US Open for Lawyers. Last time, I linked to a personal injury law firm’s Battle of Television’s Greatest Lawyers. The competition has been fierce, and beginning next week, two finalists will face off for the honored title of greatest TV attorney. From the looks of it, the battle will come down to Cosby’s Clair Huxtable vs. Will and Grace’s Will Truman. If past match ups are any indication, I’d say Huxtable has an edge. She sailed past Ally McBeal in the first round and is currently dominating Ben Matlock with 78% of the vote in the semis. Truman also had an easy first round against Bob Hunter (Desperate Housewives), but is currently in a close race with Law and Order’s Jack McCoy. It promises to be a close call right to the finish.

Edward Would Have. As usual, some of the funniest items this week aren’t even made up. Over at Lowering the Bar, Kevin Underhill highlights some hilarious real law suits, including a (rejected) push-up contest settlement offer between werewolf actor Taylor Lautner and an RV dealer. The Twilight star sued the dealer for neglecting to deliver his RV to the movie set on time, claiming the mix up cost him up to $3,000 per week. In response, the dealer challenged Lautner to a push up contest. The Lautner camp rejected the offer immediately, but Underhill wishes they hadn’t. “The push-up contest was simply a ‘facetious suggestion,’ [Lautner's lawyer] said, and maybe it was, but it is also a awesome suggestion and seems to me like a perfectly good way to settle a lawsuit. The parties can agree to whatever they want, it seems to me, so why not throw down, werewolf?”

Running the Table. I’m sure this next item, from the blawg Legal Juice, is relevant to many holiday weekend plans. In a real lawsuit, the plaintiff’s attorney asked the defense to “describe how ‘beer pong’ is played, including the needed equipment and/or materials.” The plaintiff’s attorney responded that the request was “overly broad [and] unduly burdensome” since “the term ‘beer pong’ appears to refer or relate to at least two different activities, each of which require different equipment and/or materials, and both of which are subject to substantially varying ‘house rules.’” The attorney then attached a lengthy description of the popular college party game from Wikipedia, complete with images, strategies, and variations.

Have a wonderful weekend — and remember to drive safe!

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So before you start hiking, wake boarding, and BBQing, remember that Labor Day weekend is a notoriously dangerous time for traffic accidents and drunk driving related fatalities. And as if you needed more reasons not to drink and drive, the Governors Highway Safety Association has launched a nationwide campaign to crack down on drunk drivers this weekend. In California, this means the addition of more than 200 DUI checkpoints with the cooperation of 450 government agencies.

Fortunately, the number of people killed and injured in alcohol related accidents over Labor Day weekend has subsided in recent years here in California. In 2008, for example, there were 381 drunk driving injuries, 13.6 percent lower than 2007′s total of 441 according to the California Statewide Integrated Traffic Records System. Overall, the state’s Labor Day car accident deaths in 2008 (47) was 14.5 percent lower than 2007 (55). Regardless, there’s much more room for improvement.

“The most recent data available shows encouraging news about the safety of California’s roadways during Labor Day weekend with decreases in accidents and vehicular fatalities,” said GJEL managing partner Andy Gillin in a statement this week. “Regardless of the statistics, however, no driver can be complacent during road trips. I encourage everyone to stay safe, be aware, and avoid distractions this weekend.”

Have a great time this Labor Day weekend. And remember not to drive if you’ve been drinking under any circumstances. And due to the increased number of drivers on the road this weekend, take along some of GJEL’s accident resources, including our Accident Checklist, in case you have the misfortune of experiencing a car accident.

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Three years ago, Davis was sanctioned by the Florida State Bar for failing to pay child support and obstructing the court’s disciplinary process. Avvo’s editorial team reflected these convictions by placing a “3.7 Caution” warning on Davis’ Avvo profile, leading the embattled attorney to seek $15,000 in punitive damages from the company for “publishing false and misleading information regarding attorneys” and damaging Davis’ reputation.

Davis’ complaint appears bogus for a few important reasons. First, he was, in fact, sanctioned by the Florida State Bar, so their assessment was hardly false or misleading. Thus, asking the judge to censor this information would amount to little more than a violation of the company’s free speech protection.

