A work in progress

April 3rd, 2013

I apologize in advance for the shamelessly “homerish” tone of what follows, but I felt the need to write this.  I’ve been in Houston for many, many years now, and I see things happening that I am proud to see.  I think we are doing well.

A few days ago, I had need to visit the Clerk’s office of the Fourteenth Court of Appeals.  The Clerk’s office is in the same building as the Court, itself, the recently restored 1910 Harris County courthouse, which has now become home to the Fourteenth and also to the First Court of Appeals.  I parked on Preston Street, in the area known as Market Square, and headed southeast toward the courthouse.

As I walked by the corner of Preston and Travis Street, I saw the beginnings of a mural that was being drawn and painted on a two-story wall.  The painting was in its infancy, but the outlines of the mural were already drawn.  It was a drawing of Houston’s downtown skyline with the word “Houston” prominently displayed in the middle of it all.  Colors were being filled in, bit by bit, though the end product was far from complete.  Nevertheless, it was obvious, even at this early stage, that the end product would be full of vibrant color and energy.

And I thought to myself:  “This wouldn’t have happened ten or twelve years ago.”

Because, strangely, I think I find myself in a city that is experiencing a renaissance.  Houston has, for many years, had a civic inferiority complex.  There have been scams and scandals here, but nothing that would draw anyone in; nothing—besides money —that would make them want to be here.  But, it seems that may be coming to an end.  What I see recently is a new sense of pride.  It’s been tried before, but this time it seems like it’s sticking.

Suddenly, Houston is cool.  Houston is a destination.  Even in neighborhoods off the beaten path (and I include my own humble home which has become known as “the GOOF,” where new restaurants and one of the best craft beer bars in the country now reside), there seems to be a sense of possibility and maybe a feeling that there is actually something unique here and worth exploring.  Maybe it’s a transient thing.  Maybe it’s just the fact that Houston survived the recent economic turmoil with less fallout than most cities.  Maybe having a job constitutes being hip, these days.

The truth is that the Bayou City (yes, that’s what we call it) has always been a strange amalgam of go-for-broke business (see, the Allen brothers), artistry, and immigration.  Houston is now the most ethnically diverse city in the entire country, and it’s a leading indicator of where the country is going, ethnically, politically, and demographically.  It’s increasingly progressive.  And now, it’s being discovered.  It‘s kind of nice.  Because there’s always been a lot here.  We’re still building, but it’s not done yet.  We’re still making it better, because it needs to be and because we can.  And if we weren’t, we’d be abandoning the very foundation of Houston’s success.  If there’s one thing I’ve learned from being here, it’s that Houston doesn’t stand still.  That’s just not the way we do things here.

UPDATE:   And the Daily Beast confirms it.

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A move to restore sanity….

March 3rd, 2013

Ragging on the Texas Supreme Court—particularly when it comes to the Court’s rulings on healthcare law—is not exactly a new pastime for me.  To be honest, I’ve probably said a lot more negative things about the Court’s interpretations of the Texas Medical Liability Act than I have positive things.  A lot more.  So it’s nice to be able to point out when I think the Court got something right.  And a couple weeks ago, it did exactly that in the case of Certified EMS v. Potts.

 Potts is kind of a big deal for those of us on the plaintiffs’ side of the bar.  Some time ago, the Texas Legislature required that plaintiffs in healthcare liability cases provide reports from qualified medical experts that support their allegations very early in a case or have the case dismissed.  And by “very early,” I mean before any kind of meaningful investigation beyond reviewing medical records.  No talking to opposing witnesses, no talking to defendants.  Figure it out from the records or have your case thrown out of court.  Sometimes, one theory is obvious from the records, but others aren’t so easily discovered.

The basic mechanism of the procedure is that a plaintiff has 120 days from the time he files his lawsuit to serve an expert report that addresses the three chief elements of his liability case—the standard of care, breach of that standard, and causation—on the defendant.  Once he serves that report, the defendant has 21 days to object to deficiencies in it, and the plaintiff usually gets another 30 days to cure that deficiency.  If the plaintiff doesn’t cure the deficiency, and the trial court agrees that it is a deficiency, the defendant can move to dismiss the case and recover his or its attorneys’ fees and costs from the losing plaintiff.  The idea is to weed out, at an early stage, frivolous cases—the ones that can’t be won by the plaintiff; no way, no how.

