New York Personal Injury Law Blog

Linkworthy

noreply@blogger.com (Eric Turkewitz) — Fri, 20 Nov 2009 15:50:00 +0000

New York gets a new blogger, doing his thing at Lou and The Law. Lou has been an occasional commenter here, and comes from the defense side of the aisle having worked as senior trial attorney for Liberty Mutual Insurance for almost 30 years. Worth reading for New York practitioners is Late Expert Disclosure Affidavits, and it is worth it because the statute governing expert affidavits doesn't actually have a time frame in it.

John Hochfelder rants against New York's appellate judges who knock down jury awards, but fail to explain why;

Mark Bennett has 16 Rules for Lawyers Who (Think They) Want to Market Online. Proceed with caution.

But Bennett missed this one: Don't use the names of your competitors as keywords for Google ads, as the Milwaukee personal injury firm of Cannon & Dunphy now learns as their name turns to mud;

And more from the attorney advertising department: Florida settles a case that now allows lawyers to use sites like Avvo and LinkedIn.

Carolyn Elefant on Google's new research tool, Google Scholar, and what it means for lawyers. I know what it means for me, as I discovered that I've been cited in a couple of law reviews, a litigation reporter, and a medical journal.

Mickey Mouse sued Donald Duck;

Is there a cause of action for Goth Discrimination?

What happens if you dress up like a suspect?

The family of a dead man -- who it turns out wasn't quite dead yet -- wants to sue the medical examiner;

As tort "reform" comes up in the debate over the health care bill -- along with screams of excess litigation and frivolous suits -- a reminder from Public Citizen that the actual data on tort trials is that they have decreased in number over the years;

Scott Greenfield shreds New York's new drunk-driver law;

The Personal Injury Law Round-Up is up at TortsProf; and

Blawg Review #238 is up at the Twin Cities Carry Journal, authored by Joel Rosenberg, prolific novelist, non lawyer and Jew With a Gun. His theme? Tolerance (and the lack thereof), with an introduction by one of the all time great political-humor songs.

My Guest Blog at Kevin, M.D.

noreply@blogger.com (Eric Turkewitz) — Wed, 18 Nov 2009 19:56:00 +0000

Last month, Kevin Pho, M.D., of Kevin, MD fame, had an op-ed in USA Today on potential solutions to medical malpractice litigation issues.

I've responded to that piece, and he has it as a guest blog today:

How a personal injury lawyer views the medical malpractice system

Dr. Pho runs the most widely followed doctor's blog in the medical blogosphere, and he appears frequently on op-ed pages.

Outsourcing Marketing = Outsourcing Ethics (5 Problems With Outsourcing Attorney Marketing)

noreply@blogger.com (Eric Turkewitz) — Mon, 16 Nov 2009 11:00:00 +0000

Five months back there was a Metro train crash in Washington DC, and I watched from a distance to see who/how/where/when the web would be used by lawyers to find victims. And one of the things we saw was that one of the gazillion attorney search firms that infect the web was soliciting clients. Given that these search firms are agents of the lawyers, that raised the problem of attorneys using the web to solicit.

Thus was born this little formula in June: outsourcing marketing = outsourcing ethics. This wasn't, by any means, the first time I'd appreciated the problem of outsourcing marketing, having written about the ethics of attorney search services two years ago:

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees.

The implications of being the test case are not pretty, and there after now five lawyers in Connecticut feeling the heat, as the state tries to decide if they violated local ethics laws by paying referral fees to the non-attorneys at a site called TotalBankruptcy.com. Some of the discussion goes to differentiating between a mere advertisement like a Google ad, and a "referral" from a search site after it takes in information from the consumer and then spits out a name.

For more on that, you can read Carolyn Elefant (in defense of the five), Scott Greenfield (calling the search service a cancer in the legal profession), Mark Bennett (suggesting disbarment, not saving), Josh King (the rules are unconstitutional), Larry Bodine (looking at the attorney who filed such complaints in 47 states) with both Bob Ambrogi and Colin Samuals doing extensive analysis of all the commentary.

It sucks to be a test case. It's one of those things lawyers should aspire to avoid.

It wasn't my intention to coin a phrase regarding this kind of stuff six months ago when I wrote about the train accident and the solicitation, but several others have now picked up that theme so it's worth expanding on.

When lawyers outsource their marketing to others -- be it a "search engine optimization" company, an attorney search company, or some hybrid -- they are hiring agents to do their advertising. Agents. We learned about that stuff in law school. The concept has a long and deep legal history. The web didn't make it go away.

And when it comes to the web, these are five things that those agents might be doing in your name that can get you in big trouble on the web, because attorney ethics are deeply intertwined now with marketing:

You are accused of sharing legal fees with non-lawyers (See Connecticut Five, above).

The agents solicit clients in violation of ethics rules (See Metro train crash incident);

They could spam blogs with your firm name;

They could scrape content from other blogs (or news sources) and post it as yours, thereby violating copyright laws in your name,

They could circumvent rules by engaging in ethics laundering.

It's interesting to note that simply going out and hiring a high-profile marketing company won't necessarily help you. For instance, Avvo is one of those find-a-lawyer sites, that also has reviews of attorneys. They've made a big splash and are as tech-savvy as anyone. Yet, if you go to their site, which now looks for attorneys to pay $49.95/month for "enhanced" visibility, you will find that they appear to violate one of New York's ethic's rules that went into effect in 2007.

Which rule does Avvo appear to break? The requirement that "attorney advertising" be placed on their home page, a failure that I noted hit many firms at the time it was implemented. Does an attorney search site need to have that mark on it? I would think so, as they are acting as the agents of the lawyers that hired them.

So what's the downside to all this? Well, the lawyers that hire others to do their marketing might find that company violating copyright law (content scraping) or ethics rules and subject them to litigation. Litigation can be long and expensive.

But it's actually a lot worse than that because litigation takes time and money and many don't want to do it unless they absolutely have to.

Blogging, however, takes very little time and very little money. And if you piss off just one blogger with ethically and legally dubious behavior, s/he might write about you. And put your names in the headlines. And that blogger might have some readers who are also bloggers....And the effect is felt as soon as Google happens to index those blogs; which is to say if they are active bloggers, immediate. When potential clients Google you, the results can be painful.

Litigation can be so passe.

These are some of the blogs that seem committed to outing the malfeasors, in hopes of cleaning up the lawyers part of the web so that our collective reputation doesn't sink further:

Simple Justice

Defending People

Popehat

Maryland Injury Lawyer Blog (re: Denver Motorcycle Lawyer Comment)

I'll add to this list as I become aware of other posts on the subject.

Linkworthy (tort "reform" insurance and ...boats?)

noreply@blogger.com (Eric Turkewitz) — Fri, 13 Nov 2009 12:35:00 +0000

New York's legislature overwhelmingly passed new laws that stop most insurers from jamming their feet into personal injury settlements seeking repayment of funds they used for medical care. (Plaintiffs were not entitled to receive these monies in verdicts, but that didn't stop insurers from trying to grab it anyway.) The bill awaits Gov. Paterson's signature. This is one bill that I've lobbied for in the past with the New York State Trial Lawyer's Association and hope to blog on in more depth in the future. For now, see Roy Mura's New York State Legislature Passes New Anti-Subrogation Law;

The number and amount of medical malpractice payments is down. Justinian Lane asks, What Medical Malpractice Crisis?

Of course, doctor's still want more immunity from law suits (Walter Olson @ Point of Law);

Perhaps reducing medical errors would be a better idea;

And maybe putting video cameras in the OR would be one way to do that, since this hospital seems to have problems with things like wrong site surgery;

You can find a ton of statistics on personal injury litigation at Ron Miller's blog. Do those stats conform to your notions of what is really happening? Like, for instance, who decides cases more favorably for plaintiffs? Judges or juries?

Blawg Review #237 is up at Christian Metcalfe's property law blog, with its theme of The Putney Debates. No, I won't explain then, he will.

Some other web carnivals to explore that often have legal links: Health Wonk Review; Grand Rounds from the world of medicine; and Cavalcade of Risk from the world of insurance.

Here are 50 great blogs by and for law professors. But precious few seem to be written by actual legal practitioners. Maybe the real world isn't all that important?

Another list of 50...free resources to create your own website;

Lastly, MarineTraffic.com is one really cool site (via Volokh). You can track tankers, cruise ships and the Staten Island Ferry.

