lawsuits

Ethics Musings I : The Dark Side Of Personal Injury Lawyers

/ Jack Marshall / 28 Comments

better-call-saul

I’ve been reflecting, since yesterday, on the bizarrely angry and intellectually dishonest protests registered here and on his own blog by trial lawyer Eric Turkewitz regarding the aunt who sued her 12-year-old nephew. His arguments, if you can call them that, consisted of constantly shifting the issue from ethics (what the aunt should have done) to law (what the aunt had a legal right to do), denying the core problem (Why would anyone assume that a child is harmed by dragging him into court, subjecting him to examination in front of strangers, and focusing on him as a wrongdoer and responsible for his aunt’s alleges misery, all mandated by the aunt who supposedly loves him?), and appealing to a dizzying list of rationalization and fallacies. He then made his exit by accusing me, a lawyer, of “knowing nothing about the law” (I made no assertions about the law at all—this is not a legal issue) making everyone stupid, and being a narcissist, a full-bore ad hominem attack ending in an ominous “May God have mercy on your soul!” Why would he act like that?

The reason, I realize, is that my posts challenge the basic belief system of the plaintiff’s bar, which I know very, very well having worked in an executive position and run such diverse programs as the research data base, conventions, sections, litigation groups and more over seven years with the Association of Trial Lawyers of America. Now ATLA is called “The American Association for Justice,” a name chosen purposefully to disguise the fact that it is a plaintiff’s lawyer’s lobby by keeping “trial lawyers” out of the name because it had a negative response in marketing studies. (I kid you not.)

Trial lawyers have done a lot of good and important things and continue to, but the profession is corrupting. There is a lot of money to be made, and ATLA–excuse me, AAJ, is devoted to eliminating any limits on their members’ ability to sue anyone for any amount, no matter what harm it does to the economy, the nation, the cost of health care, the bonds of trust in society, personal liberty, or public respect for the civil justice system. Individually, members of AAJ are among the top donors to the Democratic Party, in part to make sure that they can block all Republican efforts to limit jury awards, spurious lawsuits, and damages that have to be paid by negligent corporations when they destroy lives through shoddy products, conspiracies, and other conduct. The other reason is that Democrats support the redistribution of wealth, and trial lawyers profit by it.

In the matter of keeping corporations accountable, the AAJ is, as they will constantly remind us, on the side of the angels. But like other interest groups (the NRA, the ACLU, NOW, and may more) that stake out  extreme, self-serving and unethical positions in defense of legitimate rights, trial lawyers often feel that they must take the position that every injury and misfortune deserves compensation by someone else. Eventually, they believe it. Justice is taken out of the equation for all but the plaintiffs bar’s clients. Justice means that someone else is always at fault. Continue reading →

My Reply To Eric Turkewitz’s Criticism Regarding “The Worst Aunt Ever”

/ Jack Marshall / 71 Comments
This guy would have given The Bad Aunt the right advice...

This guy would have given The Bad Aunt the right advice…

Eric Turkewitz is a New York trial attorney, by all accounts a terrific lawyer, by the evidence of his writing an ethical and astute one, in our brief encounters a very nice guy, and the proprietor of “The New York Personal Injury Law Blog.” In a recent post, he defends the decision of Jennifer Connell to sue her young nephew for a four-year old injury she received when he hugged her too enthusiastically at her birthday party. He notes, correctly, that the decision to sue was based on the client accepting a “bad call” by her lawyer. He also includes a lot of information not mentioned in the early posts on the matter, including mine. Still, he defends Connell. He also specifically criticizes my post. Eric writes,

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

“What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.”

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report. This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued.

Yes, I “actually teach ethics,” and I could, in fact, teach Eric some things that he would find useful and enlightening. I’m not going to get in a pissing match with him, in part because, as I learned from another tiff four years ago (in which I was wrong, and duly apologized), he has some very, very nasty pals, and I don’t want to throw blood in the water. This is, however, an excellent example of how lawyers often end up seeing the world, and in fact I may use his post, unattributed, in seminars to show where legal ethics and ethics diverge. It is wise for lawyers to be atuned to both.

Here was the response I made to Eric on his blog: Continue reading →

The Worst Aunt Ever

/ Jack Marshall / 83 Comments
(L) Auntie Jenn in her "Loving Aunt" disguise, and (R), my best guess at what she looks like without it...

(L) Auntie Jenn in her “Loving Aunt” disguise, and (R), my best guess at what she looks like without it…

[ WARNING: This story may make your head explode. I’m not sure why mine didn’t; it may because there’s nothing left to blow.]