Years ago, the Court held that the only thing a plaintiff needs to do in an expert report is set out the basic stuff the defendant did wrong—the conduct the plaintiff’s suit calls into question—and show that his case has “merit.”  At the same time, the Court held that “showing merit” doesn’t mean proving the case, as would need to be done at trial, and it doesn’t mean removing all doubt as to whether or not the plaintiff can ultimately prevail.  But in the grand tradition of “give ‘em an inch, and they’ll take a mile,” health care defendants have taken what was, ostensibly, supposed to be a brief procedural matter and turned it into a mini-trial that can last well over a year, all the while running up costs that the health care liability law was supposed to limit.  Rather than saving objections to expert reports for those cases where there is a clear deficiency, many health care defendants and their lawyers—on marching orders from the real puppet masters, their insurance companies—object to every expert report they’re given and move to dismiss every case, regardless of its merit.  And that’s what happened in Potts.

The facts of Potts really aren’t as important as the holding.  That said, the plaintiff in Potts had set forth more than one theory of liability—against a corporate defendant, individually, and through one of its employees—but provided an expert report that supported only one of those theories—the one through the employee.  The defendant moved to dismiss—not the case—but the claim against itself, individually, though the vicarious claim would have survived.  The trial court denied the motion, and the First Court of Appeals affirmed, holding that the Texas Medical Liability Act seeks to dismiss entire cases or causes of action, not individual theories of liability, by its plain language.  The Texas Supreme Court’s opinion is a bit shorter on analysis (it specifically says that it doesn’t adopt the First Court’s rationale), but it reaches the same conclusion—supporting one theory of liability lets the case go forward as to every theory alleged (and even new ones that weren’t alleged before, as long as the defendant stays the same).

The holding itself is useful, but for me, the real significance of Potts is that it’s an effort by the Texas Supreme Court to cram the genie back into the bottle.  Recent precedents suggest that the Court is getting tired of the number of health care cases being brought up before it on procedural technicalities.  Potts stands as another in a line of cases that attempts to restore authority to trial courts over a procedure that has become—put bluntly—disrespectful of the authority of those trial courts.  With Potts, the Court has definitively cut off one avenue of appeal, and it may be only a matter of time before we eventually see a defendant held responsible for filing a frivolous appeal of an expert report matter.  Texas appellate courts are, understandably, reluctant to issue such rebukes, but one may be necessary before the landscape truly changes.  Nevertheless, the Texas Supreme Court has taken a needed step toward sanity with Potts.  That is something I am happy to write about, any time.

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Go Nuclear or Go Home

February 22nd, 2013

Texas law has a number of provisions that are designed to protect public employees who report wrongdoing and illegalities in their midst.  Probably the best known is the Texas Whistleblower Act.  The term “whistleblower” gets a lot of press because of instances like the Enron scandal, but the actual Whistleblower Act’s focus is on public employees, only, and that focus is a pretty narrow one.

In a case decided today, the Texas Supreme Court made that focus even narrower.  The case is University of Texas Southwestern Medical Center v. Gentilello.  It seems Dr. Gentilello, a faculty member at the medical school, expressed concerns that residents—basically, new doctors who haven’t completely earned their full right to independent practice yet—were treating and operating on patients without the supervision of an attending physician and that this was a violation of Medicare and Medicaid requirements under federal law.  He reported his suspicions to a supervising faculty member.  Subsequently, Dr. Gentilello was stripped of his faculty chair positions, and he claimed that this was in retaliation for his report.  (Because of the procedural stage at which this case was disposed, causation was never developed.)

Dr. Gentilello filed suit under the Texas Whistleblower Act, and UT Southwestern filed a plea to the jurisdiction, arguing that he couldn’t satisfy the particular jurisdictional prerequisites of the Whistleblower Act and one of them, in particular.  The Act says that, for a report to be protected, it has to be made to “an appropriate law enforcement authority.”  Dr. Gentilello argued that the supervising faculty member to whom he made his report was just such because federal regulations charge hospitals with self-enforcement of this kind of thing, and thus reporting to a supervisor—who acted as a compliance officer—was sufficient.