Lawyer Advertising, Hockey & Iraq (And Budweiser)

noreply@blogger.com (Eric Turkewitz) — Tue, 10 Nov 2009 13:00:00 +0000

Traditional lawyer advertising may be branching out in very nontraditional ways. The Buffalo-based personal injury firm of Cellino & Barnes is known for its very extensive advertising campaign in western New York, with billboards and TV commercials galore (as well as ethics troubles, Matter of Cellino).

But in trying to make inroads downstate, they've invaded one of the local hockey arenas: The Nassau Coliseum. And they've done it by sponsoring a welcome home message for an Iraqi war veteran, not the type of advertising NY metro area residents are accustomed to, since we usually see subway ads, radio and TV.

My Nassau County Bureau Chief, a personal injury guy, reported to me last week to me that he saw this at a recent Islanders game:

Last night at the Islander game -- best personal injury lawyer advertising I've ever seen. Between the second and third period. Flashed on the screen is "Home from Iraq." White army style jagged edge lettering with a couple of army stripes on a military green background. Announcer announces back from Iraq is the American hero. The soldier, at the game, is flashed on the screen and waves to the crowd. The screen pans back to the Home from Iraq lettering and in smaller letters in the lower right hand corner is "Cellino & Barnes."

Was the advertisement effective? Well, this was the response:

This got a bigger round of applause than the Islanders on their way to their fourth straight win of the season. Those guys know what they're doing.

I have mixed thoughts on this. We start with the premise that the vast majority of ads for personal injury attorneys suck, and consist of "If you or someone you know has been injured..." types of blather. It's damaging to the profession and damaging to the clients, a fact that can only be appreciated when picking a jury and watching eyes roll when you tell them it's a personal injury case. So any ad that doesn't come within that wretched format is, by definition, a better ad. The bar for quality is set very low.

From there you move on to the issue of whether this is a cynical exploitation of our troops. But this type of tribute doesn't appear to be any different in concept from the Super Bowl ads run by Anheuser Busch in 2002 with Clydesdales walking across the Brooklyn Bridge and going down on one knee before the skyline of New York, or its 2005 ad of troops moving through the airport to the applause of bystanders.

On the whole, even with the cynicism in my mind regarding exploitation, I'd have to say that this is effective advertising. It doesn't say anything about the skills of the attorneys, of course, but nor do the Anheuser Busch ads tell you what Bud tastes like.

Twitter in the Courtroom

noreply@blogger.com (Eric Turkewitz) — Mon, 09 Nov 2009 17:26:00 +0000

Houston criminal defense attorney and blogger Mark Bennett is live-twittering while his protege picks a jury.

And Eugene Volokh reports on the federal rules prohibiting tweets from the courtroom.

While Twitter pretty much stinks as a means of carrying on conversations, it obviously can be used effectively to transmit small snippets of a story. Now the courts will have to wrestle with how to handle it.

Drug Wholesaler Found Peddling Mystery Medicine as Flue Vaccine (Pharmacy Liability)

noreply@blogger.com (Eric Turkewitz) — Mon, 09 Nov 2009 11:00:00 +0000

Cape Cod Hospital has reported that a drug wholesaler approached it trying to sell purported flu vaccine for 8x the normal price. But in addition to profiteering during a vaccine shortage came this notable news: The wholesaler refused to say where the drugs came from.

The article in yesterdays Cape Cod Times (for which I was interviewed and quoted) should sound the liability alarms throughout the pharmacy community. For if the wholesaler won't say where the drugs come from then they cannot be authenticated. A pharmacy that buys such product is therefore merely buying mystery medicine. Perhaps it came from a bona fide manufacturer, or perhaps the "drugs" originated in a Chinese factory that makes counterfeits, and the "medicine" has already changed hands a dozen or more times.

The sad truth is that we do a lousy job tracking pharmaceuticals and have a large gray market of secondary wholesalers. The pedigree of a drug -- its chain of ownership from the time of its manufacture -- is critical to determining the drug's authenticity. But if the pedigree is hidden, as with the case of the flu vaccine offered to Cape Cod Hospital, there is no real way to know what is within the packaging thereby opening the door wide to injury and death from the product.

So make no mistake about it: Any pharmacy that buys such mystery medicine will be responsible if the drug isn't the real deal. And I don't think it would be a situation of just being responsible for the injury or death that occurs, but that a good case could be made for punitive damages for conduct that I view as clearly reckless. The problem of counterfeits within the pharmaceutical chain has been widely documented, and all pharmacies are duty-bound to be on high alert for suspicious activity.

I was interviewed for the piece last week as a result of my prior representation of Tim Fagan, a Long Island teen who had been injected in 2002 with counterfeit Epogen after an emergency liver transplant. Representative Steve Israel introduced Tim Fagan's Law as a result, to toughen penalties against counterfeiters, and the FDA broader power to investigate, conduct recalls and spot check the market for counterfeits. (You can read more on it at the counterfeit drugs resource page at my web site, or by clicking the counterfeit drugs tag here.)

Cape Cod Hospital, to its considerable credit, refused to deal with the wholesaler. My only regret is that the company was not named so that others would know to be on the lookout for them.

Updated 11/12/09: See also Gray Market: I'm Not Dead Yet (Adam Fein @ Drug Channels)

New Spam Comment Policy for Law Firms (You Will Be Exposed)

noreply@blogger.com (Eric Turkewitz) — Thu, 05 Nov 2009 11:31:00 +0000

I'm getting tired of seeing spam in the comment area of my blog that comes from law firms and attorney search services. So if it comes in again I'm going to write a fresh post about them. I've done this a couple of times before but now I'm going to make a policy of it.

While I expect this nonsense from the drug hustlers (findrxonline seems to love spamming me) and the gold sites and others, I don't see that I can really do much about them except keep the comments moderated and simply reject them.

But law bloggers can do something about the law field spammers. Because unlike the other sites, these folks generally have very little Google juice and should actually care about their reputations. So if a few blogs decide to out the spammers, this could have a pretty big effect on the firms. When their names are Googled by potential clients, the potential clients will see that they are spammers. And it will no doubt cause them to stop.

If it is the crappy search engine optimization companies that they hired that are doing it on their behalf, without their knowledge, then the attorneys will still suffer. Lawyers are responsible for the acts of their agents.

I came up with this little rule about lawyer advertising when it comes to solicitation, but it applies equally well here:

Outsourcing marketing = outsourcing ethics

Perhaps, if enough bloggers do this then the lawyers that get busted for this kind of slimy stuff will fire the people responsible. And if enough SEO companies are fired by their clients for having done this in their name, then the tactic will be used less often. I'm not so naive as to think it will stop, but if it gets cut in half that would be a huge victory.

You've been warned.

Suit Against Above the Law Quickly Dismissed

noreply@blogger.com (Eric Turkewitz) — Wed, 04 Nov 2009 20:49:00 +0000

As quickly as it started with a bang, the lawsuit by Miami law professor Donald Jones against mega law blog Above the Law and its Editor in Chief David Lat), has been dropped.

The suit had been widely lampooned around the legal blogosphere, both for its lack of legal merit as well as the resulting public relations debacle.

In today's post, Lat showed more than a bit of class with this offer:

We have offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts. We have offered to keep the comments on that post closed or open, depending on his preference.

The case, in essence, ended pretty much the way I suggested yesterday. Jones bailed out of a poorly thought suit, and at the same time corrected the digital record that had last seen him being arrested on a prostitution solicitation charge. Those who Google him 5 years from now will no longer see an arrest of this type on Google's first page.

Instead they will see this lawsuit. And if accepts the ATL offer, they will likely see his explanation.

As I noted in the comments yesterday, it was wise for Prof. Jones to drop quickly, since once ATL answered the suit, they would need ATL's permission to drop it. And ATL might have decided not to allow it without some other type of concession from Jones. (A tactic I used ten years ago defending one of the first internet defamation cases.)

First Amendment guru Marc Randazza was defending Above the Law, and "hoping to open up this can of whup ass I have lying around." And if anyone has any thoughts about suing me for anything related to this blog, you should know I've got Randazza on my short list also.

