Atlas Obscura fills in fuzzy history of title, 'esquire'

Squire (NYPL)

Atlas Obscura has an excellent piece on the title "Esquire" and its connection to the American legal profession.  The writer is L.A.-based freelancer Dan Nosowitz. He writes:

One of the weirder movements in modern American political action attempted to attack a title so vigorously that it would have essentially collapsed the entire history of the American government. The movement didn’t succeed, because it was both factually wrong and wildly misguided, but it was wrong in a really interesting way. It relied on the title "Esquire," which is one of the more common but most unusual ways a person can ask to be addressed.

The essay is Dan Nosowitz, What Does the Title "Esquire" Mean, Anyway?: And What Does it Have to Do with Lawyering?, Atlas Obscura, Feb. 3, 2021.

Plaintiff verdict upheld for IIED, hostile environment upon shocking attorney maltreatment of employee

The Massachusetts Appeals Court today upheld a verdict against a lawyer for shocking maltreatment of an employee.

mohamed_hassan (pixabay.com)

The employee, a Hispanic woman, was a clerical worker with responsibilities well into the paralegal vein.  She had worked in the attorney's office for about three years when she quit and sued for intentional infliction of emotional distress (IIED), hostile-work-environment sexual harassment, and constructive discharge.  Finding the defendant attorney liable, the jury awarded $20,000 on the IIED claim, $20,000 on the sexual harassment claim, and $150,000 in punitive damages.

Collaterally, plaintiff's husband was found liable in assault, for which defendant was awarded $1,000, and was held responsible for illegal wiretapping.

The Appeals Court affirmed plaintiff's verdict.  Application of law in the case was routine.  The court upheld the verdict as against defendant's erroneous assertions (1) that worker's compensation superseded IIED; (2) that the jury had doubled up on its calculation of damages; (3) that the jury was misinstructed on punitive damages; (4) that evidence of defendant's losses was improperly excluded; (5) that the evidence failed to support the jury's findings of causation and damages; and (6) that plaintiff evidence not produced in discovery was admitted at trial without sufficient remediation.

None of that is why I comment on the case here.  Rather, I want to republish the court's recitation of the facts, because they constitute a shocking portrait of a workplace that no person should have to endure for one day, much less three years.  Please keep in mind that the defendant here is a member of the bar.  And be warned that this text is not suitable for kids. 

Viewing the evidence with respect to the counts of the plaintiff's complaint for which the defendant was found liable, in the light most favorable to the plaintiff, the jury could have found as follows. The plaintiff was employed as a legal assistant at the law office of defendant, an attorney with a solo practice in Essex County. When she began working there in 2012, the plaintiff was the defendant's sole employee, but the defendant expanded his staff after hiring her.

The plaintiff's duties evolved over her years of working in the office, from answering the office telephones, handling the mail, and scheduling meetings, to working on interrogatories, doing legal research, and discussing client settlements. The plaintiff's desk was in the reception area of the office, across from the defendant's office. When the defendant was in the office, he worked directly with the plaintiff as her direct supervisor.

The plaintiff's complaint alleged, and the jury could have found, that over the course of several years the defendant made numerous comments and engaged in repeated behaviors that constituted tortious misconduct. This conduct occurred at the defendant's office, in the course of the plaintiff's employment. The defendant verbally attacked the plaintiff, calling her stupid and a moron. The plaintiff's coworkers testified that the defendant often belittled the plaintiff in the office, shouting uncontrollably at her and screaming in her face. When she tried to defend herself, he would yell at her to shut up and continue to scream at her. The defendant's screams could be heard even in offices on the floor above the defendant's office. When she was not present, and the defendant was angry with her, he would describe the plaintiff as a bitch, a slut, or a whore. He would also say she was crazy. There was a jar kept in the office into which the defendant would place money each time he called the plaintiff stupid.

Much of this misconduct related to the plaintiff's gender and race. The defendant told the plaintiff that men were intelligent while women were stupid; men were "superior" to women. He instructed the plaintiff to clean up after him in the office, including the mess left behind after his meals, because "that was women's work." The defendant also made comments about the plaintiff's and other female employees' appearances at work. He referred to one female employee as "Miss Dominican Republic." The defendant, at times without prior permission, photographed the plaintiff and her female coworker for the purpose of showing his friends "that I have nice girls here at the office." The plaintiff and another employee testified that the defendant would stand close behind the plaintiff while she was at her desk and look at her cleavage.  When she asked him to stop staring at her breasts, he responded that he could not help it and that she should wear other clothes to work. The plaintiff was also instructed to pick up condoms and lubricant for the defendant when she ran errands for him. The defendant would have the plaintiff go through his e-mails in the office, including pornographic advertisements; he once sent a pornographic e-mail to the plaintiff's daughter.