CEO Mark Britton summed up the company’s position in a press release yesterday:

“We will not be bullied into censoring important information. Our mission, since day one, has been to provide more information and better guidance for consumers seeking help with legal matters. We are well known for being the only website to offer both high *and* low editorial ratings in our Avvo Rating for attorneys. The reality is that not every lawyer has a perfect background,” said Mark Britton, Founder and CEO of Avvo. “By publishing sanction information in particular, we are shining a flashlight in some very dark corners of the legal industry, and some are not going to like that. But consumers want this level of transparency and, as already decided in the Federal courts, Avvo and similar rating systems enjoy First Amendment protection in giving consumers what they want and deserve.”

This is far from the first time Avvo has been threatened by a sanctioned lawyer. In fact, only nine days after the site launched in 2007, sanctioned Seattle lawyer John Henry Browne sued on similar grounds. Before long, the case was dismissed by a Seattle district court which upheld Avvo’s right to publish true information about attorneys under freedom of speech.

Here’s to hoping the Florida court does the same, so Avvo can get back to what it does best: innovating the web space for lawyers and legal consumers alike.

This week, the New York Times joined team lawyer basher, penning an editorial on the importance of oil spill victims getting a fair day in trial. But the editorial predicts, “we probably cannot expect the lawyers to act responsibly. We do expect better of the politicians.”

As Eric Turkewtiz writes at the New York Personal Injury Law Blog, “no one ever lost a nickel by bashing lawyers, because when we defend ourselves we sound like, well, lawyers.” Turkewitz points out that the Times’ suggestion here is that since Kenneth Feinberg, the respected government bureaucrat responsible for disbursing funds to 9/11 victims, is in charge, victims don’t need lawyers to help them navigate the government’s $20 billion escrow account.

He then explains why this is such a bad idea:

Does the Times seems to suggest that Feinberg will simply pay claims without the expert analysis that’s needed in the evaluations? Will the claims simply leap off the table and magically prove themselves to Feinberg without effort?

In one sense, this is like a trial on damages only, with liability already established. But you still must prove those damages to the finder of fact. Perhaps many of the claims are simple. Most assuredly, many are not. Only a fool would walk into the forum unarmed.

I’m also intrigued by the editorial’s claim that politicians can be better trusted to ensure that victims get a fair day in court, despite the fact that half of Congress has been reluctant to blame the British oil giant and has pushed against raising the liability limit for corporate wrongdoing.

Lawyer bashing aside, the most important thing here is that the victims of the spill are compensated fairly for their economic and physical injuries. And one thing the Times got right is that Feinberg is the best person to help make that happen.

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This was the experience of Sandra Boodman, who in a special report for the Washington Post reported this month on her father’s anger at having his driving skills questioned after more than sixty years driving with no serious accidents or traffic violations. The reason for this is simple. “People are living with a level of impairment that is unprecedented,” said Elin Schold-Davis, head of the American Occupational Therapy Association. “And these days driving is more complicated. There’s more congestion, more complicated signs and traffic patterns.”

Here at GJEL, we’re very focused on new techniques to make teenagers safer behind the wheel. That’s why we’re also interested in the decline of vision and motor skills that could harm driving ability when drivers get older. Take a look at our new resource “Seniority Behind the Wheel: Managing Safety Risks for Older Drivers,” which details the physical and mental dangers of driving in old age, current laws regulating older drivers in each state, and potential alternatives to operating personal vehicles.

The statistics back up the need for increased awareness about old driving risks. In California, drivers over 60 are the second most dangerous demographic, behind only drivers under 22. Each year, the number of injuries and fatalities for drivers at each age under 22 remains constant at between 5,000 and 6,000 in California alone. The number drops significantly after 25 until age 60, when it jumps back up to 5,100 injuries and deaths per year.

And as the baby boom generation ages, the number of drivers over 60 will only increase. The US Census Bureau predicted in 2007 that there would be 9.6 million drivers over 85 in 2030, a nearly 75 percent increase from today. Other safety analysts have said that by this time, drivers over 65 will be responsible for a quarter of all road accidents.