But the Texas Supreme Court held that enforcing compliance and enforcing the law are two different things.  Consequently, a report to a supervisor wasn’t good enough to meet the “appropriate law enforcement authority” standard.  The interpretation (I won’t say as much for the language of the Act) makes a certain sense but leaves any employee with a very unappetizing choice—report to a supervisor and forego the protection of the Whistleblower Act or call the cops, and risk being a workplace pariah in the event he got any of his facts wrong.  The employee who goes to “an appropriate law enforcement authority” is almost always going to be going outside of his own public agency to either a police or other regulatory agency.  (The Court mentioned a few exceptions, mostly involving employees who were already working in law enforcement agencies.)

Notably, not every whistleblower-type law requires this kind of Hobson’s choice.  Other statutes specifically allow a report to a supervisor to fulfill the role of the law enforcement report required by the Whistleblower Act.  It relieves the employee’s dilemma and potentially allows intra-agency resolution of what might turn out to be a minor misunderstanding.  But, given the current language of the Whisteblower Act and the Court’s interpretation, an employee has the choice of the nuclear option or nothing.  Breaking ranks like this is a difficult thing to do, but when internal reporting is rarely sufficient, it is either that or turn a blind eye to wrongdoing and, thus, be complicit.  Is this really what we want to ask from our public servants?

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Baseball and the public trust

November 14th, 2012

A winning sports franchise can be a point of civic pride.  Economists and others much smarter than I frequently seem to argue about the value of professional sports to a city’s bottom line, but there can be little doubt that such things contribute to a city’s image and can influence how its own residents perceive it.  There’s an air to the classic teams—the “Showtime” Lakers, the “Bronx Bomber” Yankees, and the blue-collar “Steel Curtain” defense of the Steelers—that reflects the cities they call home.  Never mind that much of it is just image; it’s an image the public loves to see and make its own.

So it helps to explain (though, perhaps, not to justify) when public money goes into building stadiums and arenas for these millionaires’ games.  As long as a team owner is working to put a winning team on the field and seems like a nice enough sort, he can generally be confident of support from much of the public, though there will always be a vocal minority in opposition.  And then there’s Jeffrey Loria (look down the page; amazingly, he’s only number 9).

Loria is the owner of the Miami (née Florida) Marlins of the National League.  Loria isn’t just disliked; he’s despised.  This is despite the fact that the Marlins have won two World Series in the last 15 or so years, in 1997 and 2003.  So why all the Loria hate?  Because of stuff like this.  Yesterday, the Marlins came to an agreement in principle to ship away in the neighborhood of $160 million in future salary commitments to players, several of whom—like All-Star shortstop Jose Reyes—were signed only last offseason.  (ESPN Radio reports that many of the players traded had back-loaded contracts, suggesting that this move was likely planned all along.)  This followed the shipping of several other stars—Hanley Ramirez, Heath Bell—to other clubs during and immediately following the 2012 season.

Now, fire sales are nothing new.  Rebuilding franchises do it all the time.  There comes a time when a club simply has to cut bait and build for the future.  But the Marlins are old pros at this, having had fire sales immediately following both their World Series wins (interestingly, the only two times that the club has made the playoffs in its 20 year existence).  And this latest one comes shortly after Miami taxpayers footed 80% of the bill for a new Marlins stadium, even as Loria pleaded poverty.  (The financing was a concern all along and even drew the attention of the SEC.)  A resourceful hacker got a hold of the Marlins’ financial statements and furnished them to Deadspin.  They showed that the club was anything but in the red, months after it asked the public to finance a stadium it claimed to be unable to finance itself.  And that’s the real rub.  The taxpayers helped Loria line his pockets, and now he is punting on his end of the deal.

Granted, nothing requires Loria to put a championship team on the field.  Loria can soak the local populace and pocket the funds that come from it.  But, as I mentioned before, sports teams are a source of local pride.  Even so, a national organization—in this case, Major League Baseball—oversees them.  And this has got to be MLB’s worst case scenario.  Essentially, one of its owners has defrauded local government.  That’s bad for the business of government, it’s bad for the business of baseball, and it means that the local fans aren’t just taken for granted, they’re taken for a bunch of suckers. I rather suspect that Loria’s actions may prompt some sort of legal action from the city.  The question is whether it would have a leg to stand on, given that it seems the entire city government bought Loria’s line without asking many questions.  It seems the city never asked for much information about whether the Marlins could afford to contribute more; they just took them at their word.  That word was no good.

