsistent with current public policy,” another way of saying that society no longer views such a branding as per se shameful. This is the heart and soul of the decision:

That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in Lawrence v Texas (539 US 558 [2003]), in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution (id. at 578). The Court stated that people who are homosexual “are entitled to respect for their private lives” (id. [emphasis added]), but “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination in both the public and in the private spheres” (id. at 575). These statements of the Supreme Court simply cannot be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted.

This goes hand-in-hand with New York’s recent passage of the Marriage Equality Act that legalized same-sex unions.

Cultural reference worth noting: An old Seinfeld episode had a running gag about gays and the defensive response when discussing the issue of “Not that there’s anything wrong with that.” Now an appellate court agrees.

A few extra legal notes: This was a unanimous ruling by one of this state’s four intermediate appellate courts. There is no right to appeal to the highest court. For this the plaintiff would need to make a motion for leave to appeal. If such a motion is made, I think there is a chance it will be granted with the intent of our highest court affirming the opinion to make sure this is a state-wide decision.

Also worth noting, this is the first time in almost 30 years that any in depth analysis of the subject was entertained by one of our appellate courts. From the decision:

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was “constrained . . . at this point in time” to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing “social opprobrium of homosexuality” and “[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service” (id. at 241 [emphasis added])

There remain four categories of defamation per se, now that falsely imputing homosexuality has been knocked down:

(i) charging [a] plaintiff with a serious crime;

(ii) that tend to injure another in his or her trade, business or profession;

(iii) that [a] plaintiff has a loathsome disease; or

(iv) imputing unchastity to a woman”

Regarding this, the court wrote:

Defendant and amici argue – correctly, in our view – that the prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a “serious crime” – one of the four established per se categories.

And that, the court ruled, is not appropriate, no matter what past generations have held.

All together now: For the times, they are a changin’.

hat tip: NYLJ with more coverage

May 31st, 2012

Can There Be Liability When Texting to A Driver – Pt. 2 (Point/Counterpoint)

This is the second of two posts on whether liability can attach to a person that knowingly sends texts to a driver, on the theory of contributing to the driver’s distraction. Part one was by Ray Mollica.

Mark Bower now responds:

————————–By Mark Bower

Notwithstanding Mr. Mollica believing that he is right, or even knowing that he is right, I think he is wrong. However, a NJ trial-level court has agreed with him. The case was dismissed, and it seems unlikely that an appellate court will reverse that. Which demonstrates that although I am overruled, I am still right, and they are still wrong.

I note in passing the confounding misfortune that the plaintiff’s attorney goes by the nickname “Skippy.” Cute (or cutesy) names, or nicknames, that may be endearing in person, have a way of diminishing the seriousness of a case. That may have happened here.

The dismissal of this case, and Mr. Mollica’s confidence in his rightness, stem from the simple premise that the person sending a text message to someone driving a vehicle, owes no duty of reasonable care to anyone. That premise is presented as a self-evident axiom. Absent a duty, and the breach of that duty, there can no liability. Basic law school reasoning. But I don’t accept the “no duty” premise to be so self-evident.

That “there is no duty recognized anywhere for a person sending a text,” is likely factually correct (for now), but only because the sending of text messages is a new form of communication, and the law simply hasn’t caught up with the technology yet. The law evolves slowly, deliberately, and gradually, while technology progresses a lightning speed. So there is a lag time between them. The NJ case is an attempt to bridge that gap, and the judge deciding it wasn’t ready to make the leap. Eventually, some other judge will. It’s just a question of when.

The use of cell phones is now near-universal. Many homes have eliminated land lines, and depend on cellular service entirely. That process has taken around 20 years.

It has taken those 20 years for the state legislatures to catch up with the dangers of “distracted driving.” Eight states that have banned the use of handheld cell phones while driving: California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon and Washington. Police officers in seven states can pull over a driver if the driver is using a cell phone, even when no other driving offense has taken place. Cell phone use for bus drivers has been outlawed in Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and Virginia, All states except Alaska, Arizona, Florida, Hawaii, Idaho, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin and Wyoming have banned all cell phone use by teenage drivers. (Teenagers are more likely both to be involved in fatal car crashes and to talk on cell phones while driving.)

Teens are also the most frequent texters. Teenagers and drivers in their twenties and thirties are the most likely to text while driving.Texting is an even greater distraction than talking on a phone while driving. A majority of states have banned all texting while driving. The only states that have not are Alabama, Arizona, Florida, Hawaii, Idaho, Indiana, Maine, Mississippi, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas and West Virginia.