Clearly, not all drivers over 60 are a risk. In fact, many are safer than drivers of other ages because they take fewer risks and aren’t likely to speed. But current regulations to old driving have already been successful. The Insurance Institute reported earlier this year that accidents for drivers over 70 have declined 70 percent from 1997 to 2008, after restrictions began in many states.

So although it’s a difficult conversation to have with your parents our spouse, getting them off the road once their physical and mental ability begins to fade could keep them around a few more years. See our resource for older drivers for tips about how to have the conversation, and potential alternatives to help maintain the freedom associated with driving. And email us at benb [at] gjel [dot] com with any stories of your experiences helping a friend or loved one manage the risks of driving at an older age.

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The facts show that both speeding and distracted driving are major safety issues that should be addressed. According to the NHTSA, more than 11,000 people are killed each year in speeding related accidents and 2,500 were killed due to traffic light confusion. Distracted driving, which has become a major issue for Transportation Secretary Ray LaHood, causes more than 6,000 fatalities each year and has become the number one killer of teenagers.

“Safety is the Department of Transportation’s number one priority,” said NHTSA spokeswoman Olivia Alair. “We are going to continue…making sure cars and trucks are safe to drive, and doing whatever else is necessary to keep Americans safe behind the wheel.”

The IIHS is correct that the public generally sensationalizes distracted driving and unintended acceleration while accidents caused by speeding and running red lights “fail to attract the same degree of public interest or concern.” Part of the reason for this is that, in addition to causing thousands of deaths each year, distracted driving can only be expected to increase as we see more technological advances. But the IIHS errs in suggesting that efforts to curb distracted driving will be fruitless. In fact, many experts predict that the dangerous practice will become as taboo as drunk driving or not wearing a seat belt.

The IIHS’ main flaw in its NHTSA criticism is the assumption that NHTSA and the public cannot act to decrease distracted driving deaths and speeding related fatalities simultaneously. If the public will to save lives is present, both issues can be combated effectively. But it serve as the needed reminder that we should focus more on traditional sources of highway accidents like speeding and running red lights. in both our daily routines and our laws.

Over on Wired’s Epicenter blog, Joel Johnson points out that while software has been created for iPhone and Android, all options have drawbacks that prevent widespread use. This logic leads Mike Masnick of TechDirt to predict that due to the apparent inability to create a catchall cell phone safety program, “we’re going to wait until we really get autonomous driving vehicles that have an ‘autopilot’ mode before we reach a stage where any sort of texting while driving is safe.”

Mastering voice control for cell phones appears to be the ideal choice. But I’ve never seen such software work even remotely well. And if the moderate success of T9 text prediction software is any indication, it will be a while before complete voice control gets the words right.

More importantly, when it comes to safety, advanced technology for safe driving while zooming down the highway is ineffective. Recent studies have shown that hands free conversations are barely safer than holding the phone to your face. According to the Department of Transportation, there were 4,500 accidents among people using hands-free devices between 2006 and 2008, not much lower than the 5,500 crashes among people using hand-held devices over the same period. And this doesn’t even take into account the false sense of safety such technologies could give drivers.

“Even though you are listening, your mind is processing the information, and you’re busy formulating a response,” said AAA Mid-Atlantic spokeswoman Tracy Noble. “We have to change the culture that everyone is multitasking when they are in a vehicle because it is a danger when you are taking your attention off the roadway.”

So while any technology to get our eyes on the road will benefit driver safety, the research so far indicates that we must promote a major change in behavior against having conversations behind the wheel altogether in order to achieve substantive safety. Until then, though, let’s just put down the phones and focus on the road.

