White House race roundup

  • High-profile trial lawyer and Hillary fundraiser John Coale now backing McCain, believes plaintiff-friendly Sen. Lindsey Graham, a confidant of the GOP candidate, will sway him on liability issues [Gerstein, NY Sun, Tapper/ABC, Haddad/Newsweek] More on McCain-Graham friendship [New Republic]
  • Reasonably neutral evaluation of contrasting McCain and Obama positions [Chris Nichols, NC Trial Law Blog]
  • No Naderite he? Sen. Biden has generally taken a “protect the golden goose” approach toward his state’s niche as provider of corporate law [Pileggi, Bainbridge]
  • Palin’s views on legal reform mostly unknown; Alaska (like Delaware) has one of the most highly regarded state legal systems, and wouldn’t it be fun if the state’s distinctive and longstanding (if somewhat attenuated) loser-pays rule got mentioned in the campaign?
  • Lending spice to campaign: prospect that victorious Dems might criminally prosecute Bush officials [Guardian (U.K.), Memeorandum, OpenLeft (“we’ll put people in prison” vows whistleblower trial lawyer/Democratic Florida Congressional candidate Alan Grayson)] Some differences of opinion among Obama backers on war crimes trials [Turley (Cass Sunstein flayed for go-slow approach); Kerr @ Volokh (Dahlia Lithwick doesn’t think it has to be Nuremberg or nothing); earlier]
  • If anyone’s keeping track of these things, co-blogger Ted is much involved with the McCain campaign this fall, I am not involved with anyone’s, so discount (or don’t discount) accordingly.

Corporate archaeology and the “insanity of retention policies”

Pete Warden (Aug. 14) is reminded of Dickens’ line about the great purpose of the law being to make business for itself, even as it gives everyone else reason to vandalize potentially invaluable data:

…Retention policy is a euphemism for deletion policy. Emails over a certain age are deleted, even from backups, usually after 6 or 12 months. The sole reason for this is so that if you’re sued, you aren’t able to hand over older documents, and there’s no question that you deleted them specifically out of a guilty conscience, it’s just your blanket policy. …

There’s no good technical reason for deleting old emails. You’ve made those backup tapes, it’s actually more work to make sure that old ones are destroyed. …

Email is the collective memory of an organization, and removing old emails is deliberate corporate amnesia. It’s needed because so many recent court cases have hinged on ‘incriminating’ memos, and with thousands of messages written every day, it’s almost certain that somebody’s dry sarcasm could be painted as deadly serious in front of a jury.

Why does this matter? You’re losing the history of the company. Unless you have explicitly copied them, all those old conversations and attachments you might need to refer back to one day are gone. It’s like putting a back-hoe through an archaeological site, you can never get that information back. Just like archeology, I’m convinced that there will be new techniques in the future that can pull more information out of that data than we can today. Old email should be an asset, not a liability. Unfortunately as long as the legal climate keeps companies terrified of losing the litigation lottery, they’ll keep deleting.

“EU wants to ban ‘sexist’ TV commercials”

Members of the European Parliament “want TV regulators in the EU to set guidelines which would see the end of anything deemed to portray women as sex objects or reinforce gender stereotypes. This could potentially mean an end to attractive women advertising perfume, housewives in the kitchen or men doing DIY [do-it-yourself].” (Chris Irvine, Daily Telegraph, Sept. 5).

Get shot, sue Craigslist

“A Manhattan boutique owner is suing craigslist.com for $10 million, claiming he was shot with a gun purchased on the popular Web site.” Police say Jesus Ortiz, described as a schizophrenic resident of Calvin Gibson’s East Village neighborhood, shot Gibson in an apparently random attack. Gibson “claims Ortiz told the cops that he bought the gun on craigslist, and that the suspect’s mother told others the same story.” (Jennifer Fermino and Philip Messing, “Man Shot by ‘Craigslist’ Gun Takes Aim at Site”, New York Post, Sept. 5).

Another lost-pants case

Unlike Roy Pearson in the celebrated D.C. case, Charleston, W.V. lawyer Richard D. Jones isn’t demanding $67 million from the dry cleaner, nor is he a sitting judge (his practice is in civil defense). About the only visible angle that distinguishes the case from the entirely ordinary: Jones wants punitive damages from defendants Pressed For Time and Lisa Williams. (W.V. Record, more).

