April 1st, 2012

Today is April Fool’s Day

Yeah, yeah, I know, it’s April Fool’s Day and you expect me to run a gag, simply because I’ve done one each of the last four years. But you know what? Fuhgeddaboudit. It isn’t easy pulling off a hoax when people are actively looking.  And with this being Sunday, even if I did run one, it wouldn’t get any traction.

So it’s time to retire and simply rehash my prior four gags for the few people looking in today:

I started in 2008 with a decent one about the Supreme Court granting cert in an existing fantasy baseball lawsuit. As I told it, many of the judges were in a Supreme Court fantasy league. Some recused themselves feeling there was a conflict while others did not. The subtext of the gag was the very real issue of when SCOTUS justices recuse themselves and the fact that those decisions have no review at all. That nabbed a bunch of people who didn’t see it coming.

I followed up in 2009  when I put this blog this blog up for sale on eBay. The subtext there was the wretched state of social media and constant use of blogs to sell, sell, sell.

In 2010 I did a fun gag that snared the New York Times when I announced (with considerable support from co-conspirator blogs) that I had  been appointed White House law blogger. I also learned something else; readers were actually checking in that morning to see what kind of stunt I would pull. How early did they check? Well, the ABA Journal ratted me out at 6:46 a.m. central time. I was lucky that the joke still had legs, thanks to all those that were in on the conspiracy and “confirming” my appointment (and that the Times didn’t find the ABA posting with a simple Google search).

But when you add in the considerable post-joke kerfuffle that took place about whether such jokes are ethical violations, that it was the subject of a Disciplinary Board comment from the Supreme Court of Pennsylvania, and then add that the joke landed in a New York Times mea culpa editorial,  it became clear to me that my days as an April Fool’s gagster were just about done. Too many people were watching.

Last year I was able to run just one more, by organizing a web ring of 23 blogs to laugh about how the Times was, incredibly, taken again. The joke was on the thousands of readers who — eagerly wanting it to be true — went running from blog to blog to find out exactly how the Times was punked. The Times wasn’t; those wanting to laugh at the Times for getting taken learned that the joke was on them.

I think most will agree that the time to hang up my jester’s hat has arrived. I won’t use this blog today for an April Fool’s gag. But fear not, someplace out there on the web there are hoaxsters and pranksters of all stripes with their digital whoopee cushions. And someplace, somewhere some folks will get gotten because they weren’t wary, or if the gag is really good enough, despite it. It just won’t be here.

My apologies if that is what you came looking for. If you’re looking for a legal chuckle, you can check out the legal disclaimer I’m in the midst of drafting it for my trail race. Yes, it is real, even if it still needs a few edits.

 

March 30th, 2012

Rakofsky Motion #13 (ABA Moves to Dismiss)

I believe this is the final motion to dismiss being made by defendants in the Joseph Rakofsky defamation case. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is our pro hac vice counsel.

The defendants for this motion are the American Bar Association, the ABAJournal and two of its writers. Defense counsel  is Mark Harris and  Jennifer Jones of Proskauer Rose. The first article by the ABAJournal claimed to be defamatory is here. The second is here.

Pertinent documents for the motion to dismiss:

Memo of Law

Debra Cassens Weiss Affidavit

Sarah Randag Affidavit

 

 

March 29th, 2012

Trial Lawyer Lobbying in Albany (A lot or a little?)

It is often said —  but only by those who scream for tort “reform” — that the reason the laws on personal injury and personal accountability don’t change is because of all the money that trial lawyers pay to lobbyists and to political campaigns.

Well it seems that, when it comes to lobbying in Albany, we trial lawyers don’t even crack the top 10 according to this just-released report by the New York Joint Commission on Public Ethics (download report). But, look who does make the top 10:

 

And if you are wondering about the top dog, the Committee to Save New York, it is a business group of mostly real estate developers.

One day I’d love to see a study of how much the Fortune 500 companies donate to campaigns and compare that to donations by consumer activists.

Something to think about.