In explicit detail, the defendant would describe his sexual encounters to the plaintiff at the office.  The defendant described himself to the plaintiff as "always horny," asked her to comment on his girlfriend's breasts, and repeatedly described sex with his girlfriend to the plaintiff. He recounted a trip to the Dominican Republic in which he said his hotel room "came with [a] girl" and that "for $20 he got full service. Blow job and everything."  He described women in the Dominican Republic as "a bargain." He frequently bragged to the plaintiff of a trip to the Philippines in which he claimed he had sex with "cheap" young girls. When she asked him to stop, he ignored her or told her that she had to listen to this commentary because he paid her.

In speaking to the plaintiff, a Hispanic woman, the defendant made numerous racist remarks to her about African-American and Hispanic people. He would refer to his Hispanic clients as "drug dealers" and say that African-Americans were "stupid" and white people were superior. She testified that he used a number of racial slurs, referring to his Hispanic clients as "F-ing Spic[s]" and "calling [black] people n[word*]." When she asked him to stop making such comments, he disregarded her or told her to shut up and listen to him because he was her boss. The plaintiff testified that the defendant also made her sit with him and read his e-mails consisting of racist comments and "jokes" about black and Hispanic people. He often made fun of her accent and told her that her brown eyes were "dirty" compared to his "superior" blue eyes, which were "beautiful."

The plaintiff ultimately left the defendant's employ on October 22, 2015, after an incident with the defendant in the office. The defendant had been yelling at the plaintiff for failing to follow his instructions, and when she tried to explain what she had done, he repeatedly screamed at her to shut up. She informed the defendant that she was not feeling well and needed to go home, and the defendant told her, "Get the hell out of my office. Don't ever come back if you don't say sorry to me." The plaintiff left without the intention of returning, and her employment with the defendant ended.

....

After the plaintiff left the defendant's office, her husband went to the office himself to confront the defendant about his treatment of the plaintiff. After turning on his cell phone camera to record this encounter and placing the cell phone in his shirt pocket, the husband entered the office and moved toward the defendant, who was sitting at the front conference table talking on his cell phone. The husband sat down at the conference table near the defendant and told the defendant repeatedly to put his cell phone away.  The defendant and the plaintiff's husband began to argue at increasing volume about whether the defendant would put the cell phone away, and the husband told the defendant to listen to him. The defendant, feeling threatened, retreated to his office and closed the door, repeatedly telling the husband to leave. The husband opened the defendant's office door, and the defendant slammed it shut and called the police.

*All redactions in court opinion, except this one, which is mine.

These frightening facts embody the IIED rule of "utterly intolerable in a civilized society."  In our cancel culture, so replete with persons eager to be offended and to castigate their offenders with the force of law, we would be well advised to remember people who are truly and terribly victimized.  Watering down our civil rights law by giving eggshell plaintiffs ready access to administrative remedies, in disregard of the rights of respondents, is likely to result in over-corrective reforms that allow perpetrators of this despicable magnitude to escape accountability.

The case is Spagnuolo v. Holzberg, No. 19-P-778 (Mass. App. Ct. Oct. 21, 2020).  The opinion was authored by Justice Peter J. Rubin for a panel also comprising Justices Milkey and Massing.

Law students embrace bad lawyering

My colleague Amy Vaughn-Thomas gave a terrific assignment to students in her Professional Responsibility (Legal Ethics) class this summer:  Make a bad (unethical) lawyer ad, then write a paper about its faults under the rules of professional responsibility.

Students ran with the assignment, including the team that invented bad lawyer "Jeb Dundy."  From content producer Fatiga Mental (friend of the blog: Ig, Tw) and law students Noah Aurelio, Ricardo Serrano, Sebastian Garcia, and Samantha Tuthill, here is a lawyer for our times. See if you can spot the ethics issues.

Credits:

Suffice to say, the paper practically wrote itself.

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0

Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.

On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.

In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.

[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).

Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):

(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;

(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;

(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;

(D) to ask the jurors to put themselves in the position of any person involved in the case;

(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and

(F) to ask the jury to disregard the court's instructions.

Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Human life, human rights are the losers in unraveling Chevron-Ecuador litigation

Crude contaminates an open toxic pool in the the Ecuadorean Amazon
rainforest near Lago Agrio.  Photo by Caroline Bennett / Rainforest
Action Network, CC BY-NC 2.0.

[UPDATE, May 24, 2019: SDNY Judge Kaplan yesterday held Donziger in civil contempt.  Read more from Michael I. Krauss at Forbes.]
 
Court rulings are stacking up against the plaintiffs in the global Chevron-Ecuador litigation.  About a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP).  Plaintiffs’ appeals have fared poorly since Canadian courts rejected enforcement earlier in April (e.g., Reuters), piling on adverse outcomes in the United States, Brazil, and Argentina.

Now an opinion headline in Oakland News Now—if atop a column authored by a self-professed “influencer” who decidedly favors Chevron—trumpets that plaintiffs’ attorney “Steven Donziger, … Once The Toast Of Hollywood, Is Now Simply Toast.”  Notwithstanding that dry, I mean wry, assessment, it is true that Donziger was ordered in March 2018 to reimburse Chevron for more than $800,000 in legal fees as part of equitable relief in a private RICO action in the Second Circuit, and subsequently he was pressed to defend his bar license.  He maintains that he and his allies are being victimized in a political-hit orchestrated by Big Oil.

If you’re new to the Chevron-Ecuador case, beware the rabbit hole.  It’s almost impossible to summarize how we’ve come to this point in the course of a quarter century.  The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is still an excellent and objective port of entry (Amazon).  (My co-instructor/spouse and I plan to assign it in our comparative law class in the fall semester.)  You also can read about the case through the columns of George Mason Law Professor Michael I. Krauss at Forbes; he’s followed developments closely over the years.

In short, there was some awful pollution in remote oil fields in Ecuador, reckless extraction and vacant regulation in the 1970s and 1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences to human life and the environment.  That part is hardly in dispute.  What has been less clear and is hotly contested is whom should be blamed.

Enter the polarizing personality of Donziger, Harvard Law ’91, who, it must be said, is a genius for having designed a new model of global environmental litigation.  He solicited wealthy and famous, like, Sting famous, investors to raise money for the high costs of litigating against transnational Big Oil behemoths in an effort to tame them with the rule of domestic law.  At what point Donziger’s litigation lost the moral high ground—somewhere between the get-go and never—is the subject of much speculation.  However, that corruption was rampant in Ecuadorean courts is beyond dispute, and the role of the lawyer when justice might require, say, cash prepayment of a new “court fee,” raises some thorny questions in ethics and cultural relativism.  What is for sure is that when you start talking about Big Oil as occupying the moral high ground, something already has gone terribly wrong.

One can only make an informed guess about where liability for Lago Agrio should land.  Texaco/Chevron probably bears a slice of moral, if not legal, responsibility, at least in a strict-liability, “Superfund” sense.  But through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy assumption of responsibility, and their own recklessness practices, the state of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly enriched and probably bear principal responsibility for the disaster, morally and legally.  Arguable then is how thoroughly moral responsibility should flow back to the industrialized world along the pipeline of oil demand; I won’t step into those inky depths.

Donziger and the Ecuador litigation is a capstone course for law school, so I’m not here to state a thorough explication.  I mention the case because it strikes me that it exemplifies two serious problems in contemporary tort law, intersecting on this unusual tangent.

The first problem is that both state actors and transnational corporations operate above domestic law and without accountability to private claimants in international law, and that portends a disastrous end to life on earth.  What ought not be forgotten about the Chevron-Ecuador legal fiasco is that underneath all of the legal finger-pointing, there remains an unmitigated environmental catastrophe.  And what’s worse, it’s ongoing.  Ecuadorean operations in the area still use reckless extraction processes such as unlined oil pits, and Big Oil is bidding to reclaim a piece of the action.  People are still being poisoned, and the Amazon is still being polluted.

Meanwhile, follow the oil downstream, and Hasan Minhaj will show you (embedded below) how Brazil is newly doubling down on rain forest destruction.  I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers kind of destruction that was the stuff of my childhood nightmares in the dark age before we recycled.  Human civilization and our rule of law on earth have not yet figured a way to attack this problem on the international level, much less to protect the human rights of local citizens within an offending country.  Our own alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by the way—and it’s not clear that the law’s landmark 1980 application in Filártiga v. Peña-Irala, bringing a foreign state torturer to justice, would even be upheld in federal court today.