Halloween Blawg Review Gets Reviewed

noreply@blogger.com (Eric Turkewitz) — Wed, 04 Nov 2009 17:29:00 +0000

I'm grateful to the many people who offered up their flattering comments and links regarding this week's Halloween themed Blawg Review, starring The Bogeyman. Some came in the comments area, some came in by Twitter and some on blogs:

If you missed @turkewitz's Halloween themed Blawg Review--go read it now. It is beyond clever (Rita Handrich @ The Jury Expert)

a super edition of Halloween Blawg Review (Kevin Underhill @ Lowering The Bar)

Eric Turkewitz never fails. But here he 'frightens' (Susan Cartier Liebel @ SoloPracticeUniversity)

As always with the Turk, its top shelf (Kevin O'Keefe at Real Lawyers Have Blogs)

Eric Turkewitz does a bang-up job on a spooky Blawg Review #236 over at his New York Personal Injury Law Blog. Enjoy. (Ken @ Popehat)

@turkewitz & a scary Blawg Review #236 -- murder, mayhem & protecting his kids (Doug Keene @ KeeneTrial)

Expectations were high; he exceeded them (Anne Reed @ Deliberations) Retweeted by: Erik Magraken; Scott Greenfield; Christopher Hill; CharonQC;

Eric Turkewitz writes a 'mean' Blawg Review ... and I mean that in the Cowboy Western 'mean an ornery' sense ... manages to cover a wide range of blogs in a highly readable way ... [more @ CharonQC]

Eric Turkewitz' Halloween-themed Blawg Review #236, hosted at his New York Personal Injury Law Blog, was a real treat ... Turkewitz is a perennial contender for Blawg Review of the Year honors. If this one doesn't put him at the top of voters' lists this year, there must be some trick. (Colin Samuels @ Infamy and Praise, who has won all four of the Blawg Review of the Year awards, so yes, there must be some trick)

As well as other links provided by: Above the Law; Point of Law; Blawg Review; montserratlj; Ron Coleman

If others come in, I'll tack them on.

Above the Law Sued By Law Prof (And How It Should All End)

noreply@blogger.com (Eric Turkewitz) — Tue, 03 Nov 2009 16:15:00 +0000

Above the Law has been sued by University of Miami law professor Donald Jones. Others are opining on the details of how the suit arose, but I'm here to tell you how I think it will (or should) end.

First, the back story: Prof. Jones was arrested on a misdemeanor charge of soliciting a prostitute. Above the Law picked up the story and, in its legal tabloid fashion, ran with it making him their "Lawyer of the Day" and publishing the police report. They did an update on the not guilty plea, and then followed up again with a post entitled "The Nutty Professor: A Commemorative Graphic." He has alleged the graphic is racist.

He sued ATL for $22M for portraying him in a false light, invading his privacy and violating the university's copyright on his faculty photo. (His claims are set forth in this Complaint.)

Others are opining on the merits of the suit and the First Amendment issues. The links to those posts are below. But I'm going to zoom right past all that and try to hit the crux of the case, why it was brought, and how I think it should be resolved without further litigation.

Prof. Jones, you see, has had the charges dismissed. Yet when you Google "University of Miami law professor Donald Jones," up pops those ATL posts on the first page, since ATL has some pretty impressive Google juice. And nowhere are there any posts from ATL about the charges being dismissed, because that post hadn't been written. So it's pretty safe to say that Prof. Jones is steamed. Big time.

Jones has had his Google reputation pretty seriously impaired. If repairing that reputation was his true motive, then by bringing suit, he has taken one step toward fixing it. Blogs all over are covering the story and now everyone knows the criminal case was tossed. That solves one problem.

But it creates another problem, that of a law professor starting a lawsuit that might have some pretty dubious merit (see below). And that isn't so hot if you're working the law professor circuit.

Working under the assumption that what Jones truly wants is his name back, and not $22 million, then the resolution of this dispute would seem to be pretty straightforward.

First, ATL publishes an "oops" (assuming they knew about the dismissal). Not for posting the initial stuff, all of which is likely protected under the First Amendment. Rather, I'm going to guess that someplace in the pit of his stomach, ATL founder and editor David Lat probably feels that if he is going to skewer a law prof that was arrested in this manner, that he probably ought to update his readers with news that the charges were dismissed. That doesn't go to any legal duty, but to human nature. It's just the right thing to do. So it may be that a mea culpa is in order for not updating the story in a more timely fashion.

(Of course, if they didn't know, that wouldn't apply.)

Prof. Jones, it should be noted, also wants the old posts taken down. I don't see ATL and Lat caving in to that demand. But, if they elect to write a new post updating the status of the criminal charges, then those old posts should probably have an updated link at the bottom referencing the new post. Bloggers run these types of updates all the time.

So I'm going out on a limb here to suggest that if ATL runs an update on the charges being dismissed with a mea culpa (if that part applies) on not telling its readers earlier, that would probably suffice. Since that is the type of update should probably be done anyway now, and there is no downside to ATL and Jones has his reputation updated.

On the flip side, if ATL makes a motion to dismiss (and I presume this is already being worked on) and Jones loses, he doesn't look so hot as a law prof. So Jones has a pretty good motive to accept those terms.

And if the two of them want to talk this over in a local tavern, I'll buy the beer.

Others opining on the subject:

Law Professor Sues Above the Law Blog, Alleging 'Viciously Racist Series of Rants' (National Law Journal)

Law Professor Sues "Above the Law" (Michael Krauss @ Point of Law)

Law Professor Sues "Above the Law" blog; Time to go back to complaint-drafting school (Copyrights & Campaigns)

Blog Sued: Above the law.com not above the law (Law and More)

Law Prof Sues Above the Law, Claims 'Racist Series of Rants' About His Arrest (ABA Journal)

Lawsuit of the Day: Jones v. Minkin (Above the Law)

Prof. Donald Jones' Lawsuit Against Above The Law (Eugene Volokh @ Volokh Conspiracy)

----------------
Update (11/4/09) Prof Jones has wisely dropped the lawsuit

Blawg Review #236 (The Bogeyman Cometh)

noreply@blogger.com (Eric Turkewitz) — Mon, 02 Nov 2009 11:00:00 +0000

(For centuries a wanderer has traveled about during Halloween week to see what lawyers are discussing on their blogs, and presented it in Blawg Review.)

The Bogeyman was pissed. And when The Bogeyman gets pissed, it's probably wise to listen.

"Law bloggers are trying to steal my thunder," he hissed, "It used to be that I had dibs on scaring the bejesus out of people. Now only 40% believe that my coterie of demons inhabits this earth. And I blame the lawyers. What are you guys trying to do to me?"

So as I stepped from my home to trick-or-treat with Little Man and Sweet Pea, he said "I'm coming along to show you what I mean." Oh, great.

We stopped at the house of Canadian law professor Sharon Sutherland who told us, while she tossed twizzlers into my kids' bags and blasted Thriller into the street, that there were more than 200 mentions of zombies in case law over the last 50 years, with most occurring in the last decade.

"See what I mean?" said The Bogeyman, "I'm supposed to control all the zombies. I mean, I can still invade a few brains to alert the world to real Zombies, and rattle a few people on the street, but too many lawyers are grabbing my turf."

"I mean, really, Zombie law firms! Isn't society overusing my minions?

He was on a roll while my kids were chattering happily, looking to score some Nerds. Maybe Scott Greenfield could get the kids sugar-zonked, while transporting me somewhere pleasant away from zombies. But Greenfield was spooked. He saw a prosecutor, once imbued with power, who was fired and then blogged about it. And now he'd vanished into the ethers, leaving behind his unpleasant ghost.

My kids were unimpressed with this tale, despite the Ghostbusters soundtrack playing in the background. They wanted gore. And so did The Bogeyman.

So we stopped at Kevin Underhill's, because he had a fish knifed into his door, and this, oddly enough, got my kids excited. Was this some Godfatherish death warning to Halloween tricksters, I wondered? And what happened to the fish killer asked the kids? My kids scored some gummy fish and scampered away.

Animals are fun, said Little Man, but can we find some live ones next time? Well, we could always find people humiliating their pets. "Fun!" said the son. "There oughta be a law," groused The Bogeyman as his eyes started to glow.