These evolving motor vehicle rules show that the law is gradually catching up to the technology and dangers of distracted driving. The next step is to catch up not just with the distracted driver, but with the person knowingly distracting the driver. (Actual knowledge – what the law calls “scienter” – is the key here.) The NJ case, although unsuccessful, presented a good (but not perfect) fact pattern for a test case. Cell records showed that the driver and his texting girlfriend had exchanged 62 TM’s that day before the accident. There was strong circumstantial evidence, and only a weak non-denial, that the girl knew her boyfriend would be reading and responding to her texts while he was driving.

The seeming fact that the girlfriend knew that her texts would be read and responded-to while the boyfriend was driving, is a crucial fact (and question of fact that would have to be proved at a trial) on which liability turns. Under the circumstances here – and assuming arguendo that the girlfriend actually knew the circumstances of her texting – I see no sensible reason to hold that the law imposes no duty to the public at large, not to distract the driver and thereby increase the likelihood of a distracted-driver accident.

Let’s try a slightly alternative scenario: A passenger riding shotgun is telling the driver a joke. So far, so good. The driver finds the joke funny, and laughs. OK…. The passenger wants to perpetuate the hilarity, and reaches over and starts to tickle the driver. Hmmm…. The driver laughs uncontrollably from the tickling, and an accident results. Would any reasonable person say the passenger did not share fault for this accident? Would a judge say the tickler has no responsibility as a matter of law?

Let’s make it more clear: The passenger and driver get into an argument. The argument turns physical. The enraged passenger punches the driver in the head; the driver loses control and causes an accident. No one would say the passenger has no responsibility.

The NJ judge found that the absence of the texter’s “physical presence” in the car was a defining distinction. To me, that is a distinction that makes no difference. To me, the crucial fact is that the texting girlfriend (supposedly) knew that her texts would distract the driver, but she didn’t care. She was oblivious to the dangers she caused. Why should “physical presence” or absence be the defining quality here, the line that is drawn? Although clear and easily understood, I think this is a meaningless distinction.

We want our law to be certain, so we know how to conduct ourselves in accordance with it. The problem is that there are infinite variations of circumstances and behaviors, so that absolute lines can’t apply well to the variables of every situation. The number of accidents due to drivers texting is likely to increase, and with that, so will the judicial awareness of the problem. Going back to lawschool 101, “the duty to be obeyed is defined by the danger that is perceived.”

That the judge in this one case did not perceive the danger clearly, and therefore did not recognize the duty, does not provide a long-term remedy. I predict the law will eventually catch up to the danger of texting a driver, and texters who knowingly distract drivers with their texting, will do so at their peril. We’re just not there yet… today.

May 31st, 2012

Can There Be Liability When Sending Texts To A Driver? Pt. 1 (Point/Counterpoint)

Today’s post is a two-parter, this representing a debate between two New York attorneys over a recent case in the news: Suit was brought regarding a car accident and the plaintiff sued the person repeatedly texting the driver, claiming that she should be held to be partly responsible for distracting the driver. The texter was not in the car. The novel case was tossed last week by a New Jersey court.

Stealing a page from 60 Minutes’ old Point/Counterpoint, and the delightful send-up of that show on Saturday Night Live (Jane, you ignorant slut…), we hear first from Ray Mollica. Mark Bower responds in the second post:

——————————————-By Ray Mollica

When I heard about “Skippy” Weinstein’s lawsuit which sought to pin liability against a young woman on the basis that she had sent text messages to her boyfriend while he was driving, and thus contributed to the cause of what was a horrific accident, I did a mental version of the facepalm. I immediately felt this was frivolous litigation and no good could come of it.

As the day went on, and discussions and comments with colleagues were had, it turned out that many in our profession did not agree with me, or at the very least, thought we should give a lawyer named “Skippy” the benefit of the doubt, as he was just doing his best for two clients who each lost a leg. Well, being who I am, I respectfully still believe I am right. Check that; I know I am, and my reasoning is fourfold, beginning with the more practical and moving outward to somewhat esoteric.

Initially, my thoughts went back to first year law school, and the elements of a tort: Duty, Breach of Duty, Actual Cause, Proximate Cause, Injury. Well, in this case we know of the actual cause: a car striking two very unfortunate persons on a motorcycle; and the proximate cause: the driver of the automobile being careless enough to distract himself by looking at a text message on a phone. The duty? Well, the only duties involved were those related to the driving of a motor vehicle. However, there was never any duty on the part of the texter. Rather, there is no duty recognized anywhere for a person sending a text, so therefore there can never be a breach of a nonexistent duty.

