For you ERISA-types out there, I found this post which links to a document in PDF that is a "Chronological Summary of all the Major Benefits Legislation enacted since ERISA."
Admittedly, not every thought needs expression, nor every opinion voiced. However, it is always a concern of mine while writing on this blog and in briefs as to the parameters of holding judges and justices accountable for what they say and do and whether that robe is made of teflon or tofu.
The following post and link from Marcia Oddi at the Indiana Law Blog references another site but gives you some insight on what to say and what not to say to judges.
Courts - "A Primer on What Lawyers Can Say About Judges"
Bruce A. Campbell of the Texas Lawyer has this article. A quote: What happens when an attorney makes a false statement about a member of the judiciary? Will the offending attorney be disciplined? Perhaps, but not necessarily.
Louisville lawyer Finis Price at TechnoEsq has posted commentary on a story about jurors "googling" for information in violation of judge's instructions. See, Jurors Using Google and the Internet.
We all know the story of a lone jury member disregarding his/her instructions given by the presiding judge in a case and reading the newspaper or catching the local news to find out information about the case on which he/she is sitting. However, apparently a new and more disturbing trend has arisen, jury members who perform research on the Internet or look up definitions of words and concepts on Google.
However, this story is disturbing on so many levels beyond the mere fact that we have "googlers" on the jury, but rather jurors who violate their oaths to the court and to the system, and then break their promises to lawyers and litigants alike to listen to the evidence and abide by the law as given to them by the judge and limit their decision to the facts presented in the courtroom and not the backroom.
Another even more disturbing implication is whether their googling efforts are limited to terms and definitions. Googling for personal spaces/faces of litigants and lawyers is not a stretch either, and this involves two issues.
First and foremost, the gaining of information outside of the controls of the court system.
Second, lawyers and bloggers responsibilities to the system regarding their comments and analysis on pending cases or continuing issues.
With regard to the blogging and web site issues, I do not have an answer but will continue to reflect on it further. In a nutshell, the KBA permits blogging with approval of the about page (lawyer information). However, the informal guidance by the KBA assumed (I believe) that blogging was a synonym for "journalism" or something other than "commercial speech". Such an assumption is ill-conceived by the KBA and improvidently implemented by those lawyers who connect seamlessly integrate their blogs into their web sites and thus make it commercial advertising on topics that are currently regulated by the bar.
What do I mean by "seamlessly integrating"? There are some blogs which are distinct and separate from their firm's web site (which must be approved entirely by the KBA) and each of which has a separate domain name. Some even have a separate and distinct theme on top of the physical domain name separation. Then there are blogs which are tied directly into the web site with just a topic in which the legal blogger remarks on items of interest relevant to the law and to his practice. In these "seamlessly integrated" legal blogs, the reader can easily be confused where the "journalism" of the blog ends and the "advertising" of the firm's web page begins.
Is the blog tied into the web site nothing more than an "on-line" mailing or is it really a piece of journalism and opinion that is clearly not advertising? The KBA will probably be addressing this one day. I, for one, like many other lawyers have opted to keep the "journalism" separate from the "advertising" to avoid confusing and misleading readers. Plus, the "audience" for the Kentucky Law Review, the Kentucky Court Report, and Sixth Circuit Cases is lawyers and legal professionals, not general members of the public. A distinction with a difference as probably envisioned by the informal guidelines from the KBA. If the legal blog looks like it's just another page at your web site, then you may fall into the zone of KBA scrutiny, especially if the content focuses on you, your firm, and your lawyers with announcements and their availability to handle those matters or share the word on their accomplishments. Note that Kentucky is one of the few states requiring pre-approval of some of the advertising, and in-state lawyer/bloggers need/should keep an eye on the out-of-state designers, many of which advocate the blog's integration into the web site.
Blogging is nothing more than push technology in the computer sense of the term.
Blogging is also considered by some as journalism. However, it is not the label that will control but rather the language of the post.
More later.
Updated 7/29/2008 @ 7:35 a.m. I woke up this morning and thought I needed to clarify this post drafted last night. Deletions are marked out with a line and additions noted in italics. Mike.
The following story from Law.Com on Ohio's experience with the self-help divorce kits reveals what should have been a self-evident and self-fulfilling problem. It practicing law was so easy, then why require four years of college, three years of law school, a rigorous admission examination, and continuing legal education for the privilege of practicing the profession? Well, it wasn't.
I took two bar exams upon graduation (West Virginia and Virginia) was admitted on motion to Kentucky, and have been admitted before those three states, as well as several federal district courts and circuit courts, plus the United States Supreme Court, and still that does not mean I should be dabbling in a multitude of legal subjects beyond that which I have spent years studying, practicing, writing, litigating, and otherwise honing my skills in the library and in the court rooms.
But, alas I digress. Self-help kits serve a purpose, but the unintended consequences are coming home to roost for some. Thanks to Marcia Oddi of the Indiana Law Blog for this story (which I am linking to - sorry for the need to click and repeat the click).