Jennifer Connell, a 54-year-old human resources manager in Manhattan, is suing her 12-year old nephew, Sean Tarala, in Connecticut for $127,000 in damages for an accident that occurred at his 8th birthday party.

On March 18, 2011, Connell arrived at the Tarala home  to attend Sean’s birthday party. She was greeted with the sight of the excited kid riding his major gift, a red bicycle, around the the yard.  When he spotted Aunt Jennifer, he jumped off his new bike and ran toward her, shouting, “Auntie Jen! Auntie Jen!”

Connell testified that “all of a sudden he was there in the air, I had to catch him and we tumbled onto the ground. I remember him shouting, ‘Auntie Jen I love you,’ and there he was flying at me.” Connell said she her wrist was hurt, but she didn’t mention it because “It was his birthday party and I didn’t want to upset him.” Now, however, though he has always been “very loving, sensitive,” toward her, Connell believes he should be held accountable for her injury. Continue reading →

Law vs. Ethics: A Snatched Bar Mitzvah Gift, A Leaky AG, An Embarrassing Scoreboard, and”OINK”

/ Jack Marshall / 19 Comments

Oink

I try to keep my legal ethics seminars up-to-the-minute, so while preparing for yesterday’s session with the Appellate Section of the Indiana Bar, I came across a bunch of entertaining stories in which the ethics were a lot clearer than the law, or vice-versa. All of them could and perhaps should sustain separate posts; indeed, I could probably devote the blog entirely to such cases.

Here are my four favorites from the past week’s legal news, involving a mother-son lawsuit, a brazenly unethical attorney general, a college scoreboard named after a crook, and police officer’s sense of humor: Continue reading →

Now THIS Is Hypocrisy: Steven Soderbergh’s Copyright Exemption

/ Jack Marshall / 9 Comments

Raiders_B and W

Few ethical concepts are as misidentified as hypocrisy, which is the opposite of integrity. The judge who secretly engages in crimes by night that he harshly sentences poor defendants for committing when he wears his black robe by day is a hypocrite; the parent who punishes his child for conduct she defiantly engaged in when she was the same age is not. The anti-hate speech zealot who uses what she would call hate speech in attacking others is a hypocrite; the closeted gay Baptist who opposes same-sex marriage is not. There is no danger of confusion where director Stephen Soderbergh’s copyright militancy is concerned, however. He’s a perfect hypocrite, one who distinguishes  right and wrong this way: if anyone other than  Soderbergh does it, it’s wrong.

Soderbergh is an outspoken copyright infringement hun who has testified  before Congress on behalf of the Director’s Guild of America, calling for tough legal penalties against online copyright infringers. He was also the lead plaintiff in the 2006 case of Soderbergh et al v. Clean Flicks of Colorado et al., seeking to shut down a company called Clean Flicks  that distributed versions of previously-released films edited by them to be more “family friendly.”

Soderbergh suit was successful, with the court ruling that the edited versions prepared by Clean Flicks violated his rights under sec 106(2) of the Copyright Act  by creating derivative versions of the films – defined as “works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted”—and held that that Clean Flicks was responsible for “irreparable injury to the creative artistic expression in the copyrighted movies.”

But what’s this? Now Soderbergh is posting his own specially-edited versions of the classics “Psycho,” “Raiders of the Lost Ark,” and “2001: A Space Odyssey” on his own website. Want to see how good Raiders looks as a black-and-white film for example? Soderbergh’s color-free edit will show you. And how is editing the color out of the Lucas-Spielberg film ethically and legally distinct from editing out the naughty words and images from Soderbergh’s “Sex, Lies, and Videotape?”

I have no idea. Ask Soderbergh, whose answer, I suspect, will be “because I did it, not someone else.”

Hypocrisy.

______________________

Pointer: Volokh

Ethics Quiz: Is “Hidden City” Flying Unethical?

/ Jack Marshall / 37 Comments

Hidden City

Last month, United and Orbitz filed a lawsuit against a website called Skiplagged, which among other things helps consumers plan trips with cheaper airfare using a tactic called “Hidden City.” Hidden City travel is when a traveler wants to go to a city that costs more to fly to directly than another city that uses the real destination as a connection. Thus, if you want to go to Charlotte, you book a cheaper flight that involves a change of planes in Charlotte, and just take your carry-on luggage and skip the last leg of the trip. Anyone can search and book Hidden City flights, but it is a chore.  Skiplagged makes it relatively easy.