Next, my thoughts turn to the idea that should this theory be upheld by a malleable jurist, it would set the motor vehicle litigation industry partially on its ear. Without wanting to sound alarmist, it occurred to me that much energy would be devoted both pre and post-suit into finding out who, if anyone had texted or phoned the defendant driver at any time vaguely contemporaneous to the subject accident so that this person [persons?] could then be added as either direct or third-party defendants. Knowing that my adversaries had third-partied people with only the most tenuous theoretical liability [the driver of the car that was rear-ended at the stop light] it was no long stretch it was a near certainty to come to pass.

Furthermore, considering the often [though not always] overreaching blanket demands for cell phone and social media records, now it would appear that cell phone records would have to turned tuned over, including text messages, as a matter of and now under the rubric of “material and essential for the defense.” In this day and age of smartphones, this would include emails – emails that some might not want disclosed for a myriad of reasons, including attorney client privilege.

This moves me to the next point: for many reasons the public hold us in relatively low regard. As the old joke goes: “What do you call 500 lawyers on the bottom of the ocean? A good start.”

As people who sent texts to drivers – whether they had a reasonable belief that the person was driving and therefore liable will only be answered by litigation – involved in an accident are more and more drawn into lawsuits for reasons they will not find clever, or appreciate the attorney’s out-of-box thought processes, the status of our chosen business will become inexorably lower. They will hate us all the more, these jurors of ours, these voters being asked to support tort litigation reform. It would be terrible publicity, and “Skippy” Weinstein’s case already has been.

In the realm of public relations the “Trial Lawyers” are always fighting an uphill battle, and Mr. Weinstein and his 15 minutes just made the slope a few degrees steeper. This is just more ammunition to use against the plaintiff’s bar in a world where reading the comments section to an article relating the horrible story of a child killed by a mechanical rolling gate can make a practicing attorney nauseous.

Rather, it behooves attorneys to occasionally take a step back and look at the big picture. And the big picture is that while Mr. Weinstein was creative in trying to help his own grievously injured clients, it was bad for the rest of us as it made that many more people say “look at these lawyers!” and shake their fists at the sky in disgust.

Finally, as personal communication technology has exploded in the last decade, so has the attempts of the insurance industry to invade the spheres of cell phones and social media. I am of the opinion that we are rapidly creating a private [as opposed to governmental] “Big Brother” with companies seeking the authorization to access, read and download facebook pages, email, cell phone records and now text messages. Whenever a defense attorney asks my client if they have a facebook account, or I get a demand for some similar type of disclosure, I can’t help but ask myself if this is the world we want to live in. So I ask: is this the world we want to live in? Where every text is potentially an actionable deed? Will people in the future have to report their teenagers average daily texting for their homeowner’s policy?

As of this writing I have learned that the Morris County Superior Court Judge David Rand granted summary judgment dismissing the negligent texting claim. But the cat is out of the bag. There will surely be another case with very specific fact, and some other practitioner will do their damnedest to think out of the box, and differentiate his case from Mr. Weinstein’s, and we’ll be here all over again.

(Mark Bower responds here)

May 29th, 2012

BigLaw, Please Meet SmallLaw

(This is cross-published at Above the Law)

For the new ATL readers, let me introduce myself here in my first column. OK, screw that, I know you don’t really give a damn about me, so let’s jump to the meat and potatoes…

You all know that Dewey & LeBoeuf, filing for bankruptcy liquidation today, is the largest law firm to ever go bust. And that means a ton of people are now out of work, either scrambling to hitch their wagons to new firms or looking to start their own practices.

Because having your own firm is, to many, the Holy Grail of a law practice. Sure, some like the consistent fat paycheck, but the ranks of lawyers are filled with Type-A personalities who fantasize about practicing law the way they want to do it, not the way some other Type-A knucklehead has been telling them to do it.

There are only about a gazillion things to think about in starting your own shop: office space, support staff, technology and money to keep you going, to name a few. But today’s topic will be self-promotion and social media. And I don’t mean this in a good way, as in here’s how to go out and be famous on Twitter. No, no, a thousand times no. Instead I’d like to warn you about them, and help you save your soul.