Next door was sweet, old Mother Jones; perhaps she could spook the kids? But Mother was too busy laughing while nibbling on a pop tort. It seems that the tort reformin', lawsuit hatin' US Chamber of Commerce had been punked when a group parodied them. And they not only threatened a suit of their own but were actually dumb enough to start one. My daughter looked up and asked, "Is this where the phrase 'good for thee but not for me' comes from?" Smart kid. Mother didn't spook, but she did spoil, with a fistful of vegan candy. My kids pretended not to notice. They're good that way.

Then they raced down the street to the little niche that Mark Herrmann and Jim Beck share. Not that there's anything wrong with that. Together they looked down at my happy little munchkins: "If you ever grow up to be drug company executives," they thundered in unison, "Stay out of West Virginia! For the learned intermediary doctrine won't apply!" I'd never seen my kids' eyes grow so wide. I don't know if it was fear or bewilderment, but they scampered away quickly, without even realizing the candy wrappers were completely filled with warning labels.

The little 'uns had no interest in discussions of drug company law, nor hypocritical faux "reformers," they wanted monsters, and not the monsters that inhabit law schools. So we went in search of something ...monstery? The Bogeyman was salivating. Finally.

While the kids were distracted chewing on Twizzlers, I told The Bogeyman about Monster Energy Drink and their chuckleheaded lawyering that managed to pull two bone-headed moves, trying to crush the free speech of a website that gave them a negative review, and trying to stop a small Vermont brewery from making Vermonster Beer.

See? Monsters! The Bogeyman still wasn't impressed -- and if you've ever tried to impress The Bogeyman you'll understand how difficult this task is -- so we went next door to IP guru Ron Coleman.

"The End Days are here," he said cryptically while Bad Moon Rising poured forth, and I saw The Bogeyman start to smile, making my stomach turn. Coleman explained to me, while tossing M&Ms at my kids, that "abusive DMCA takedown notices sent by copyright owners" will alter Google for the worse. "It's over." Dennis Kennedy, who snuck up behind us in the doorway with is own little troop, says he thinks that Google's best days are behind it as the next generation of search arrives. As we walked away, Mr. B said that my neighbors had awfully skewed perspectives on what End Days really means.

And then came a cheery call to us from Eoin O'Dell, temporarily in the US, who was researching the law of haunted houses and whether there was a duty to disclose a haunting in a house sale. And if you don't believe me, you can check his citation to a New York appellate court. But the only appeal for the children were the brightly colored sucking candies she brought with her from overseas.

The Bogeyman told me he was getting annoyed, but saw promise as we hit the walkway to Bruce Carton's place. Hanging from a tree was an effigy with all manner of injuries. He's wearing a Mets jersey, representing a season to forget. As we rang the doorbell, my son questioned me on a conundrum: Yankees or Phillies? As Mets fans we hate both. But when Carton gets an earful of our discussion, he can't wait to tell the story of the gorgeous tall buxom blonde -- in desperate need of two World Series tickets and what she will do to get them. Baseball, I tell my kids, is all about scoring, and I get them the hell out of the house.

But the talk of sex has caught the happy ear of next door neighbor Kashmir Hill, with gravestones sticking up from her front lawn. She pointed toward one of them, with the name of the 66 year-old assistant district of attorney caught with the 18 year-old stripper. Caught, she adds, in a graveyard. Douglas Keene, visiting with Hill, chipped in with more while the kids happily tangled themselves up in the spider webby stuff that Hill hung from the trees: Keene whispered that it was now possible to look at someone's Facebook account and determine their sexual orientation. The Bogeyman was going apoplectic. "Give me real villains," he snarled. His left ear started to smoke.

"And if you can't make me sick, at least try to amuse me." So I showed him Adrian Dayton's idea of a funny Halloween costume, focusing on social media. And Ann Althouse with her werewolf. "You humans can't even do humor right, though the CEO that dressed in six different Halloween costumes for his deposition was at least a good effort," said The Bogeyman. "As was the guy who came to see the Utah Attorney General dressed in full SWAT gear. But you're mostly pathetic. In some places, it could even be a felony to wear a Halloween mask. If you want costumes, look at this commercial one of my people did, though you should tell your more cowardly readers not to blast the volume if they're sneaking a peak at work."

When we walked up to the home of Jeralyn Merritt, she was outside talking about abuse with Ken from Popehat. Jeralyn pushed a deep dish of mini-chocolates toward my kids without breaking stride in the story she was telling of the six Gitmo Uighurs that had finally been freed and finally found a home, though it wasn't their own. And Ken was talking about abuse elsewhere: when a southwestern hotelier demanded that his Spanish-speaking employees cease and desist their native language because he feared they are secretly mocking him behind his back. Maybe he deserved to be mocked?

My kids strolled into the house, and The Bogeyman pulled me aside. You call this Halloween? Where are the real goods? With my kids now safely out of sight, I took him around the corner...

We found Howard Wasserman at the next house, with its glowing jack-o-laterns out front and Black Magic Woman filling the air. He was starting a Suicide Pool, watching as "Birther" lawyer and nut job (and dentist!) Orly Taitz continued down a path that has already had her sanctioned and will likely to cost her her license when done. "That's not real death," growled The Bogeyman.

OK, I told him, I'll give you a taste of the real deal.

Anne Reed greeted us ever so quietly where she sat on her front porch with a simple un-carved pumpkin. And she told us of the murder trial of a 4 year old girl, and the artwork created by a juror. She was sitting with Tom Kirkendall who told of the tragic car accident death of Houston trial lawyer John O'Quinn. Ashby Jones, who had just joined them, shared the story of real life monster Radovan Karadzic, the Serb accused of war crimes in Bosnia, whose war crimes trial was about to start at The Hague.

The four of them had an open laptop, and were looking at the site of Chicago Now. I think we found some of your friends living here, I whispered to The Bogeyman. The tatooed faces in these mug shots seem to scream out that evil was here.

The Bogeyman smiled and quieted down as he saw the fruits of some of his labors. He drifted off aways.

But Kevin Underhill had left his home to follow me, and now reappeared. He wanted to tell me, as if to taunt The Bogeyman back into my life, that he was most unimpressed. Those tats can be creatively covered up...just look what this guy is planning to do with his."

With The Bogeyman's blood thirst hopefully sated, despite Underhill's efforts, I scooped up my kids and headed to the home of John Hochfelder. He had a roaring fire in a pit on the front patio to break the late October chill, and Phantom of the Opera played quietly in the background. The parents drank wine and beer as the kids roasted marsh mellows into a goopy mess that were then decorated with candies in a gross-out contest. While Hochfelder served the booze, he also talked to us about the problem a certain Halloween witch had when she got drunk and was then hit by two cars, one of which was the responding police.

Gideon -- who had been talking to others about his beliefs on good and evil and the differences between those in the dock and those sitting in justice -- shifted gears to join the drunk driving discussion. He noted a little dissent where Chief Justice Roberts argued that anytime police receive an anonymous tip that someone is driving drunk they should be able to pull them over and conduct an investigatory stop.

But stories of drunks don't always have to end with death and destruction, and Jonathan Turley hoisted a tankard of suds to the cop that pulled a gun on a character in a haunted house. Hey, he said, no one got hurt. The Bogeyman, standing under a tree in the distance, started to glow again as his nostrils flared out almost to his ears.

Siouxsielaw sat with us by the fire -- having just moved into the neighborhood as the planet's first Gothic law blogger. Talk about your niche areas. But she wanted to return to Hochfelder's witch case. It seems that the Supreme Court of Massachusetts has allowed a Halloween costume to be admissible in a sex discrimination lawsuit. Siouxsie, by the way, also has a Halloween waiver and has a trick or tort posting and a motto that "Good Lawyers Wear Black?" Is this blogger a keeper? Me thinks so, I told the crowd.

As the night wore down and I scooped up the kids to leave, I collared Bill Childs and thanked him for doing a round-up of the personal injury discussions of the past week, because I surely didn't have the time to do so here. When he said that newcomers to this site really wouldn't get a true taste of my blog by reading my account of this evening, I reminded him that they could simply go to the "greatest hits" page that I have.

And when Blawg Review #237 hits Chritsian Metcalfe's property law blog next week, hopefully The Bogeyman will stay home.

Monster Energy Drink's Monstery Conduct - Just In Time For Halloween

noreply@blogger.com (Eric Turkewitz) — Fri, 30 Oct 2009 14:14:00 +0000

Monster Energy Drink's lawyers seem intent on living up to their product's monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish... I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well... it was odd. Think citrus + medicine. Yum! There wasn't a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn't quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don't think I'd want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the long short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don't even make beer.