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“While there have been modest declines within a few categories of referrals,” said NICB president and executive officer Joe Wehrle, “the 14 percent increase in the overall number of questionable claims for 2010 raises concerns.” The NICB data are particularly troubling a few key areas:

Of note were the 107 percent increase in questionable hail damage claims and 527 percent increase in questionable auto glass claims so far this year when compared to the first half of 2009. Today’s release reflects findings previously published in a NICB ForeCASTSM report of hail loss claims. Among the conclusions of the previous report: “Hail loss claims and QCs are generally concentrated in the central section of the US. However, seven of the top 10 states with the highest hail loss QC-to-claim ratio are not in the central section. This suggests that fraudulent hail losses can occur in any part of the country.”

Insurance violators likely aren’t thinking about the damage their actions will have on legitimate insurance claims and attempts to hold auto companies like Toyota to higher safety standards. But when it was revealed that CBS producers had rigged vehicles to exaggerate errors during a 60 Minutes segment, following a consumer challenge to Audi’s safety record after the company’s massive vehicle recall in the 1980s, the plaintiffs’ credibility was irreparably harmed.

Preliminary results of an NHTSA study into Toyota’s unintended acceleration problems suggested that some cases were the result of driver error, putting the public perception of plaintiff claims on shakey ground. Any additional indication that people are faking accidents to make a buck adds ammunition to the case against Toyota litigation while even if some claims were exaggerated, thousands of consumers were legitimately harmed by Toyota’s oversights.

So when you fake car accidents or insurance claims, you’re not just sticking it to the man. You’re sticking it to the little guy, too.

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GJEL: Besides the use of social media, are there any aspects of legal ethics that have already been impacted by the internet?

Diane Karpman: Everything’s been impacted by the internet. About six years ago, I began to decline representation of any lawyer not able to do research on the internet or basic email because I determined that they were an accident about to happen. The internet provides lawyers with documentary evidence or proof of their compliance with client demands and duty to communicate with clients. Before, veteran lawyers would say that they had someone who did that for them. But lawyers have gone from having a secretary to not needing one. Before email came along, many attorneys were being disciplined for not being able to interact with clients.

Lawyers essentially have five basic duties for their clients: confidentiality, loyalty, safekeeping of files and money, independent judgment, and communication. That’s why the internet has created such an easy way of communicating with clients. If lawyers aren’t using it, it’s legal malpractice about to happen. We also shouldn’t underestimate the impact the internet has had on legal research. There used to be a pay wall separating some from the ability to obtain cases. Google Scholar is the best thing to happen to lawyers in the last decade.

GJEL: Will the expanding use of social media by the general population have a permanent effect on attorney ethics guidelines?

DK: I’m not sure. There is a historic reaction against technological changes that the bar always takes. They always try to take the old rule and stretch it and see how it will encompass the new technological developments. The biggest problem with social media and lawyer guidelines is that at least in California, anytime a lawyer puts their name on anything, it’s deemed to fall under regulations governing advertising. Every state has very Byzantine regulations regarding lawyer advertising. The overarching theme is that everything lawyers say in advertisements must be true, accurate and not confusing. But these rules fail to take into consideration things like Twitter. If you only have 140 characters you just can’t comply with all the requirements.

People think that what’s online is friendly, but that’s not true when you are a professional. The main problem is that what’s posted on the internet is there forever. It has a permanent effect on attorney ethics guidelines.

Five states are obsessed with enacting stricter attorney advertising laws. Some of the most restrictive are Florida, Texas and Louisiana. Some states even have a requirement that before a lawyer does anything, it must be approved by the state bar.

GJEL: Are there free speech issues associated with social media regulation?

DK: Putting regulations on social media is a violation of freedom of speech. If you have to get pre-approval from the bar, how can you be blogging or tweeting? The social media platforms are stretching the ethical ideas way beyond what has been thought about before.

GJEL: What is your personal view of social media use for lawyers?

DK: I think it’s just terrific. Any way that makes it easier to communicate with clients and potential clients is just terrific. The idea of lawyers being separate from the population is a disservice for the profession. The more that people recognize that lawyers are real human beings is better for everybody.

GJEL: Are certain forms of social media, or certain social platforms, more ethically risky for attorneys than others?