Texas: another case for payee notification

ABA Journal: “After stealing more than $1.6 million from at least 46 clients over a six-year period, then-personal injury attorney Steven Bearman reportedly kept working as a Houston lawyer while awaiting trial after his 2006 arrest.” Among other defalcations, “Bearman settled clients’ cases without telling them”, exactly the sort of misconduct that payee notification (having insurers give notice directly to claimants of the timing and amount of settlements) is meant to stop. Texas unfortunately is not one of the dozen states that have enacted the reform (per an ABA compilation, they are California, Connecticut, Delaware, Georgia, Hawaii, Kansas, Massachusetts, Nevada, New Jersey, New York, Pennsylvania, and Rhode Island).

Watch what you say about lawyers: Marina Tylo, Paul Revere III, Jones Day

Lawyer/blogger Andrew Lavoott Bluestone, in his New York Attorney Malpractice Blog, noted and quoted a case in which Brooklyn lawyer Marina Tylo was (unsuccessfully) sued by a client for “serving a summons before buying the index number,” that being the wrong order in which to do things in New York. Tylo has proceeded to sue Bluestone for $10 million and several blogs have already 1) mentioned the strong privilege that attaches to fair reports of court proceedings and 2) suggested that Tylo will before long be well acquainted with the phrase “Streisand effect“. Coverage: Scott Greenfield, Eric Turkewitz, Mike Cernovich (more), Citizen Media Law Project, Ambrogi/Legal Blog Watch.

In March Peter Robbins, a retired homicide detective who blogs for Cape Cod Today as the Robbins Report, ran an item criticizing the law offices of Paul Revere III (yes, a descendant of you-know-who) and various local residents he represents, for having filed a procedural action seeking to stop the dredging of Barnstable harbor on environmental grounds. Robbins opines (to quote the post in its current form):

In my opinion this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money. Millway Beach and Blish Point were pretty much created by past dredging. Perhaps if the town didn’t have to waste its time with foolish actions such as these, they would have been able to concentrate on the real issues and the bulkhead could have been saved. Who knows?

Robbins mocked the lawyer as “Paul (the dredge isn’t coming) Revere III” and, in the original version of the post — now altered — described one of the local abutters filing the dredge action, Joseph Dugas, as “infamous” with an added, unprintable opinion-based expletive. Now Revere and Dugas have sued Robbins and an anonymous third party who posted further hostile comments about the two. (James Kinsella, “Defamation suit filed against CC Today blogger, commenter”, Cape Cod Today, Aug. 29). Robbins is being represented by our very own Overlawyered guestblogger and Boston-area lawyer Peter Morin, who wrote in a response, “This matter is a textbook example of the justification for an anti-SLAPP statute that protects the right of individuals to comment on matters of significant public concern.” David Ardia at Citizens Media Law Project has an analysis which mentions Massachusetts’s existing anti-SLAPP provisions, and Dan Kennedy at Media Nation (via Ambrogi) takes a look at the case, observing that it’s hard to evaluate the merits of the defamation claim since we don’t know exactly how the blog post read before the publisher made deletions to it at the demand of the plaintiffs.

Finally, Chicago’s BlockShopper is a site that reports on real estate transactions in in-town neighborhoods, often with descriptions of the professionals buying and selling the homes and condos, a practice that has now drawn a lawsuit from the giant international law firm Jones Day. “The suit alleges trademark infringement and unfair trade practices, based on Blockshopper’s use of the firm’s [Jones Day’s] service marks, links to its site and use of lawyers’ photos from its site.” Although BlockShopper removed all references to Jones Day, “the law firm continues to seek an injunction shutting down the site”. Unauthorized use of photographs and service marks presumably might give rise to valid claims, but the reference to “links to its site” may suggest a broader sweep, and in negotiations Jones Day is reportedly trying to extract a commitment from the site not to conduct journalism about its member lawyers’ real estate transactions at all. (R. David Donoghue, Chicago IP Litigation Blog, more; Ambrogi, Legal Blog Watch; Citizen Media Law Project).

Esquire, turned inventor

“Patent-holding companies are making fortunes through litigation, and some law firm attorneys have decided to play the game for themselves.” One lawyer “says he is mindful of the impression that can be made on the public when lawyers turn up behind shell companies that exist only to file lawsuits. ‘Lawyers have a trusted and special role in society,’ [Dechert’s Chris] Graham says. ‘We have a responsibility to restrict our own activities.'” (Joe Mullin, “Tempting Terrain”, IP Law and Business, Sept.).