But that didn't work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

Corporate monster picks on 'Vermonster':
Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about "frivolous" lawsuits and demanding new laws to prevent people from suing big corporations.

Some Kind of Monster: Vermonster vs. Monster:
All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art's Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

A Corporate Monster vs. "the Vermonster":
Chance are that you've seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: "Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.
MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:
I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

Why Monster's Trademark Claims Against Vermonster Stink
Hansen's argument, however, is weak for several reasons. First, why would anyone believe that a product named "VERmonster" -- a mark alluding to the state of Vermont -- is affiliated with Monster energy drinks? Second, the term "monster" isn't exactly distinct to Hansen's energy drink. In fact, we correlate the term "monster" with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it's doubtful that Hansen has a viable argument that Rock Art's "Vermonster" causes a "likelihood of confusion."

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you'd appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.))

Perhaps you think my comments made lead to some confusion in the marketplace as to your actual ingredients. But that's unlikely, since I don't presume that readers of this blog are total morons.

I know that I shouldn't have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

Blawg Review - Coming Attractions (I'm next week's host)

noreply@blogger.com (Eric Turkewitz) — Wed, 28 Oct 2009 10:00:00 +0000

Well, I'm hosting Blawg Review again, this coming Monday. So the floor is now open for suggestions on what to include in this weekly round-up of the legal blogosphere that travels from one blog to another on a week-to-week basis.

As with my 2007 marathon-themed Blawg Review (a long-running hit) and my 2008 Thanksgiving Blawg Review (which I loved writing but which some thought was a turkey), I will not be focusing on personal injury law. Because this is, after all, a round-up of posts from around the legal spectrum, not just my itty, bitty niche.

I'm still scratching my head for how to handle this particular review and what theme to use, so feel free to give me ideas. But you should note that the prior sentence was an outright lie and that I've already decided on a theme. It's my blog, and I'm allowed to do that kind of thing. But send me the tip anyway in case I'm afflicted with the sudden onset of Alzheimers.

To be considered for inclusion you can send an email to Post@BlawgReview.com or go to the Blawg Review site (and read the guidelines) and use the template. Or you can hope that I find your blog on my own as I stumble my way across the interwebs.

Blog post submissions (feel free to submit from any blog, including your own) should be:

1. Interesting to read; and
2. Free of self-promotion and self-aggrandizement. If your post has a suggestion to call you (If you too have driven a car into a pool...) then save yourself the cost of the email as well as the potential humiliation.

Unfortunately, I'm following on the heels of some great reads:

Blawg Review #235 at Counsel to Counsel, focused on posts that dealt with how the practice of law has changed with the Great Recession (and a subject I hit back in August with 10 Tips for Laid Off Lawyers);

Blawg Review #234 at Settle it Now, focusing on a "200 year present" and conflict resolution that is so chock full of links and information it scares the hell out of me as I think about my own;

Blawg Review #233 at Popehat with its tribute to Joshua Norton I, Emperor of the United States of America and Protector of Mexico. What? You've never heard of him? Neither had I, but I now consider myself at expert as the review wove in the lessons of our revered 19th century emperor and the modern lessons he brought;

Blawg Review #232 at Solo Practice University, with its tribute to -- what else? -- teaching;

Blawg Review #231 at Legally Unbound with its focus on Sin City. And lawyers have plenty of issues when it comes to sin;

Blawg Review #230 at Unsilent Partners, which comes at us from two long time blogs (Charon QC and Infamy or Praise) on two continents with its takes on war and peace; and

Blawg Review #229 at Blawgletter with its homage to John Harvard. Yes, that Harvard.

I am so dead. So very, very dead.

Medical Malpractice or General Negligence (Part 2)

noreply@blogger.com (Eric Turkewitz) — Mon, 26 Oct 2009 15:29:00 +0000

When I last touched the often imperceptible dividing line between medical malpractice and general negligence, it was because the difference in the statute of limitations was crucial to survival of the case. In that matter, there was trauma to the leg that resulted in death as the patent's leg slammed into a bed rail. With a statute of limitations of three years for general negligence, but two and one-half years for malpractice, it's easy to see how this can create litigation. (See: Medical Malpractice (So You Think You Know What It Is?)) A divided First Department decision ensued with Justice Catterson doing a lengthy analysis of the difference in Friedman v. New York Hospital-Cornell Medical Center.

The issue arose again last week, now in the Second Department, in Spiegel v. Goldfarb. This time the issue was the legal fee. You see, in New York, the legal fees are substantially lower in malpractice cases than in general liability, as a result of tort "reform" measures in the '80s. These "reforms" resulted in de facto immunity for many medical professionals, and made it difficult for many victims to found counsel. In addition to a shorter limitations period, the legal fees were cut. Rather than a 1/3 fee, the malpractice legal fee (discussed further in one of my first posts on this blog) is:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

In Spiegel v. Goldfarb, the underlying case was a about a failure to diagnose endocarditis, an infection of the heart valves. One of those that settled was a lab. These are the magic words that make up the standard, but they don't exactly give bright line definitions, which leads inevitably to litigation:

In distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached. A negligent act or omission by a health care provider that "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes [medical] malpractice." More specifically, an alleged negligent act constitutes medical malpractice when it can be characterized as a "crucial element of diagnosis and treatment" and "an integral part of the process of rendering medical treatment to [the plaintiff]."

The fault for this, of course, is not with the appellate division. Because the difference is often impossible to define. Rather, the solution is doing away with this artificial difference.

Malpractice cases are both more expensive and more difficult to handle. There is no compelling reason that the statute of limitations should be shorter or legal fees lower. If anything, the statute should be longer and the fees should be greater. And that is because many acts of malpractice are not even known at the time they occur (unlike an auto accident) and due to the complexity of the litigation.

There are some occasions, of course, when the reduced legal fee benefits the litigants. Those cases arise when they can actually find a lawyer to take the matter. (Though the 10% legal fee at the top end is often used by insurers in an attempt to drive a wedge between the plaintiffs and their counsel, by creating an incentive to take a smaller settlement because the risk-reward of going forward has become so unfavorable.) For many potential litigants, there is simply no lawyer to be found.

How do I know there is no lawyer to be found? Because I get these types of calls all the time. After I've declined the case because of the economics involved, many of these callers tell me that they've heard this before from several others that they've tried.

Frankly, it's time New York stopped crapping on the victims of malpractice -- and that is what those "reforms" are" -- and restore fairness to the law.

Move Over Pants Pearson, Here Comes the Hanes Underwear Lawsuit

noreply@blogger.com (Eric Turkewitz) — Fri, 23 Oct 2009 17:20:00 +0000

Another victory for the tort "reform" movement. Albert Freed wanted to sue Hanes because of a claim that his underwear gaped open and hurt his penis (and he didn't do anything about it). It's notable that he represented himself, since apparently no lawyer would have been moronic enough to touch it. (Not the plaintiff-->>)

This spectacularly stupid lawsuit (coming to us by way of Above the Law, where there will no doubt be abundant commentary that is NSFW) had its origins in a two week vacation to Hawaii, and new briefs that the plaintiff's wife bought for him. He testified that they gaped open at the fly, that this was apparent to him on the second day of the trip, that he got an abrasion, that he did nothing about it for two week, that he didn't even look at himself, and that some topical ointment cleared the problem up in a day or two when he got home. He brought suit for defectively manufactured briefs.

Previously I'd written about Roy "Pants" Pearson and his $54 million case against a dry cleaner for his lost trousers. OK, pretty much everyone in the world had written about that one. But Freed can now take his place beside Pearson in the pantheon of public humiliation over ill-considered lawsuits. Pearson probably still has the lead here based on the fact that he is an attorney, but still, Freed has given him a run for his money.

Why did Freed do this? I'm going to take a shot at this here: He won the trip as a reward for selling $20,000 of diet products. Yet he weighed 280-290 pounds. Perhaps he thought he could sell anything to anyone.

Why do tort "reformers" like these kinds of nutty suits? Because the corporate-run movement is based on anecdotes and not empirical evidence. If the U.S. Chamber of Commerce trots out a few losers like this, then they think they can make headway into closing the courthouse doors to legitimate suits. It is rare suits like this that make news, not the legitimate suits that are "ordinary" by comparison and that make up the bulk of the cases in the courthouse.