Miami residents should be revolted by Loria and perturbed by their own city officials who allowed this to happen.  And Major League Baseball should be getting involved.  Otherwise, the prevailing image of baseball in Miami is essentially a real estate con.  No city should have its team provide that image.

 

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There goes my hero….

September 7th, 2012

Justice Phil Johnson is one of my new heroes.  And that’s not something you’d expect given my sort of practice and Justice Johnson’s pretty conservative views.  Understand, Justice Johnson is a solid Republican jurist—former member of the Amarillo Court of Appeals and serving on the Texas Supreme Court since 2005.  But, at this week’s Texas Bar Continuing Legal Education seminar for appellate practitioners—what I call “the gathering of the law nerds”—Justice Johnson quietly but emphatically called some of the stuff coming out of our Texas Legislature in so many words a big ol’ bucket o’ crazy.

What Justice Johnson actually said was that some of the folks currently being elected to our Texas Legislature are having to take terribly extreme positions just to get elected.  (My question, of course, is why would anyone alter his beliefs to get elected to a job that pays $600 per month?)  At any rate, Justice Johnson observed that this results in some bills getting introduced that probably a significant number of Texans (and maybe even some who serve on the Texas Supreme Court) would rather never see the light of day.  It was an unexpected moment of candor, and it was really nice to hear a Texas Supreme Court Justice express some of the stuff I feel most days.

It’s also nice to know that there’s still sanity on our high court.  I say plenty of nasty things about what the Texas Supreme Court does, and I will never hold my tongue unless it’s a case of my own in question.  Little statements like that made by Justice Johnson (somewhat) renew my faith in our Texas courts and in the high court, in particular.  In a system where it’s easy to feel that the deck is stacked, it’s nice to at least have a notion that the dealer is honest.

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The Man and the Myth

August 26th, 2012

In my other life (the one outside of the legal profession), I’m a pretty avid cyclist and have been for over a decade.  This translates to my going out on weekend bike rides of 40-50 miles a pop for most of the year and usually riding at least one significant two-day tour (think, MS150) each year.  For most of the time I’ve been a serious cyclist, Lance Armstrong has been the central figure in the professional sport, or, at least, the one best known to everyone in the U.S.

You can call Armstrong a lot of things:  a Tour de France champion, a fierce competitor, an arrogant opportunist, and a philanthropist.  And for a lot of years, a number of authorities have been trying to pin another label on him:  dope cheat.

Professional cycling has been a dirty sport for a lot of years.  It becomes understandable when you see what riders in one of the major tours put themselves through—thousands of miles up seemingly impossible climbs and through all manner of conditions.  And at the end of weeks of racing, a few seconds can decide the winner from the also-rans.  Doping became a huge and shameful part of the sport, and the efforts have only recently gotten serious in cracking down on it.

For his part, Armstrong presented a script that Hollywood couldn’t have written any better.  A cancer survivor—and barely, at that—who came back to, not just win, but dominate on the biggest stage his sport has to offer.  Add to this the fact that he used his new-found fame to raise millions of dollars for cancer research and to improve the lives of people suffering from cancer, and it’s a story that seems too good to be true.  And the U. S. Anti-Doping Agency says it is.

Anti-doping forces have been pursuing Armstrong for years, accompanied by members of the media—including a very vocal French contingent—who believe he cheated to win France’s signature sporting event.  But, during his career and the thousands of drug tests that involved, no one ever nailed Armstrong.  He passed every test, if not with flying colors, at least sufficiently to prevent his accusers from proving their case.  Nevertheless, this week USADA purportedly stripped Armstrong of all seven of his Tour de France titles and obliterated fourteen years of his career.  And this bothers me for a number of reasons.