Airlines punish frequent flyer passengers who use the method. They argue that gaming the system this way makes it difficult to track passengers and unfairly takes advantage of the hub-and-spoke system, where airlines fly to hub cities and add connecting flights from there. The lawsuit is trying to shut down Skiplagged,  alleging “unfair competition” that promotes “strictly prohibited” travel. The suit seeks $75,000 in damages, and 22-year-old site creator Aktarer Zaman is fighting it, seeking funds, so far successfully, on GoFundMe, where he originally sought  $20,000 to afford his legal bills and is closing in on twice that amount. My guess? If this gets to a jury, Zaman will win. The Streisand Effect is also in play: the airlines risk making everyone aware of this cost-saving maneuver, while getting bad publicity as well.

Zaman argues that the Hidden City ploy is legal. You know my answer to that ( Rationalization #4. Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical”)and it’s also the first  Ethics Alarms Ethics Quiz of 2015:

Is the Hidden City tactic ethical?

Bloomberg refers to Hidden City flying as a “scam” and “cheating.” Is that a fair description? The ticket purchaser has paid for the whole flight, so why is it cheating to get off half-way through it?

I think it’s a close call, but I have to side with the airlines.  The closest analogy that I can come up with is card-counting in blackjack: it’s not cheating, and it’s not illegal, but the casinos have a right to prohibit it in their own interests. The rationalization (Rationalization # 18. Hamm’s Excuse: “It wasn’t my fault.”) is that the existence of a loophole is the airline’s problem to fix, and if they can’t fix it, taking advantage of it is fair. But it isn’t fair, any more than it is fair for travelers to avoid baggage fees by taking large bags through security to the gate, and then passing them off, at no cost, on the way into the plane. It’s dishonest, and the Hidden City trick is also dishonest. You pay the airline to take you to a specific destination. How they get you there is irrelevant: a ticket to Minneapolis is a ticket to Minneapolis, and if you use it to get to Chicago instead because the airline charges more to go there, you engaged in bad faith negotiation.  The ploy is also unethical because if it becomes widespread, airlines will have to raise fares, and all air travelers will suffer.

One of Zaman’s arguments also positions him on my bad side: he points out that his site merely shows the airfares, and that the passengers book the tickets. Right. That was the same argument made by radical pro-life websites that posted the names and addresses of abortion practitioners so fanatics could track them down and kill them. Pro-anoerexia websites don’t starve young women, they just encourage them to starve themselves. If Hidden City flying is cheating, he’s facilitating it.

Reluctantly, I have to agree that it’s unethical.

______________________________

Facts: Slate, Bloomberg
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts, and seek written permission when appropriate. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, credit or permission, please contact me, Jack Marshall, at jamproethics@verizon.net.

Signature Significance Verdict: Lena Dunham Is An Awful Human Being

/ Jack Marshall / 21 Comments

 UPDATED!

Yechh.

Yechh.

If her boasting about abusing her little sister in her memoir wasn’t enough, Lena Dunham’s revealed conduct regarding “Barry” in the same tome rings the signature significance bell. No human being with a sufficient amount of decency would do something like this, even once.

In case you have not followed the latest ethics scandal involving the over-praised creator and star of HBO’s “Girls,” what occurred is this:

In one chapter of Dunham’s memoir “Not That Kind of Girl,” the feminist actress describes as factual an episode of sexual assault or rape that she says she experienced while an undergraduate at Oberlin. Her assailant was a well-known campus “Republican,” she says, a conservative whom she refers to as Barry—without the conventional quotes that would indicate a pseudonym.

There was, as it happens,  a real Oberlin college graduate from the same period named Barry, then well-known as a conservative, which then as now, is a species about as common at Oberlin as velociraptors. Besides his name and campus reputation, Barry fit some of the other details given by Dunham, such as wearing cowboy boots and sporting a flamboyant mustache. Now the 28-year-old man (the same age as Dunham)  is being tarred as a rapist, and has been forced to take down his social media accounts. He has hired a lawyer named Aaron Minc, with the help of donations from GoFundMe to help pay his legal fees, and has promised that any money he receives from the suit exceeding legal fees will go to charities assisting survivors of rape and sexual assault.

Dunham has not had the courage or decency to say anything, to or about Barry. But yesterday Random House did, in an extraordinary statement and admission: Continue reading →

Unethical Quote Of The Month (Lawyer Representing A Hypocritical And Unethical Client Division): Keith Wyatt

/ Jack Marshall / 12 Comments

“She lied to her mother so she could have sex with her teacher. She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that?”