The second problem is that in places where we do observe the rule of law, namely, here in the United States, legal transaction costs have spiraled so high that our courts have become available only as playgrounds for the rich and powerful, whether to settle disputes among themselves, subsidized by us, or to quash the claims that we, the little people, might dare to file in our puny arrogance.  We know this problem on the mundane, ground level as “access to justice.”  I suggest that this is the same problem that Donziger—giving him the benefit of the doubt at the get-go, for the moment, assuming reasonably that his multitude of motives must at least have included compassion for victims of pollution among the world’s poorest people—was up against in trying to take on Big Oil.  Documents in the RICO case contain tidbits about Donziger’s financing, such as a rock star’s “two equity positions in the case, one for 0.076 percent and 0.025 percent.”  It turns my stomach to read about human rights litigation as an investment opportunity, perhaps ripe for an initial public offering.  (“Call now for your free report; first time callers can get a free tenth-ounce Silver Walking Liberty Coin!”)  If that’s how we’re setting legal norms around human rights and deterring threats to human life, then that says more about us than it does about Steven Donziger.

These are the days that I want to give up on the human experiment and hunker down in willful ignorance to marshal my resources and plan for a contented retirement.

Though I’m a little short on resources.  Can I still buy shares in that Roundup litigation?

UMass Law Review hosts vibrant media law symposium

Today, as advertised, the UMass Law Review hosted a symposium on media law. The program videos are all on Facebook Live.  Check my Twitter feed for hot links to speakers' handles.  Three panels were organized by media "platform," from politics to digital to entertainment, raising issues from the investigative journalism to data breach law to streaming music copyright.  The program concluded with a keynote address by Richard P. Flaggert, a DLA Piper media attorney.  Here are some highlights:

After a thoughtful welcome by UMass Law Dean Eric Mitnick, UMass Law Professor Jeremiah Ho started the program with a discussion of why media matter.  The problem of law and policy, he said, is the gulf between "what matters" and "what excites us," with the media business model tending to cater to the latter.  Professor Ho is a co-adviser of the UMass Law Review.

  

Kicking off the first panel of the day, Rep. Christopher Markey, New Bedford, Mass., attorney, Commonwealth legislator, and UMass Law alumnus, gave the political perspective.  Money has distorted news from being an educational tool to being entertainment, he explained.  People must be media literate to elicit truth from what they see, hear, and read.  Recalling his years as a district attorney, Markey said that attorneys and judges were "better" when a beat reporter was sitting in the courtroom, that journalism "makes government better."  But those beat reporters are no longer there.

Jillian Fennimore provided her perspective from inside the busy office of Massachusetts Attorney General Maura Healey.  A journalism graduate of the University of New Hampshire with many years experience in media, Fennimore explained the challenge of making the work of the state's law office intelligible and meaningful to citizens, whether the subject matter is investigation of the opioid crisis, antitrust enforcement, or protection of a consumer whose vacuum cleaner broke.  AG Healey cares about all of these things because she understands that these are things people care about, Fennimore said.  My Torts II class has been looking at the impact of the Healey opioid investigation on the crisis and litigation nationwide.

Peter Ubertaccio, a dean and political scientist at Stonehill College, gave an academic perspective on news and media law.  Those of us of a certain age remember the local TV news anchors of our youth, he observed.  That is not true for our children.  Journalism today is "atomized," lacking the "rhythm" of television before the information age, even if the internet is "democratiz[ing]."  There is more content available through more conduits than ever before, Ubertaccio explained, yet there is less availability of accurate information.  We are entering a golden age of television entertainment while at the same time entering a dark age of information, he said.  Incidentally, yes, I remember my anchors.  And I was privileged to have worked with Baltimore's great Al Sanders for a short time before he passed away.

A star of the first panel was Dee DeQuattro, UMass Law alumna, staff attorney for Operation Stand Down Rhode Island, and creator of the Boots on the Ground Heroes Memorial.  DeQuattro talked about her experiences in radio and television, most recently as an assignment manager for ABC6 News in Providence, Rhode Island, then her transition to a public relations and later legal capacity for the veterans organization, Operation Stand Down.  DeQuattro went to journalism school to hold power accountable in the tradition of Woodward and Bernstein, she said.  But "news doesn't work that way anymore," as bottom-line focused detracted from serious political reporting.  After covering the Boston Marathon bombing, she went to law school.  She still uses her familiarity with news media, driven by money savings and visual imagery, to manage public affairs in her nonprofit work.