Everyone agrees that urine and blood testing is the gold standard for finding out if an athlete has been doping. As mentioned, that kind of testing was done on Armstrong to an incredible extent, and he never failed a test that actually lived up to the appropriate procedural.  (I have heard it said that some of Armstrong’s test results were thrown out based on “technicalities.”  What the media tends to call “technicalities” are often what we in the law call “fundamental rights” and this isn’t the place for me to expound on my loathing of the term “technicalities.”  Suffice to say, the USADA couldn’t get the job done with its testing.)  When USADA realized it couldn’t convict Armstrong with scientific evidence, it turned to anecdotal evidence–testimony from teammates and former teammates, some desperately trying to clear their own names or find someone else to blame for their own getting caught (see Floyd Landis).

Secondly, Armstrong has now said that he’s not going to fight the allegations anymore. The USADA’s reaction was that his refusal to contest the allegations was being taken as an admission of guilt. That’s rubbish. Absent a duty to speak, silence is not a confession of anything. USADA has taken the position that, because Armstrong won’t engage it anymore, it is now free to dispense with the burden of proof altogether and jump straight to “guilty.”

Third and finally, there is the question of the tactics employed by USADA, WADA, and other anti-doping crusaders. As I’ve written before, these people strike me as true zealots, and their tactics raise some serious questions about privacy and propriety. Riding in a bike race doesn’t mean giving up all rights to privacy and to due process.  So do I think Armstrong is innocent? Probably, no. I’d like to think so, and I still hope so. The truth is I don’t know. But do I think he’s been shown to be guilty and given his procedural due? Absolutely, unequivocally, positively, no.

For my part, I will continue to admire Armstrong.  Even if his Tour wins were tainted, there is plenty of likelihood that he was no worse than anyone else participating.  Moreover, the symbol of Armstrong will always be at the forefront.  Having seen my father succumb to cancer and having witnessed my wife haunted by its specter, what Armstrong has done for cancer awareness and funding is bigger than anything else he might or might not have done.  Ever.  I will continue to wear my LIVESTRONG bracelet every day, even in court.  And when it breaks, I’ll go buy another.  Because sports isn’t just about competition; it’s about myth-making.  And sometimes we need the myth more than we need the man.

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The Healthcare Express Trainwreck, Part II

July 7th, 2012

A year ago this last April, I wrote about a couple of cases that concerned the potential applicability of the Texas Medical Liability Act being accepted for review by the Texas Supreme Court.  At that time, I expressed confidence that the Court would use these cases as an opportunity to put the brakes on the ever and over expansive reach of the Medical Liability Act.  As I noted in other posts, the reach of the Act was growing absurd, with defendants arguing that medical expert reports were needed to deal with matters such as pest control and who-knows-what-else-by-the-time-all-this-is-done.  But never fear.  The high nine in Austin would draw some reasonable boundaries, recognizing that the Medical Liability Act is meant to address claims arising out of a certain sphere of activity and nothing else.  The justices would restore order and common sense with the stroke of a pen.

And then they did this.

In Texas West Oaks Hospital, LP v. Frederick Williams, a hospital employee sued his employer for negligence following a fight with a severely paranoid-schizophrenic patient, prone to violence.  In the altercation between the patient and Williams, the patient died, and Williams was injured.  The patient’s family sued both the hospital and Williams, individually, under a healthcare liability theory, and Williams cross-claimed against the hospital for failure to provide him a safe workplace and train him to deal with severely schizophrenic patients.  Both the trial court and the Fourteenth Court of Appeals rejected the hospital’s argument that Williams’s suit against the hospital was a healthcare liability claim.  The Court of Appeals reasoned that the hospital’s duty to Williams arose out of an employer-employee relationship, not a physician-patient relationship and that claims arising out of safety provided by a healthcare institution deal with safety that is “directly related to healthcare” under the plain language of the statute.  But not according to the high court.

In a majority opinion authored by Justice Wainwright, the Court managed to divorce a claimant in “healthcare” from any sort of physician-patient or provider-patient relationship and safety under the Medical Liability Act from safety having any relationship to healthcare.  The Court held that Williams was a “claimant” under the Act, regardless of the fact that he never sought healthcare, never received healthcare, and his damages had nothing to do with receiving healthcare.  Justice Wainwright observed that “[T]raining and staffing policies and supervision and protection of [patients] . . . are integral components of a [health care facility's] rendition of health care services . . . .”  (Those are his brackets, not mine.)  And thus, friends, are massive cans of worms opened.  Because, if training and staffing–things that every employer does–are “integral components of the rendition of health care services” when done by a healthcare facility, what isn’t?  Is payroll a healthcare function?  What about trash pick-up?  How about contracting for food service for patients?