On a final note, you really have to read footnote 3 to the opinion, about the lawyer sitting in the gallery "minding his own business" who was suddenly called as an expert witness, since he was the only male available that was watching the proceedings that was not involved.This was a "prominent" local defense lawyer who was "conscripted" into the proceedings to talk about "penile discomfort." The court declined to name him, but acknowledged the lawyer was a "good sport" about it.
Opinion via ATL:/Freed-v-Hanes.pdf

Target Lawsuit Over Counterfeiting Claim Settles After $3.1M Verdict

noreply@blogger.com (Eric Turkewitz) — Thu, 22 Oct 2009 15:33:00 +0000

Last year I wrote about Rita Cantrell, who was falsely accused by Target of using a counterfeit $100 bill. The bill was authentic, but lacking some of the modern anti-counterfeiting devices simply because it was an older series.

The resulting suit led to a $100,00 compensatory damage verdict with $3,000,000 in punitive damages for the defamation. Some tort "reformers" smelled an opportunity and a small kerfuffle was set off in the legal blogosphere (see: Target Hit for $3M in Defamation Punitives (And Tort "Reformer" Sees Opportunity).

The suit, Cantrell v. Target, has now settled. While this is good for the parties involved, it's not so good for the opinionators who were wondering what the Court of Appeals would do with the verdict and the 1:30 compensatory:punitive damage ratio. A Magistrate Judge had previously refused to toss out or modify the damage award, leading to the appeal. (And the Supreme Court had let stand a 1:100 ratio earlier this year.)

According to this paper, the 4th U.S. Circuit Court of Appeals dismissed the appeal "upon such terms as have been agreed to by the parties." The parties didn't disclose the terms.

(h/t Stegmaier)

The case was discussed previously here:

$3 Million to the Target of Target (Scott Greenfield @ Simple Justice);

Federal Jury Awards $3 Million to Woman Wrongly Identified as Shoplifter and CounterfeiterJonathan Turley);

(Cantrell v. Target: $200 medical bill = $3.1 million verdict (Ted Frank @ Overlawyered)

"Cantrell v. Target" - Sorry, Overlawyered, as former loss-prevention officer, I find for plaintiff (Law and More)

Virginia Bar Exam Foul Up? (Can the Bar Examiners Be Beaten in Court?)

noreply@blogger.com (Eric Turkewitz) — Thu, 22 Oct 2009 10:30:00 +0000

Last week Virginia posted the results of its July 2009 bar exam. But are the results accurate? It seems that New York is not the only state that can foul up a test (as I know from my own experience as well as others), Virginia apparently fouled up the July 2008 exam.

The problem is simple:

There was a software glitch during the test regarding the essays that were typed on laptops; and
Virginia doesn't permit test-takers to see their essays.

What follows is an affidavit from Jon Bolls, who is chronicling his fight through the courts to see his essay answers after he and others were victims of a software problem. The affidavit below describes the problem. (And if you think bar examiners can't be beat, read this.)

According to Bolls, 43 states allow for some form of transparency. Virginia is not one of them. And over half now allow typing essays on laptops.

And the question for bar takers in the face of multiple technology problems comes down to this: Is pen and paper better than the keyboard? Proceed at your own risk...

-------------------------------------
I, Jonathan Bolls, "Declarant," am a resident of Springfield, County of Fairfax, Commonwealth of Virginia, and do hereby certify, swear, affirm, and declare, that I am competent to give the following declaration based upon my personal knowledge, unless otherwise stated, and that the following facts and things are true and correct to the best of my knowledge:

1. On July 29, 2008 I took the Virginia Bar Exam essay section on laptop.

2. During the afternoon session of the Essay/Short Answer portion, an announcement was made by microphone that there were approximately 24 students who had answers that were misplaced in the system from the morning session. These students did not know who they were and would find out how to correct the problem through special instructions enclosed in their afternoon test booklets. I am not one of the 24.

3. During the saving stage of both the morning and afternoon sessions, my Exam4 software, administered by Extegrity, halted and displayed a dialogue box wherein the program refused to proceed despite my following the instructions exactly. On each separate occasion, I had to call a technician over who handled my computer to circumnavigate the dialogue box. On at least one of these occurrences, I was instructed to reboot my computer and resubmit the essays. After both occurrences I was instructed to transfer the data from the laptop to the USB drive and hand it in.

4. Both of these instances were very similar but were handled by two different technicians. Neither of these technicians said that I had done anything wrong or offered any explanation as to what happened.

5. Both instances took place about midway through the crucial saving stage of the exam, an approximately ten-step process that was delivered orally by microphone. These approximately ten steps pertained entirely to saving the data to the personal laptop. The last remaining two or three steps were very straightforward and consisted of inserting the USB drive into the laptop and clicking on the icon that says "Save to USB Drive."

6. While applicants had many opportunities to take practice exams on their own time prior to the exam, the saving stage consisted only of a simple step of clicking on the icon that said save. The approximately ten steps given orally at the exam were entirely new to every applicant and were read as if they were written down for the proctor. On the other hand, setup instructions for a procedure we had already practiced on our own time, were written down for the applicants.

7. I was instructed to reboot my computer on at least one of these two instances. In the sequence of instructions, this took place prior to the step where the USB drive is to be inserted.

8. Both of the Exam4 glitches took place even before the USB drive was supposed to be inserted into the laptop.

9. After the oral instructions were read at the saving stage, a proctor then asked for a show of hands if there were any problems. There were quite a few hands that immediately went up in both sessions of the test, which visibly overwhelmed a full team of technicians on standby. My hand was raised for ten to fifteen minutes both times before someone could come to my aid.

10. I was so delayed during the afternoon session because of this that I was the last applicant to leave the room.

/s Jonathan Bolls

The Unseen Danger of Social Media (Twitter, Facebook, and More)

noreply@blogger.com (Eric Turkewitz) — Tue, 20 Oct 2009 10:30:00 +0000

The marketers and promoters love social media. They just don't talk about the hidden risk. They think every lawyer should be involved and that those not involved just don't get it.

All I ever seem to read is how great it is for connecting with others and drumming up business. But never a word about how it can kill business.

Yes, social media such as Twitter and Facebook can kill your business. And it's better to learn that lesson now than later. Lawyers can lose clients, or simply miss the opportunity to be retained.

I saw this today when I Googled myself. I did this after Scott Greenfield wrote a piece that created abundant commentary, centering on the fact that he types his posts up with exceptional speed, but never edits. Anyone that reads his Simple Justice can see this in many a post.

And I wondered, if a potential new client was given my name by another, and that person Googled me, what would they see?

Well, the first page of my results shows three separate social media sites: Twitter, Facebook and LinkedIn. They show up there despite the fact that I've not exactly been the biggest user of those sites over the last year. (My opinion that Twitter stinks remains unchanged, though I continue to drop links into it when I post something new here.)

So this is what the potential new client will see, even if you have an active presence on the web. Since I've written over 800 posts in this space since I started in November 2006, and received thousands of inbound links, I probably fit the definition of active presence. And yet, those three sites still manage to crowd out links from so many others.

So if social media sites will be on the first page of what your potential client sees, then those sites must be appealing to the client. And by appealing, I don't mean that you have to strut your legal stuff. Rather, you have to make sure you don't turn off the client.

And that's the danger; turning off the potential client by prattling away with all types of trite tidbits that only the most devoted of significant others could care about. Is this what you want your new clients to see? Because if that is what you are typing, that is what they will see.

And not only will they see it, but they will see when you wrote it. Ten posts written during business hours will make a client think two things:

Why is the lawyer writing about this stuff during work hours? I want a lawyer that is busy with a good book of business. (Crowded restaurants are usually crowded for a good reason; empty ones usually empty for a good reason.)
Will the lawyer be Twittering instead of working on my case?

The same risks, of course, may exist for blogs. And it is one that I often think about when writing. (For the record, I generally write at night or in early morning, but can edit the time stamp. I've composed many a post in my head while going for early morning runs on taking the train to/from the city.)

While many lawyers write with the hopes that future clients will read their stuff, I often fear it, particularly when going off topic. It is that fear of clients reading my words that makes me kill many a story before it gets published. It may be one too many that goes off-topic or it tackles a subject in a way that just turns people off. Personal attacks on certain people, for instance, can easily lead to backlash.

