What Were They Thinking

The Laugh Test

September 22, 2008

[Update: decision denying Blockshopper’s Motion to Dismiss] [Update: Jones Days’ Opposition to Blockshopper’s Motion to Dismiss] Blockshopper.com is one of many small web sites that have sprung up to follow local residential real estate markets. So far, the site highlights purchases in upscale neighborhoods in Chicago, St. Louis, South Florida and Las Vegas. The site identifies purchasers by name, street address of the property and the price paid. Of course, this information is available in local real estate publications (like Banker & Tradesman here in Boston) or at the local registry of deeds. Blockshopper also performs an Internet search on the person, and based on what it finds identifies the purchaser’s job title and employer. When it can, the site pulls a photo of the person from somewhere on the Internet (like the purchaser’s company site), and pastes it into the item. If the home purchaser has an online bio, the site will link to it. Example: I saw on Blockshopper that Juan Luis Goujon had recently purchased a property in Chicago. I Googled “Juan Luis Goujon,” and the first hit I got was to Blockshopper, profiling the property, linking to Mr. Goujon’s company, and posting a photo of him from the site. Mr. Goujon is not a celebrity or a politician, and he may not be thrilled with this publicity (if anyone truly cares). However, the information regarding the…

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Thoughts on the Art of Persuasion and the Defense in the Entwistle Case

June 30, 2008

Some thoughts on the recently concluded Entwistle murder trial in Massachusetts. A trial is the art of persuasion. Civil or criminal, jury or jury-waived, the same principles of persuasion apply. Generations of lawyers have spent their careers thinking about these principles, trying to understand, refine and apply them. The huge number of uncontrollable variables in a courtroom make trial persuasion an art rather than a science, but as in all competitive activities, even small advantages can increase your odds, so lawyers keep studying and trying. Some of the most basic principles of trial advocacy are well accepted by now. One of these is captured by the expression: “tell them what you’re going to tell them, tell it to them, and them tell them what you told them.” In a trial, this rule of advocacy applies most importantly to what lawyers call the “theory of the case.” Every experienced lawyer knows the persuasive importance of “primacy” (the first things the jury hears) and “recency” (the last things they hear). Simply put, people tend to remember the first and last things they hear better than the stuff in the middle. The principle of “primacy” is so important that many studies have found that jurors are inordinately influenced by the opening statement in a trial, and therefore most lawyers put particular effort into crafting their openings. Some jurors pay little attention to anything…

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Are Judges Intuitive or Analytical? Ruminations on the Cognitive Style of Judges

June 3, 2008

The best aspect of law school is the subordination of math. Anon _________________________ Are judges good at math? Foolish question, of course. Since many lawyers have a math phobia, it follows that many judges would, as well. Nevertheless, a group of academics gave a three-question quiz to a group of several hundred trial judges. The purpose of the quiz was to determine whether the judges’ style of cognitive reflection, as a group, was “intuitive” (i.e., bad) or “analytical (i.e. “good”) decision makers. Here are the three questions. Each one is designed to have you “jump” to a quick, intuitive wrong answer, whereas analytical reflection will lead to the non-obvious right answer. (1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____cents (2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____minutes (3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____days. Not surprisingly, the judges failed miserably. 31% got all three questions wrong, and only 15% got all three right. Yes, for the most part…

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Dummies Guide to Understanding Subprime Mortgages

May 27, 2008

A lot of people are having a hard time understanding how the country got into the sub-prime mortgage mess, or even exactly what a “sub-prime mortgage” is. How could so many intelligent, responsible people in housing, banking, finance and government have gotten this so wrong? If you’re are one of these people, this skit may aid your understanding. Oh, and fans of the Wiley Publishing “Dummies” series, I have nothing to do with them at all. In fact, I’m a big fan. | View | Upload your own

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Judge Young Pulls No Punches When it Comes to Mandatory Sentencing

May 19, 2008

You may recall the brouhaha that arose last year when a Massachusetts state district court judge vacated a prior state court conviction in order to mitigate the impact that the conviction would have on the defendant under the federal sentencing guidelines in an upcoming sentencing in federal court. The defendant, Matthew West, was due to be sentenced in federal court by Judge Young later the same day. Under the federal sentencing guidelines, the existence or non-existence of a prior conviction made a huge difference in how much time West would be required to serve under the guidelines. Hence the urgency (on the part of West) in getting the earlier conviction vacated so it wouldn’t be counted against him. The whole bizarre story is described here. You may recall that after that story broke the judge was the subject of massive public criticism (think talk radio, Boston Herald). She ended up in the emergency room with chest pains, and upon recovering she changed her mind and reinstated the conviction. Wow. Being a judge in Massachusett is very stressful. (For another example of just how stressful, click here). Now Massachusetts Federal District Court Judge William Young has used his sentencing memorandum in the Matthew West case to expound his views on the legislative and judicial history behind the guidelines. This 35 page memorandum, available here, is a brilliant, exhaustively researched and opinionated…

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After Ten Years of Proceedings, Final Decisions of Disbarment from SJC in the Demoulas Ethics Cases

February 6, 2008

I have written several times about the disciplinary proceedings against several attorneys who represented the losing party in the Demoulas cases. (see here, here and here). As I described in the first of these blog entries: The saga of how Gary Crossen (then of Foley, Hoag & Eliot and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, a former Massachusetts Assistant Attorney General, lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction. After years of hearings and delays Bar Counsel issued her decision recommending the “ultimate sanction,” disbarment of all three attorneys. Her decision is now working its way through the Board of Bar Overseers and will ultimately be in the hands of a single Justice of the State Supreme Judicial Court. The consensus in the community appears to be that bar counsel’s decision will be followed. Bar Counsel’s recommendation of disbarment…