And what happens when a hospital gets sued for allowing a sexually or racially hostile work environment?  Well, according to the EEOC, a charge gets filed and then you get a right to sue in federal court.  But, according to the logic of the Texas Supreme Court (assuming it follows the logic of Williams), that’s a healthcare liability claim.  Why?  Because “training and staffing policies” are part of healthcare, and those almost always come into play in employment cases.  And what happens when someone trips in the parking lot on the way to see his doctor?  Or slips in the hallway?  Because safe parking lots and hallways are needed to “protect patients” and are thus a part of healthcare.  So, if you’re suing a hospital for a slip-and-fall, be prepared to have a medical expert—a physician unless you want to bring in two experts—on waxing floors in a medical setting.  Or fixing potholes in the parking lot.  Or putting up warning signs.  Or policing the place for thugs that might assault patients.  And, of course, contracts to purchase treatment modalities and therapies under contract is pretty clearly related to patient care.  [*head explodes*]

Whatever, it’s all healthcare.

And that’s where the Court is really subject to criticism here.  The Medical Liability Act isn’t meant to encompass every single case against a healthcare provider.  That’s not my opinion; that’s the Court’s own explicit statement.  But when the Court expands the coverage of the Act this much, what doesn’t fall under its purview?  Answer:  nothing.  If it’s brought against a physician or healthcare provider, it’s healthcare.

So why should this matter to you, the consumer of healthcare?  Because part of the Legislature’s whole [stated] purpose in enacting the Medical Liability Act was to reduce the cost of malpractice insurance for physicians and healthcare providers in Texas.  How does ensuring that a whole mess of stuff that has virtually no connection to patient care gets treated as the subject of a malpractice policy advance that goal?  (Hint:  It doesn’t.)  Insurance companies write policies based on risk.  The Court has made the risk undertaken by Texas medical liability insurers a constantly moving target.  Moreover, they’ve made it a vastly larger target.  As Justice Lehrmann—rapidly becoming one of the only sensible members of the high nine in Austin—noted in her dissent in Williams, the upshot of the decision is that professional medical liability insurers will now be responsible for many claims that previously would have been handled by workers’ compensation or general liability insurers.  And what happens when an insurer has to handle whole new categories of claims, whether or not it becomes liable on them?  It takes on more risk and more defense costs.  And what happens when it takes on more risk?  It raises its rates to pay for that risk.  And what happens to those raised rates?  Well, they get passed on to the ultimate consumers of healthcare.  That’s simple economics.  And that flies in the face of the goals of the Medical Liability Act–to reduce the cost of medical liability insurance and thus drive down the cost of healthcare to Texans and make it more easily available.  (Recent statistics show that the Legislature is failing on that last one, too.)  And, apparently, it’s beyond the understanding of a majority of the Texas Supreme Court.

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Super Arguments

June 8th, 2012

Okay, this is the kind of stuff that makes me love being a lawyer.  Some people practice for the money; some do it for the prestige; some do it because they honestly are doing good things, great things even, that are so, so necessary for our system of justice.  But I’m shallow compared to them, and I admit it.  I just love the clever argument, and I love being the one to make it.  And that’s why I would have given up my Spiderman PJs to be the lawyer for Toy Biz, Inc., who came up with this gem.  And the connection to the superhero comics of my youth is just an added bonus.

It seems there’s a distinction between “toys” and “dolls” when it comes to import duties.  Let’s face it.  All these things are manufactured in China and shipped into the U.S.A.  When Toy Biz moved to import a bunch of “action figures” from the Marvel Comics universe—specifically, the X-Men, Spiderman, and the Fantastic Four—it was told that they’d be subject to the 12% ad valorem import tax rate on “dolls.”  This was as opposed to the 6.8% ad valorem duty on “toys.”  How did Toy Biz answer?

It argued that the “action figures” at issue “are properly classifiable as ‘Toys representing animals or other non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other.’”  In other words, they said the X-Men aren’t human.  Whatever your position on Mutant Rights, that argument is terrific.  And it won.