But at least I know that if I write something dumb, it will be quickly buried on the blog and (hopefully) forgotten in two months time. That won't happen as easily with the big social media companies though. Those links, which likely contain "fluffier" stuff than a law blog would handle, will be right there on page 1 of your results. And you may lose the biggest case of your career because the client went elsewhere. And you never even knew.

And one last thing to think about, since someone somewhere will holler, "But there are privacy options that allow me to shield the public from seeing my Facebook page!"

Sure there are, but what will you do when a current client asks to friend you Facebook? Insult them by saying no?

It's often been said that you should never write anything that you are afraid to see on the front page of the local paper. The story of Flea made that clear.

But let's take that one step further: Never write anything that you don't want your clients to see. Because you may not get to keep them as clients.

Chamber of Commerce Credits Apple's Success to Trial Lawyers

noreply@blogger.com (Eric Turkewitz) — Mon, 19 Oct 2009 17:31:00 +0000

I love the U.S. Chamber of Commerce. It's utterly over-the-top arguments have lead it to the conclusion that the success of Apple is due to trial lawyers.

Apple, you see, became the latest company to tell the Chamber of Commerce to go crap in a hat when it came to its stance on climate change. Apple quit. But according to the chamber, they weren't told by Apple to take that proverbial long walk of the short pier because its position on global warming was out of touch with science and the opinions of the vast majority of people. No, it couldn't be that.

According to the chamber, Apple must have quit the organization because of the trial lawyers. I kid you not.

In Friday's Washington Post the chamber said its critics were organized by "our normal adversaries-- trial lawyers, activist unions [and] environmental extremists."

Chamber COO David Chavern went on to write in his letter, that "[I]nterest groups are looking for public leverage to force us to do things against the best interests of the business community..."

You see, according to the chamber, Apple, one of the most successful consumer businesses on the planet, doesn't really know what is in its best interests. Apple, according to the chamber, is being pressured by trial lawyers. We're responsible for Apple being what it is today.

It's nice to see such a feather in the cap of the trial lawyers. Usually we must be satisfied knowing only that there are safer playgrounds, safer cars, safer drugs, and safer consumer items of all kinds as a result of lawyers holding companies accountable for what they make.

But now we get to add in Apple's success. Cool. I can live with that.

h/t Legal Reader
--------------------------------------
See also:

The Chamber and Climate Change Debacle: Ignoring the First Rule of Holes (NRDC):
...it is clear that the US Chamber is worried about the impact of the controversy over their climate position, but it isn't worried enough to have an honest discussion with its members as to what's going on. Instead, the Chamber is firing wildly at its traditional scapegoats - lawyers, unions and environmentalists - and blaming the troubles on them. But what the Chamber is burying here is that it has created this mess for itself, and the companies that have quit the chamber and criticized it have done so of their own accord. (more)

Chamber: They Just Hate Us Because We're Awesome (Mother Jones):
The US Chamber of Commerce has had a very rough week. Mother Jones exposed their inflated membership numbers, forcing the Chamber to shrink its tally by 90 percent. Following a series of high-profile departures by members who opposed the leadership's position on climate change, a group of liberal NGOs has organized a "Stop the Chambe"" campaign, and the San Francisco Chamber is publicly divorcing them. The Chamber is so beleagured that it is now painting itself as the victim of—wait for it—a "corporate campaign." (more)

Chamber fires back at climate critics (Politico):
The U.S. Chamber of Commerce fired back at critics on Thursday, after a series of defections by member companies angry over the business lobby's opposition to climate change legislation."The only regrets we have is that we maybe have not always used the right language," Chamber CEO Tom Donohue told reporters. "We don't have regrets about our position, and we don’t intend to change it." (more)

Counterfeit Drugs and Their Deadly Consequences

noreply@blogger.com (Eric Turkewitz) — Wed, 14 Oct 2009 14:41:00 +0000

It's been awhile since I've written on this subject, but the appearance this month in Smithsonian Magazine of a long article on the subject pulls the topic out of hibernation. That counterfeit drugs make up a stunning 50% of the drugs in some places in the world boggles the mind, and speaks to the dangers in the US of infiltration of our markets.

It also speaks to the miserable state of our law with respect to investigating and tracking fakes. It was over 20 years ago that Congress passed the Prescription Drug Marketing Act that was designed, in large part, to track the pedigree of our nation's pharmaceuticals so that we could tell where they came from, much the way blood products or airplane parts are tracked. It still has not been fully implemented.

And it was six years ago that a Florida grand jury concluded that "an alarming percentage of the drugs flowing through the wholesale market have been illegally acquired. That is, they have been stolen from shipments, pharmacies, clinics, and hospitals; purchased on the black market from recipients and health care professionals who are defrauding insurance companies or Medicaid with bogus prescriptions; or illegally imported from overseas."

And now this week Time has an article on How to Stop the Counterfeit Drug Trade.

My interest in the subject dates back to 2002, when I started representing Tim Fagan, who had been injected with counterfeit Epogen after an emergency liver transplant at the age of 16. I put up a counterfeit drug resource page at my website to give some of the background on the problem, and continue to write about it in this blog. That lawsuit contributed in large part to significant changes in how drugs are distributed in the country, and it shined a spotlight on a large gray market of secondary wholesalers that pedaled prescription drugs in this country with little oversight. As a result of the suit, and the press, much of that gray market has been eviscerated.

Unmentioned in the Smithsonian and Time articles, however, is pending legislation by Representative Steve Israel named after my client (and his constituent): Tim Fagan's Law. Passage of the law would be a good way to bring safe prescription drugs to our pharmacies.

With such spectacular quantities of counterfeits being sold throughout the world, there is little doubt that they will be sold on our shores. (Tim's fakes were home-grown, not imported.) And since some fakes are nearly impossible to detect by the average consumer, and even by many pharmacists, sophisticated law enforcement is a key element in protecting the nation.

As Willy Sutton may have said about robbing banks, he did it because that was where the money is. Given the vast profits to be made in counterfeit drugs, we must assume that criminals will pry open any window they can to get into the pharmaceutical distribution system. And we need vastly better law enforcement and FDA oversight to combat those dangers.

I'm A Super Lawyer! (Now What?)

noreply@blogger.com (Eric Turkewitz) — Fri, 09 Oct 2009 02:31:00 +0000

A relative told me something that I already knew: That I had been selected as a personal injury Super Lawyer. They knew because it had been published by the New York Times.

Yeah, well, kinda sorta. But not really. Super Lawyers is a supplement to the magazine; an advertising supplement. You don't have to pay to be listed, you only pay if you want your name displayed prominently in a large box or page with a story about you that looks like news. Sort of an advertisement within the advertisement. I think the marketers call it an advertorial. I declined their offer to pony up big bucks for such an honor many months ago.

But now comes the other issue: What, exactly, do I do with this "honor"? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? A mockery of a pseudo-faux award? A mockery of a sham of....OK, you get the idea.

I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. So if we are vetted, then perhaps this really is something to be proud of?

But what kind of vetting actually takes place? Super Lawyers claims on their website that:

Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. They have a full page of words on their website to describe their process, but it doesn't seem very revealing to me. They have a "research department" that assigns "point values" to different criteria.

I must confess that this all seems pretty meaningless to me. If you want to know if I'm good at what I do, it seems you would have to read a brief I've written, read a deposition I've taken or perhaps watched a trial. Even if a lawyer comes in second at trial, an observer might still be able to gauge how comfortable s/he is inside the well of the courtroom. Everything else is, shall we say, hearsay. Inadmissible.

But that little logo sure looks nice, doesn't it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) And I can't just say that Super Lawyers is making stuff up, because I could be very wrong about that. I just don't really know. And they don't really reveal the way they do their analysis, despite all the words they use to talk around the issue.

So what will I do? I don't really know yet, though putting it on my website (the website that I hate) and then linking that "honor" back to this post showing my complete ambivalence might be one option. At least it would educate the legal consumer a bit about those that put such things on their sites or on their office walls.

And I am also left with the impression that this is a notch above being in the Million Dollar Advocates Forum. Of course, that didn't really set a very high bar.