DK: I’m very concerned about lawyers using Facebook. You’ve got cases occurring where lawyers talk about their trials on Facebook and influence jurors. The whole idea of friends on Facebook is difficult to reconcile with… a friend is not someone you have in a professional capacity. A client might want a lawyer to respond to them and find out on Facebook that they are on vacation. This is a bigger problem for younger members of the profession who don’t realize that everything they do is being watched. Lawyers are fiduciaries to their clients, meaning they put the interest of the client above their own, which is in conflict with being friends. A friend means you are equal and you both take care of each other. Lawyers may forget that they’re professionals and that the same rules don’t apply to them. The barrier between a person’s professional career and their social career is being eroded.

Another issue is Twitter, where you can tag certain words, like accident. It’s been suggested that some lawyers will tag the word accident and inappropriately contact victims. There’s been some other ethics opinions about lawyers in chat rooms. There is a difference between solicitations in advertisements.

GJEL: I understand that a number of states have enacted additional guidelines for social media use. Do you think each state should enact specific regulations around use of social media?

DK: Ethics rules are about 50 years behind the reality. When emails started the question was on whether to encrypt messages or not. They realized that email is just like a phone call and it cannot be tapped without the same ethics guidelines. As soon as a rule is enacted it’s almost obsolete. You have to take into consideration the overarching principles that guide the profession. Special rules just look silly. The type of regulation in Florida is just overkill. I almost think it’s unconstitutional just because it’s a prior restraint to freedom of speech.

GJEL: Are there any specific rules of thumb that you think would be beneficial for California lawyers to keep in mind when interacting on social media platforms and devices?

DK: California has very intense advertising rules. But if you boil them down the essence is that they must be true, accurate, and not confusing. The question gets really interesting when a lawyer must look for clients across state boundaries. A class action attorney, for example, could run in to trouble while talking to clients nationwide.

GJEL: Will regulations become more or less restrictive?

DK:The trend is toward less restrictive. The seminal case restricting lawyer advertising is Bates v. State Bar of Arizona, 1977. In that case the court said lawyers have a constitutional right to freedom of expression. But people didn’t know how to find lawyers. Permitting lawyer advertising is an access to justice issue. Without advertising, some people can’t find representation when they need it the most. Indigent or poor people aren’t likely to know where to look for representation, so there’s a pressing need of people with limited needs to find access to justice, and advertising makes this possible. Without it, the white-shoed partners in the multi-storied buildings are going to prevail. At some point you have to say that people need access to attorneys, even if that means releasing restrictions on attorney advertising.

Editor’s Note: Diane’s interview is entirely in her own words. Below are some helpful links about the resources and cases she discussed.

Google Scholar

Bates v. State Bar of Arizona

State-by-State Ethics Rules for Lawyer Advertising

Karpman & Associates

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The LA Times reports today on the uptick in lawsuits against bloggers accused of violating defamation rules online. “Most people have no idea of the liability they face when they publish something online,” said Eric Goldman, a professor at Santa Clara University and prolific legal blogger. “A whole new generation can publish now, but they don’t understand the legal dangers they could face. People are shocked to learn they can be sued for posting something that says, ‘my dentist stinks.’”

So far, bloggers have been held accountable for making threats and stating false information as fact, not expressing opinions. A blogger can say a local business owner is an idiot, for example, but not that he engages in unethical business practices. In one case, conservative New Jersey blogger Hal Turner was convicted by a Brooklyn jury for saying three Chicago judges “deserve to be killed” for a ruling on handgun laws he disagreed with. Turner faces ten years in prison.

Federal law states that websites are not liable for the comments posted by readers. But they can be required to disclose the account information of anonymous bloggers who have made threatening or defamatory statements. Even though the Supreme Court has upheld the right to publish anonymous pamphlets, judges have recently said that online commenters do not share the right to remain anonymous.

I don’t understand the logic for why anonymous comments online would be more harmful than anonymous pamphlets, but whatever the courts rule, bloggers should be careful about what they say online. It’s easy to make rude and vicious statements when you don’t have to face your opponent in person. But freedom of speech issues aside, using such inflammatory language neither helps win an argument nor helps foster a constructive online community.

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