Law Review co-adviser Professor Dwight Duncan moderated the second panel, on digital media.  Professor Andrew Beckerman-Rodau of Suffolk Law School and the Intellectual Property Center opened with a comprehensive overview of data protection, including data breach and Big Data analytics, in American law today.

Attorney Hollie Lussier of Bristol County Savings Bank told the audience about the large role data protection and privacy play in legal practice today, especially in the financial sector.  She warned attorneys to consider insurance liability limits, as $100,000, she said, won't cut it.  She cited a recent case of a "small" data breach that nevertheless generated a $140 million loss.  The breach could have been prevented, she said, with a $10,000 "penetration test."  Making matters more hazardous, she explained, many insurance policies will not cover consequential damages, which make up most of that mega-million loss.

Rhode Island attorney and legislator Stephen Ucci concurred on the importance of data protection to contemporary practice.  He referenced a recent in case in which only 300 records were exposed.  Despite seemingly straightforward facts, the exposure of data has different implications for each data subject, he explained; moreover, breach across state borders implicates the laws of 50 states as well as federal laws, such as the Gramm–Leach–Bliley Act.  The complexity of even a small case is thus multiplied.  Ucci discussed the data breach legislation adopted by Rhode Island in 2015 and plans to beef up education and implementation in the near future.

UMass Law Professor Dustin Marlan moderated the third panel, on the subject of entertainment law.  Attorney and educator Richard Kent Berger started off the afternoon program talking about music copyright.  He explained the significance of the Music Modernization Act of 2018 and related legislation and pending proposals.  Royalties are now owed for digital streaming, and some pre-1972 musical works that had lost copyright protection have had their authors' royalty rights restored.  The law also revamped the approach to orphan works and afford them greater protection against loss of copyright.  Previously large content providers such as Google's YouTube were able to use a notice process on a massive scale to shake potentially orphaned works free of their copyright protection.

Seattle University Law Professor Bryan Adamson, a mass media scholar, talked about the importance of framing in media, especially in news reporting, and especially in coverage of protest movements. Media frames tend to perpetuate social stability, he explained, and as a result, tend to perpetuate racial hegemony.  The portrayals viewers see might not fairly represent the facts, and, as a result, he said, rather than contributing to the public dialog, media narratives might "derail" meaningful discussion of sensitive topics such as race and social and economic equality.

Rhode Island attorney Richard E. Kühn talked about the importance of social media to attorneys.  Social media are part of contemporary legal practice across the board, he explained, touching on areas including lawyer advertising, client counseling, evidentiary investigation and spoliation, and trial practice and voir dire.  He recited recent case rulings demonstrating that failure to take social media into account, for example in evidentiary investigation, may result in a finding of legal malpractice.

DLA Piper attorney Richard P. Flaggert (not speaking on behalf of clients or the firm) gave the keynote address of the symposium, discussing contemporary media law practice.  Flaggert, who is licensed in California, Massachusetts, and England and Wales, started off by reminding that Shakespeare's "kill all the lawyers" lines was an admonition against unethical or incompetent practice, not actually an indictment of the professional.

He then spoke about two key doctrinal developments in media law practice.  First, he discussed the potential impact on free speech and commerce of the newly adopted EU Copyright Directive, in particular the article 11 "link tax" and the article 13 "upload filter measure."  Both threaten a chilling effect, he explained.  The former purports to give copyright protection to even a "snippet"—the actual word, undefined in the law—of content, putting at risk a range of content from Google news aggregation to "your blog."  Meanwhile article 13 imposes the burden of protecting against copyright infringement on ISPs, abandoning reliance on the notice-and-takedown approach of the U.S. Digital Millennium Copyright Act.  As a result, even "your blog" content might be tied up for weeks or longer as ISPs mull over whether you have violated copyright, likely prompting prophylactic censorship.  I note: not unlike Europe's approach to the right to be forgotten, now miring Google in a new administrative bureaucracy, not to mention the risk of Goliath gate-keeping under non-transparent private-sector control.  