Courts - "Ohio Judges See More Do-It-Yourself Divorces and System Slowdown "
A long AP article today, posted by Law.Com, reports:
With the economy down and the cost of lawyers high, more people are choosing to represent themselves in divorce cases. But legal amateurs who struggle with complicated paperwork are slowing down an already clogged system, some judges say. * * *
Legal information is widely available in bookstores and on the Internet for couples looking to save money. Legal fees for the simplest dissolution, not involving children, are about $1,000, Columbus, Ohio-area lawyers say. Dissolutions with children start around $1,500. * * *
Self-representation is an absolute right. But it slows an already-clogged system that isn't designed for amateurs, said Judge James Mason of Franklin County Domestic Relations Court.
"It's an ever-increasing problem," Mason said. "Some of these cases just need so much massaging."
His bailiff estimates that pro se filings, relatively unusual a decade ago, now amount to more than a third of Mason's cases. * * *
Back in January of this year, I remarked on pending legislation in Frankfort to increase Small Claims Court jurisdiction. I also suggested that district court jurisdiction should also be increased to reflect the inflationary changes since the jurisdictional amount of $1,500 for small claims court and $4000 for district court was established in 1976.
My story was entitled "SUGGESTED LEGISLATION: Upping the jurisdicitonal amount for district court is due." and another follow up was "MORE on my suggestion to up the district court's jurisdictional amount which has remained unchanged since 1976!" My post reflected on the inflationary aspects on the jurisdictional amount and then contrasted them with the minimum liability insurance coverage in the Commonwealth for cars such that $25,000 would be a good number for the courts, the consumers, and the claims.
Well, we have the one legislator who prompted the proposal - Mike Harmon. Another Mike (me). And now, Mr. Lawreader himself, Stan Billingsley has identified that no state in the country has a lower jurisdictional amount for small claims court than Kentucky. At $1500, Kentucky Small Claims Court has the lowest Dollar Jurisdictional Amount in the United States…its time for a change.
Courts - The Supreme Court and its conundrum of continuity and change - Linda Greenhouse, who is soon to leave the NY Times after 30 years, offers reflections and a personal overview of the Supreme Court's work titled "2,691 Decisions." Here is a sample: * * * *
The following post from John Day's Tennessee blog "Day on Torts" - When the Defendant Admits Liability - reminded me that the insurance defense industry and their lawyers rely on more than just "delay, defend and deny" when it comes to the payment of claims.
Per Mr. Mercer K. Clarke's article Defending the Damages-Only Case published in the Winter 2008 edition of Federation of Defense and Corporate Counsel Quarterly, insurance lawyers rely not only on their own preparation but anticipate and prepare for lack of claimant lawyer's preparation!
When insurance lawyers are paid by the minute to prepare, and with so many cases being disposed of by negotiation, litigation, and mediation rather juries and trials, it is no small wonder that enormous preparation by the insurance lawyer is now being expended on all cases earlier - or "front loading" the hours rather than waiting. This strategy makes sense financially for the firm, but also is ethically and professionally justified by providing competent representation - the sooner the better. With fewer insurance defense cases coming through the insurance defense firm's door in an ever tightening market, it is not surprising that each case's financial fruits are harvested fully and faster.
I found the following insurance lawyer's observation and revelatory insight of the opposing counsel intriguing by it's blatant honesty and by its utter simplicity in recognizing the key element of any insurance lawyer's defense is more preparation, better preparation, best preparation.
However, I do question the assumption that an insurance defense lawyer admitting liability is usually a recommended tactic when there is no defense. Often, the insurance defense presents a "disingenuous defense"; one that may or may not withstand a directed verdict, but clearly at odds with common sense and reason. However, it allows the insurance defense lawyer to be gracious to the jury which will determine the facts while at the same time presenting legally irrelevant but emotionally compelling testimony and facts to set up a possible "jury nullification" on liability or damages (eg., the zero pain and suffering verdict).
The article Defending the Damages-Only Case states, in part, that:
Plaintiffs often are more reticent at deposition in expressing how the injury has affected them than they are at trial, after their counsel has paid more attention to preparing. The differences between deposition and trial testimony can be useful in arguing to the jury that the injury and disability have not affected the plaintiff as much as his or her counsel claims. Deposition testimony about what the plaintiff cannot now do because of the accident may also be subject to impeachment by surveillance. If a significant difference can be shown between post-accident life as described by the plaintiff and spouse and that depicted on surveillance film, the plaintiff’s credibility with the jury will suffer.
Hans Poppe at his law firm's web site has posted the following blog entry entitled "Louisville Lawyer Suspended from Practice and Criminally Charged For Allegedly Stealing". The post references a Courier Journal story on the suspension and criminal charges and Hans adds the following comment. However, click on the story for his entire post and a link to the Courier Journal story referenced therein.
As reported today in the Courier Journal, Louisville attorney Louis Smith has been accused of stealing money from his clients. Prosecutors allege that Smith, an estate attorney, began stealing from clients, including Emily Strange, around 1999. * * *
It has been my [Hans Poppe's] experience that lawyers that steal money from clients don't usually have any insurance or assets. This necessarily means that it will be very difficult for any of his victims to recovery in a legal malpractice lawsuit; however, that doesn't mean his victims should sit idly by, they should hire an attorney to investigate if insurance is available and what, if any, assets are available to reimburse the clients and their estates.