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Ray Niro Offers $5,000 for Identity of Author of "Troll Tracker" Blog

December 6, 2007

It appears that infamous Chicago patent attorney Ray Niro has offered $5,000 for anyone who will identify the author of the Patent Troll Tracker, which Niro apparently believes has made uncharitable comments about him. The anonymous author of the Patent Troll Tracker blog takes this in good humor, describing the offer as a “bounty” and stating: I have never had a bounty on my head before (see also blog post here). And I can’t imagine why Ray Niro would pay $5,000 to find out who I am. I emailed him to find out (from the corner internet cafe, heh). He didn’t respond. Ray: if you up it to $50,000, can I collect the reward? . . . Yes, Ray Niro has decided to offer $5,000 to find out who I am. According to the article, he wants to know “who is saying all those nasty things” about him. . . . PS To my very few friends, family, and colleagues in the know, if you’re reading this, please don’t call Niro and collect the bounty. That would be tacky. OK, thanks. Wow, who knew patent law could be so interesting? More on this controversy (huh?) here.

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Oral Argument in the Demoulas Ethics Case

November 21, 2007

This falls squarely under the “what were they thinking” category. I’ve written about the attorney discipline proceedings in the Demoulas case here and here. Oral argument before the Massachusetts Supreme Judicial Court took place on October 4, 2007. These arguments may be viewed in full here (Crossen) and here (Curry). When the SJC issues its rulings on these two appeals, the door will finally close on this scandal, ten years after it first opened. The Justices’ questioning of the attorneys for Messrs. Crossen and Curry was surprisingly gentle, and their questioning of the BBO’s attorney quite aggresive. If I were in Crossen or Curry’s shoes, I would be cautiously optimistic following this hearing.

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Demoulas Disbarments

November 3, 2006

Two updates: First, I learned today (12/11/06) that the hearing officer in this case, Ellen Carpenter, tragically passed away at the age of 52. Second, Boston Magazine alerted me to an article discussing the Demoulas/Law Clerk scandal. If you want a quick summary of the case, Boston Magazine-style, click here for The Demoulas Trap: Secret tape recordings. Clandestine meetings. Fake identities. Nothing was off-limits when supermarket tycoon Telemachus Demoulas’s desperate legal team hatched its plan to squeeze Paul Walsh. A billion dollars was at stake in the nastiest civil court case in state history, and the lowly court clerk was an easy mark. Until he decided to fight back. __________________________________________ On October 16, 2006, the Massachusetts Board of Bar Overseers issued its long-awaited decision in the Demoulas attorney misconduct case, essentially affirming the hearing officer (Ellen Carpenter) in her decision recommending disbarment of three Massachusetts lawyers. The BBO accepted the recommendation of the hearing officer and ordered the disbarment of two of the attorneys (Gary Crossen and Kevin Curry), and ordered that the third attorney, Richard Donahue, be suspended for three years. The three attorneys now have one more shot at vindication, before the Supreme Judicial Court. Don’t hold your breath. I discussed this matter in some detail a six months ago in one of my first “what were they thinking” blogs. I quote from the final paragraph of the…

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Recent Cases (or, Lawyers Behaving Badly)

October 25, 2006

Don’t get me wrong, I have nothing, nothing, against leasing companies. But it seems that some people do, so it grabs my attention when a leasing company sues for breach of a lease and not only loses its case but gets hit with a counterclaim that results in a judgment for violation of M.G.L. c. 93A (the Massachusetts “unfair and deceptive acts and practices” statute). This was the outcome in General Electric Capital v. MHPG, Inc. Following default on the lease GE sued not only its lessee, MHPG, but (since MHPG was insolvent), the next best thing, the company’s stockholders and directors. After all, you’ve got to go where the money is, right? After Massachusetts Superior Court Judge Ernest B. Murphy (no stranger to controversy himself) rejected GE’s attempt to “pierce the corporate veil” he ruled that GE’s suit against the shareholders/directors was a violation of c. 93A (the Massachusetts statute prohibiting “unfair or deceptive acts or practices”). To quote: As the case progressed . . . GE learned there was no personal guaranty from either of the [directors] and that both had left MHPG almost two years prior to the default under the lease. Even after having been alerted to the absence of any personal guarantees, GE . . . vigorously prosecuted the case against [the directors]. This Court finds this continued litigation inexcusable, and well parametrized within a…

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Class Action Crazies Attack Wal-Mart

September 22, 2006

What were they thinking? David Fish at Collins Law, passed on this case: Acree et al v. Wal-Mart Stores, Inc. (Complaint in pdf format) This class action lawsuit alleges that Wal-Mart claims that music CDs it sells do not contain explicit language when in fact some of them do. Quoting from the suit: Wal-Mart violated its practice and policy by allowing CDs to be sold that contained explicit content but that did not contain an ‘explicit content’ or ‘parental advisory’ warning label. This worked to dupe the very consumers who have come to trust and rely on Wal-Mart as a ‘family friendly’ store. The case was filed in state court in Chicago. Too bad the plaintiffs didn’t file it in PRC, Massachusetts. That would have led to some amusing courtroom scenes. I’ll let you draw your own conclusions on the merits of this one, but I’m confident that the attorneys who filed this suit have the best interests of the injured class in mind and do not, I repeat do not, have attorney’s fees in mind.

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"Hideous Company Sends Boing-Boing Pre-Emptive Nastygram"

August 7, 2006

One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it). Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as YouTube.com, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting. However, the owners of the World Cup broadcast rights must give notice after the…

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