Second, Flaggert talked about the problem of copyright and live fan captures of sporting events and the like.  As technology improves and recording devices become harder to detect and control, event providers such as sporting authorities will have a more difficult time policing the difference between the odd fan photo and the HD-streaming pirate.  The French solution has been to regulate, Flaggert explained, giving near absolute control to providers, a strategy of obviously problematic dimension.  Meanwhile in the United States, no body of intellectual property law, such as federal copyright or state common law, seems up to addressing the problem.  Event providers are confounded at the choice between loss of control of their intellectual property and alienation of their fan base with its abiding affection for social media.  Meanwhile the problem poses a threat to our fine-line precedents and the delicate balance between INS v. AP IP rights and the "hot news" doctrine, which has kept the peace for decades.

The village idiot moderated the first panel. Here
he is about to laugh at one of his own bad jokes.

Once a lawyer who represented ESPN before it ceded its design to bring Premier League coverage to America, I asked Flaggert 1:1 whether NBC, with its unsatisfying and impossibly expensive array of cannibalized Premiere League coverage for U.S. viewers, intends to be destroying soccer in America, or is just doing so indifferently.  He shared his frustration with access to Liverpool matches.  I'm not sure why one would necessarily want to see Liverpool, unless they were playing directly against ManC.  But I appreciate his empathy.

A big congratulations to the UMass Law Review, especially editor Casey Shannon, for executing a superb symposium, with my sincere thanks for bringing these talents to our campus.

Who Dat lawsuit for 'negligence,' 'emotional anguish' is really a desperate mandamus plea

Controverted play in Rams vs. Saints conference championship game
(NFL image via GMA and Daily Show: fair use).

Full disclosure: I'm not a football (NFL) fan—rather a football (association) follower—but if I were, I would have a soft spot for the Saints, because I love New Orleans and married into a proud Louisiana family.

So it caught my attention when Roy Wood Jr. on The Daily Show with Trevor Noah (Comedy Central, YouTube) asked whether in fact the "Saints Were Robbed," and then quoted from a lawsuit against Roger Goodell and the NFL claiming negligence and "emotional anguish."  I'm always intrigued by the scent of negligent infliction of emotional distress, which is a kind of chimera in American tort law.

The lawsuit, which can be downloaded from its attorney-author's website and was first reported by WDSU, is really a petition for mandamus, not a tort suit.  It does allege negligence on the part of Goodell and the NFL and asserts that they have the power under NFL rules to remedy the bad call of the Saints-Rams game.  As Roy Wood Jr. observed on The Daily Show, the petition dramatically alleges "emotional anguish" and "loss of enjoyment of life" by Saints fans.  It does not, however, assert any legal basis to order Goodell or the NFL to comply with their own rule book, even if that is what they would be doing by replaying all or part of the game.

On an SB Nation blog, an L.A. attorney and confessed Rams fan fairly if spitefully described the Who Dat petition as "one of the most frivolous lawsuits to be filed. Ever." Of course, Americans have a long tradition of working out sport frustrations in litigation—that I'm today a soccer fan is evidence of the struggle—so maybe professionalism should allow some latitude for that.

Lawyers, read carefully: 'Presentment' held defective under state tort claims act

Flickr photo by bradlee9119 per Creative Commons license

A cautionary tale from the Massachusetts Appeals Court yesterday, per Justice Peter Sacks, reminds lawyers to read statutes carefully.


Plaintiff was among five persons (perhaps family, based on the names of four) injured in a Massachusetts Bay Transportation Authority (MBTA) bus accident.  Her lawyer filed a claim with the "MBTA Claims Department," the transmittal asking that the claim be referred to the appropriate authority.  The MBTA made settlement offers to the five, and only Plaintiff turned down the offer and opted to pursue litigation instead.

The Massachusetts Tort Claims Act requires presentment of a claim to the "executive officer" of the defendant state entity.  The trial court let the difference slide under a statutory exception allowing for correction of defective presentment upon the executive officer's actual knowledge of the claim.

The appeals court reversed, ruling that the exception must be construed narrowly.  Neither the attorney's request to forward nor logical inference was sufficient.  The court awarded the MBTA summary judgment.

The court acknowledged that the ruling is "a harsh result," especially considering that it probably mattered not at all to the MBTA claims process whether its executive received notice.

The case is Coren-Hall v. MBTA, No. 16-P-300 (Mass. App. Ct. Feb. 23, 2017), here at Mass.gov, here at Mass. Lawyers Weekly, and here at Justia.

[UPDATE, Dec. 17, 2018: In a December 2018 negligence case against the MBTA under the state tort claims act, the Supreme Judicial Court affirmed "that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity." The case is Theisz v. MBTA, No. SJC-12559 (Mass. Dec. 12, 2018).]