Oh yeah, we trial lawyers spent just 355K for lobbying according to the report:

 

March 28th, 2012

A New Personal Injury Waiver (Updated x2)

Running the trail, December 2005

I don’t think I’ve ever used this blog to crowd-source actual legal work, but, what the hell…

As regular readers know, I not only like to run (Boston Marathon in three weeks, if the hammy stays healthy) but am also the founder and race director for a half-marathon trail race in Westchester County.

This puts me at the junction of two concepts: First, putting on a fun running event, and two, trying to avoid potential injuries for my athletes and lawsuits.

Now, generally speaking, an athlete can’t successfully sue a person or organization putting on an athletic event due to the concept of assumption of risk. Assumption of risk means, generally:

By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

So how does a lawyer protect the organizers? Well, since the time of the dinosaurs, it has been by WRITING IN ALL CAPS BECAUSE IT IS SO EASY TO READ and using godawful legalese. This also ensures that no one actually reads the piece of paper that will get waved around to defend a lawsuit later.

But — and you knew there was a “but” coming didn’t you? — it isn’t that I’m worried about being sued, what I want first and foremost is to prevent injury. So I wrote my own waiver, trying to make it as readable as possible. And I offer it up now for your comments as to what it is missing or how it should be changed. Without further ado…a waiver for a trail race…

I realize that this trail has plenty of rocks, roots, stumps and other tripping hazards. There are two stream crossings with stepping stones. The trail is narrow at times and could be crowded as faster runners overtake slower ones. There might be poison ivy, ticks, bugs, bees and other woodsy things you find in the great outdoors. (Is this a great waiver, or what?)

Wind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Vandals may swipe trail markings. Race officials may deliberately create extra hazards.  Just for fun.

I’ve also been informed that there are a number of wooden catwalks, whose condition varies with their age and the weather. Those boards can become damaged in storms, or simply be jarred loose by other runners. They are also very slippery when wet. I agree to stay in the center of these walks and will not pass while on them. I understand that I will have more than ample opportunity to pass other runners in safer spots. In other words, I agree to cool my jets on the catwalks.

I also understand that there are only three water stops, so it’s important to carry a water bottle and any food that I want.

But even though I might get hurt or lost, I want to compete in this race. I therefore release and discharge all race officials, volunteers, sponsors and municipalities, and I also release the rocks, roots, bugs and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt.  I know that trail running is a high-risk activity.

By signing this form I certify that I am physically fit, responsible for my own actions, and have sufficiently trained for an event of this nature. In other words, I won’t sue any of the people or groups responsible for this race if I get hurt. And if I am under 18, then my parent or guardian is signing this release.

I agree to all of this even though it is written in plain English instead of stupid legalese.

Update: Something else to add, perhaps:

This trail has known knowns; there are things I know that I know.

I also know there are known unknowns; that is to say I know there are some things I do not know.

But there are also unknown unknowns – there are things I do not know that I do not  know.

And I accept the risks of all of that. Known and unknown.

Update #2 (3/31/12): At Legal Blog Watch, Bruce Carton made some additional suggestions.

 

March 23rd, 2012

Facebook Says “Privacy Expectations” On Its Site

Demand in personal injury suits for Facebook details are becoming more common, as I’ve posted about recently. One of the defense arguments is that there is no expectation of privacy for things posted on Facebook, regardless of the privacy settings, so the lawyers should be able to snoop.

Now, just so the record is clear, Facebook says otherwise. In a posting today on its own site, Chief Privacy Officer Erin Egan wrote that there is an expctation of privacy. The reason for her post was a recent story where employers were asking job applicants for their Facebook passwords, or to have one of their managers “friended,” so that the company could go rummaging around in the personal lives of the applicant. Sort of like asking to see someone’s email account, only much worse. She wrote that “This practice undermines the privacy expectations and the security of both the user and the user’s friends.”

Egan wrote with respect to the expectation of privacy and delving into the accounts:

This practice undermines the privacy expectations and the security of both the user and the user’s friends.

There is a clear parallel here to the litigation setting. Users write with an expectation of privacy, and friends of those users do also. So says Facebook. Should a court permit unlimited snooping, it isn’t just the litigant who has been probed by the lawyer, but all of the litigants friends.