—-Lawyer Keith Wyatt, L.A. Unified School District’s trial attorney who successfully defended it in a law suit by the family of a middle school girl who had been engaged in a six month sexual relationship with her math teacher. The girl’s family claimed the district negligently permitted the teacher’s criminal conduct to occur and that the teacher’s exploitation of the girl had caused emotional damage to their daughter. Wyatt also told a radio interviewer that it was a more dangerous for a 14-year-old to cross a street in traffic than to have sex with her middle-school teacher.

Yes, he’s an idiot.

Yeah, those middle school tarts all want it, right, Keith?

Yeah, those middle school tarts all want it, right, Keith?

The school district fired him, disavowing and apologizing for his comments. Yet they were willing to let Wyatt argue in court—on the school’s behalf, remember— that a 14-year-old middle school student was mature enough to consent to having sex with her 28-year-old teacher, and that she shared responsibility for what happened. Wyatt introduced the girl’s sexual history into evidence as proof of his client’s lack of culpability.

There is nothing wrong or unethical about Wyatt’s tactics in the trial itself. State law is weird in this area—this is California, after all, home of Hollywood, Roman Polanski fans, Woody Allen enablers, Miley Cyrus and the Kardashians—for while the age of consent is 18 in criminal cases, two appellate court rulings have held that the argument that a minor can consent to sex with an adult is permissible in civil law suits. He did what the law permitted him to do in defense of his client. That’s not just ethical lawyering, it is at the core of legal ethics. The argument won. Wyatt did what he was trained to do, paid to do, and obligated to do if he agreed to take the case

However, it is a revolting and irresponsible argument for any school or school district to make. Wyatt should have made this clear, and maybe he did (though that quote doesn’t support such a supposition.) Who in their right mind–well, OK, this is L.A.–would send their child to a school system that takes the position that a 14-year-old student is responsible when she is raped by her 28-year-old teacher, and that she’s really not being harmed if he does? The teacher, Elkis Hermida, was convicted of lewd acts against a child and sentenced in July 2011 to three years in state prison.  Continue reading →

The GOP’s Favorite Unethical Tactic: Deceptive Mailers

/ Jack Marshall / 6 Comments

McConnell mailerIt’s not sufficient, apparently, that Senator Mitch McConnell’s (R-Ky) Democratic opponent Allison Grimes has thoroughly disgraced herself (See here and here, and that’s not all, but I didn’t want to pick on her with so many other unethical candidates running under the banner of either political party) and probably squandered any chance she had of unseating the GOP Minority Leader. So  the Republican campaign geniuses decided to attack this not-ready-for-prime-time politician using a tactic out of former Republican Chairman Michael Steele’s playbook. That means unethical, for those of you who didn’t follow Steele’s slimy reign.

In 2010, Steele approved the GOP sending out mailers disguised as official U.S. Census documents twice, the second time after the House of Representatives had rebuked the despicable tactic and voted unanimously to make them illegal. Since then, the GOP has hectored those citizens foolish enough to contribute to a Republican candidate with mailings deceptively designed as renewal notices, as if something would expire if you didn’t send in another check. This is a sleazy method of inducing someone to open junk mail, and it shows how thoroughly mass mailing is dependent on influencing the dim, timid and too forgiving that such dishonestly packaged appeals work. Continue reading →

On Forced Acceptance Of Same-Sex Marriage: The Slippery Slope Stops Here

/ Jack Marshall / 113 Comments

Hitching-Post-Idaho

Donald and Evelyn Knapp, pictured above, are ordained ministers who conduct weddings at their for-profit chapel in Coeur d’Alene, Idaho, called “The Hitching Post.” After this year’s ruling by an Idaho federal judge that the state had to recognize  same-sex weddings, a City of Couer d’Alene deputy city attorney went on  local TV to say that for-profit wedding chapels could not legally turn away a gay couple without risking a misdemeanor citation. The Hitching Post, he noted, “would probably be considered a place of public accommodation that would be subject to the ordinance.” The Knapps say the the City Attorney’s office has made the same assertion in telephone conversations with them.

Now, the Volokh Conspiracy reports, the Knapps have moved for a temporary restraining order, arguing that applying the anti-discrimination ordinance to them would be unconstitutional and would also violate Idaho’s Religious Freedom Restoration Act.

They have to win. As Professor Volokh, a First Amendment authority of fame and renown, explains, Continue reading →