Of course, this leaves me thinking:  what is the fate of Iron Man (aka Tony Stark)?  It’s only the suit that makes him “super,” so does the Tony Stark (Iron Man suit) version get treated differently from the Tony Stark (Armani suit) version?  And really, he’s the same guy, either way.  So what happens?

Incidentally, if anyone wants to contact me about this . . . really, for whatever reason . . . my information is on this site.  Just sayin’.

 

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Forbidden Words

May 29th, 2012

Well here’s something to think about the next time you’re on Facebook.  The Department of Homeland Security has released (under duress, according to the Daily Mail) a list of keywords and phrases it uses to monitor social networking sites and online media for signs of terrorist or other threats against the U.S.  The list runs from “Al Qaeda” to “Los Zetas” with stops in-between at “chemical agent,” “ebola,” and “nuclear facility.”  Damn, there goes my next tweet.

But what does this mean for the average person?

Well, it means if you live in D.C., Atlanta, or San Francisco and you ride public transport, Big Brother is watching because WMATA, MARTA, and BART are all on the list.  Fans of heavy metal might want to reconsider their love for Anthrax, and shoppers might think about transferring their allegiances to J.C. Penney because Target has a black cloud over it.  (Speaking of which, the Weathermen of the 1960s and 1970s have got nothing on the reprobation doled out to the meterologically inclined by DHS.)  Don’t even think about going near El Paso, Yuma, Tucson, or Juarez.  Actually, just stay away from the border area, altogether.  You’ll be better off.

In the sports world, “ice” skating is out, but roller skating appears to be okay.  They should be able to re-vamp things in time for the Stanley Cup Finals.  Oh, and USC fans (and condom enthusiasts, I guess)?  “Trojan” is on the list, too.  So it’s time for a new mascot.

Even Jerry’s Kids aren’t immune.  (Okay, that was awful, I admit it.)  “MDA” also means “maritime domain awareness,” and that is most definitely on the list.  And don’t say those poor kids are “sick.”  Because that’s on the list, too.

It’s enough to make you want to stop speaking altogether.  But don’t do it.  Just be careful.  Relax.  Treat yourself to lunch.  (But not “pork” chops or sandwiches.)   And stay away from “social media” because we always knew that stuff was “toxic” anyway.

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Trust me, I’m a lawyer….

March 26th, 2012

You’d think that lawyers are the only people on Earth who don’t hear the phrase “Trust me, I’m a lawyer.”  But, in fact, we probably hear it more than most.  From whom, you ask?  Legal marketers.

Recently, I’ve been contacted several times by an outfit called Yodle.  Yodle performs marketing services for lawyers and others.  And, if what I’ve seen is so, it does it very badly.  Because Yodle takes a classic one-size-fits-all approach.  Now, understand that my own experience with Yodle is based on a discussion with one of its marketing representatives who kept insisting that I could get more personal injury cases and appellate cases through a Yodle website.  (Except that she couldn’t pronounce the word “appellate” properly.)  I’ll grant you that my website could probably do with some more traffic, but I’m also pretty convinced that anyone who would hire me strictly based on my website is probably not someone I want to work for.  Legal representation is personal representation.  The person who stands up in court and speaks for you is, for all intents and purposes, YOU.  So make sure he or she is someone you trust.

But the thing that really got me about Yodle’s whole hard-sell was that the salesperson—I won’t give her any other title (sorry to any salespeople reading)—was that she told me that she was a lawyer, so she understood my problems and concerns.  But how is it that she knew all those things without actually practicing law on a day-to-day basis?  How is it that she knew the stresses and strains of running a law practice?  And how is it that she knew the particular concerns of a small-firm (in my case, tiny firm) appellate practitioner?  Answer:  she didn’t.  She had no idea.  None whatsoever.

That’s where lawyers can get taken in as easily as anyone else.  When someone says he’s like you, you want to believe him.  When he says he knows where you’re coming from, you want to sign on.  But, if it’s just a sales pitch, you need to look deeper.  Ask questions.  Probe.  I turned Yodle down before I even realized that my good friend Mark Bennett had heavily slagged them on his own blog.  Had I done my research first, that’s a few minutes of my life I would have had back.  When someone says “trust me,” your first move should be distrust.  Trust is earned.  Not asked for.

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