See also:

New Jersey Law Journal report potentially misleading (Super Lawyer Blog)

N.J. High Court Weighs Proposed Easing of 'Super Lawyer' Ban (NJLJ)

Superlawyers with Cheese, Please (Simple Justice, 9/23/07)

NJ Stupidly Outlaws "Super Lawyers" and "Best Lawyers" (Larry Bodine, 7/23/06)

Engineering Experts, How To Find Them and What To Ask

noreply@blogger.com (Eric Turkewitz) — Thu, 08 Oct 2009 03:24:00 +0000

Another guest blog today, this from Patrick Carrajat, an elevator expert in New York that has testified for both plaintiffs and defendants. He writes today from the point of the engineering expert and the needs of the plaintiff's counsel, but his points and check-lists can be modified for other purposes.
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FINDING THE RIGHT EXPERT

There are several ways to locate the technical expert you need. Referral agencies abound, both on-line and traditional and either can serve the purpose of finding a suitable expert. The inherent pitfall with both type agencies is that they often are mere repositories for resumes and have little, if any knowledge of the proficiency of the expert being recommended. A quick internet search will turn up web pages for experts in virtually any field, but again you are simply given the information the expert chooses to post. In both of the above scenarios the onus will be upon you to investigate the background of the expert further, talking to their clients and interviewing the expert to see if they are right for your case. The best way to locate a suitable expert is either the old fashioned way, call a fellow attorney in a firm known for its personal injury practice and get a name or the new fashioned way, post your need to the NYLIST (New York State Trial Lawyers Association) or other such plaintiff oriented forums and see who is most recommended. Now that you located several names by any of the above methods how do you decide if the expert is right for you and your particular case?

INTERVIEWING THE EXPERT

In our hectic times it is virtually impossible to meet with each expert candidate personally so the telephone interview is the prevailing means of selecting your expert. The initial contact with the expert should begin with your disclosing the name and nature of the case since many popular experts may have already been retained by adverse counsel. Presuming that the expert has not been retained by another party and is willing to be retained by you these are questions that you should ask prior to deciding on your choice of expert.

1. How long has the expert been in practice?
2. How often has the expert been retained?
3. How often has the expert testified?
4. What percentage of testimony has been for the plaintiff?
5. What courts has the expert been qualified in?
6. Has the expert ever be dis-qualified as an expert?
7. Does the expert write their own affidavits and 3101(d)(1) or 26B filings?
8. Does the expert have copies of prior trial testimony?
9. Does the expert maintain files on opposing experts?
10. Does the expert maintain files of EBT (deposition) testimony by them?
11. Does the expert maintain files of EBT's by others?
12. Does the expert maintain files of current appellate decisions pertinent to their field of expertise?
13. Will the expert assist you in preparing discovery items?
14. Will the expert write deposition questions for you?
15. Will the expert write trial questions for himself?
16. Has the expert actually worked on the type of equipment involved in your litigation?
17. Has the expert served on any code committee relating to the subject equipment?
18. Has the expert served on any industry groups?
19. Has the expert participated in seminars in their industry?
20. Has the expert conducted or been a panel member on such seminars?
21. Has the expert published any articles or books on the subject?
22. What professional associations does the expert belong to?
23. Does the expert maintain a library of technical articles and Code books?
24. If the field requires licensing does the expert have a current license?
25. Does the expert have a current CV to fax or e-mail to you?
26. What are the names of the last three attorneys worked for where the case was lost?
27. Does the expert have a client list of references to fax or e-mail to you?

Presuming that the above questions have been answered to your satisfaction proceed to checking selected references paying particular attention to the three cases that were lost. Once you are satisfied that you have found a suitable expert move to retain them at once.

DEALING WITH THE EXPERT

Most experts, like attorneys place a high value on their time and you will be best served by giving all information available to your expert as soon as possible. In virtually all cases involving a malfunctioning piece of equipment an on-site inspection will be required, arrange it as soon as practical after retention. The main purpose of this on-ste inspection is to allow the expert to precisely identify the equipment involved and protect the expert on cross. Any thinking defense attorney will, on cross ask when the on-site inspection was done. If the answer is never the next question will be, "So you are giving opinions today but you were not even interested enough to look at this piece of equipment?"

Give the expert ample time to prepare deposition questions and ask the questions even if you do not understand the reason for them being asked. Have the expert interview the plaintiff in person or over the phone, let the expert hear the plaintiffs story directly, minor details that mean little to a layman can be significant to the expert.

Every expert after jury selection should have an extensive meeting with the trial attorney and it should benefit both the lawyer and expert. The lawyer will have a good picture of the jury and can assist the expert in reaching the jury in a positive sense. Request that the expert dress for the meeting as they will dress at Court, make comments if appropriate.

YOUR OBLIGATIONS TO THE EXPERT

Once you have retained your expert you have certain obligations:

1. Promptly send your signed retainer and check (if requested) to the expert. Many experts are in high demand and will be contacted by multiple parties in a major case. The mere fact that you spoke to the expert does not, in most cases, mean that they cannot accept a retainer from another party if you have not formally retained them. Fax or e-mail your intentions and advise the expert when a signed retainer will be mailed.

2. Keep your expert in the loop. No expert wants to receive records or copies of depositions a week before trial (and yes it happens). No expert wants to be asked at trial if they have reviewed a deposition only to realize the deposition was never given to them (and yes it happens). No expert appreciates a call asking if they can do an on-site tomorrow.

3. Be sure you know what the expert wants you to ask for in discovery. Any qualified expert can give you a list of items they feel they need to properly address the issues in your case.

4. Don't "paper" the expert. No expert, aside from those testifying to physical injury wants 200 pages of medical records. Most experts do want the original aided report from the police or emergency service responders and possibly the ER reports to see if the injury is consistent with the reported malfunction.

5. Know what your retainer agreement requires of you financially and pay your expert on a timely basis, the only thing they sell is time and their expertise. You will find it difficult to have a relationship with an expert who has been unpaid or waited more than 30-60 days for payment.

6. Don't attempt to have your expert "shade" their opinion, most will not do it and those that do are violating the ethics of the profession. Your expert will put their opinions in the most favorable light for your client consistent with the admissible evidence reviewed.

Defensive Medicine or Medical Greed (Dr. Turkewitz Responds)

noreply@blogger.com (Eric Turkewitz) — Wed, 30 Sep 2009 01:13:00 +0000

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn't air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
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By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary "tests and prescriptions" before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to "tests and prescriptions" omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient's "baseline." The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the "tests and prescriptions" that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true "costs" of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

North Shore Hospital Sued After Brain Surgery Patient Left on Table

noreply@blogger.com (Eric Turkewitz) — Fri, 25 Sep 2009 14:58:00 +0000

Back in May I wrote about two top neurosurgeons that were suspended for leaving a brain surgery patient on the operating room table at North Shore University Hospital. That woman has now sued them.

The patient, Jennifer Ronca of Pennsylvania, had undergone the first of a two-part brain surgery. But the surgeon for the second part, Paolo Bolognese, failed to appear and operate. He remains on staff at the hospital.

A second neurosurgeon, Dr. Thomas Milhorat, refused to step in when called. He has now retired.

The first thought on reading the story is: So what were the damages? And defense counsel Tony Sola of Martin, Clearwater & Bell, one of the talented "regulars" of the malpractice defense bar here in New York, echoed that very thought when asked for a quote, saying that Ms. Ronca was "not injured" as her surgery was completed several weeks later.

But Ms. Ronca was, of course, injured. At the barest minimum she had an additional surgery and had her recovery delayed by those several weeks, in addition to any deficits that might have occurred due to the delay. There seems to be little doubt that trying to demonstrate (and defend against) such deficits will be the crux of the damages portion of the case.

On Ms. Ronca's side is Mark Bodner, one of the regular plaintiff's malpractice attorneys. Both sides are well represented here.

And it's well worth noting that the damages sought are "unspecified" in accordance with New York law, notwithstanding that some lawyers break that rule. And even when pressed by the reporter for a number, because reporters love putting those numbers in headlines, he declined.

There is a demand for punitive damages also, and as both Bodner and Sola realize, such a claim has a very high hurdle indeed. I'm not sure if any punitive damage award has ever been upheld against a doctor in New York. While the conduct here might look particularly egregious, if there was a scheduling or communications snafu that caused it, such damages are unlikely to be awarded.

(hat tip to Scott Greenfield for picking this up out of Newsday)