You’re welcome. Pull up a chair, and let’s review some of the more dreadful attorney marketing over the years. We’ll start in the toilet.

And when I say start in the toilet, I am perhaps, exaggerating a bit, because what I really mean is over a urinal. Now I know that no one from BigLaw would ever stoop low enough to advertise over a urinal, but you should know that marketing opportunities come in all shapes and sizes and that someone, somewhere might try to sell you something that doesn’t quite pass the smell test.

Selling is what marketers do, and dreams of a steady flow of clients is what many lawyers want to hear. That is always the salesman’s pitch, figuring out what the mark wants to hear. (“Would you like to have more cases?”) But I don’t suggest you take the ghoulish pitch from the funeral home website. Or that you advertise in a jail.

I won’t belabor the point of lousy marketing strategies, because I think you get the picture. If you’re going out on your own — and letting everyone know you are out on your own — you may start fielding inquiries not only from the commercial end of the pool where you once swam, but also questions from friends, family and neighbors that may focus on the consumer end of the law. That means criminal, personal injury, matrimonial, residential real estate, etc.

Some of you will dabble, not wanting to turn away business and curious as to how you might expand your practice. And some of you might actually like it, as your clients are likely to be real people instead of corporations. In addition to getting paid, you might get the warm, fuzzy feeling of actually helping a fellow human. But because these are people that don’t usually use legal services, it is also the domain of the mass advertiser.

So, for my new ATL readers, this is the thing to remember above all else: Marketing is part of our ethics codes. So if you outsource your marketing you outsource your ethics. It isn’t complicated; the marketer is your agent that is speaking for you. When the marketer calls and emails, you ask yourself: Is this the type of person I want to hand my law license to?

You may think that the company is reputable. But that is only because you really haven’t been watching the way some of us outside the BigLaw cocoon have been watching. Instead of giving examples of how the piddling marketing companies screw up (urinals, funeral homes, jails) — perhaps you figure you’ll just be safe and hire the biggest and best? — let’s look at the Goliaths of the industry to see how well they have done.

First in the dock is Martindale Hubbell. One day it seems, some comment spam turned up on my blog. From them. That’s right, the great revered king of all kings in the legal directory business, was using black hat techniques to drum up business. By basically coming over to my place to stick a billboard for itself on my lawn. How did that happen? Because they weren’t actually doing the work, but had simply outsourced it to others (who may in turn have outsourced it yet again). So you should assume that no matter who you hire to market for you, it will end up being done by some kid in Bangalore, India who knows less than nothing about the practice of law and our codes of professional responsibility.

Next in the dock is FindLaw. What was their faux-pas? Creating crap. This company decided to create fax-blogs that did little more than repeat local news stories of accidents and then end with a links to the people that pay them. They were hoping that the people in the accidents would Google themselves and find the story and then click on the links to the lawyers that had paid FindLaw. At one point, I actually found them using the name of a dead child in the subject heading in order to lure in the family. Ask yourself: Are these the types of people that you want to hand your ethics over to?

So this is the essence of what happens: The lawyer outsources marketing (and reputation) to a non-lawyer marketing company, which in turn hires or outsources your marketing (and reputation) to yet other people.

Don’t say you weren’t warned. Welcome to the world of attorney marketing. Please drive carefully.

May 25th, 2012

Blogging and Guns Drawn and Memorial Day

A terrifying story over at Patterico’s Pontifications, written by conservative blogger and Los Angeles prosecutor Patrick Frey. This is a very short snippet:

At 12:35 a.m. on July 1, 2011, sheriff’s deputies pounded on my front door and rang my doorbell. They shouted for me to open the door and come out with my hands up.

When I opened the door, deputies pointed guns at me and ordered me to put my hands in the air. I had a cell phone in my hand. Fortunately, they did not mistake it for a gun.

They ordered me to turn around and put my hands behind my back. They handcuffed me. They shouted questions at me: IS THERE ANYONE ELSE IN THE HOUSE? and WHERE ARE THEY? and ARE THEY ALIVE?

Considering that the issue of free speech is how the cops arrived at his door, the story is extraordinary. Why they arrived at his door is the subject of his piece.

On the same subject, Popehat has a piece on why free speech is important, not just for those you agree with, but for those you don’t.

And Scott Greenfield has more on why it’s so important to pass the word around regarding these issues.

This is Memorial Day weekend. People fought and died for this country based upon its core principles. One of those principles is free speech. It’s something to think about when you see those flags in your neighborhood.