Of Parsimony and Ockham’s Razor

January 31, 2012

Leo M. Mulvihill, Jr.:

Better than I ever could have said it.

Originally posted on THE TRIAL WARRIOR BLOG:

The Ockraz Logo

“I offer no apology; I am the victim here, not a miscreant.”~ Joseph Rakofsky

Occam’s razor, also known as Ockham’s razor, or in Latin referred to as lex parsimoniae (the law of parsimony, economy or succinctness), is the principle that among competing hypotheses, the one that makes the fewest new assumptions usually offers the correct one, and that the simplest explanation will be the most plausible until evidence is presented to prove it false.

My co-defendant and local counsel in the Rakofsky v. The Internet lawsuit, Eric Turkewitz has  posted a new update #4 which includes a new court filing by the plaintiff, Joseph Rakofsky:

Update #4, 1/31/12 – Rakofsky’s Reply to other defense opposition to the motion in the Appellate Division to lift the stay for him only. No response to our papers (which were served 1/26/12, one day before they were due to be served): RakofskyReply

View original 241 more words


The Post in Which I Attempt to Answer: Where am I Supposed to Park my Scooter?

January 27, 2012

Foreshadowing my noble attempt.

Once upon a time, I used to ride a Honda CH-80 Elite scooter around these City streets. You might recognize it as the pizza delivery driver’s ride  from the opening scene of the original Teenage Mutant Ninja Turtles movie.

I scooted merrily around Philadelphia without a care in the world, pleased at myself for the fantastic gas mileage and quick manner in which I navigated the streets. But I hung up my scooter helmet for good one day when I scooted out to get my sick wife some orange juice, and in an unfortunate pothole incident, my life was almost ended by a 1997 Ford Taurus. That would have been a tragedy — killed by a Ford Taurus. Embarrassing.

Though my scooting days are now over, for the time that I scooted around town, I faced the same problem that many two-wheeled riders still face today: Where the hell can I park this damn thing without getting a ticket? (Spoiler: By the end of this post, I won’t be able to answer this concretely.)

Unofficially, I’ve been told a few different things from Philadelphia Parking Authority employees: within three feet of a building, so long as it’s not obstructing the sidewalk; to an inverted U bike post; to a traffic sign; to a pole, etc. But as anyone who’s parked in the City knows (or anyone who’s ever seen Parking Wars, for that matter), you can’t really every count on the word of a PPA employee to be “the law.”

So Here’s the Law.

Under the City Code §12-913. Prohibitions in Specified Places

  (1)     Except when necessary to avoid conflict with other traffic or to protect the safety of any person or vehicle or in compliance with law or the directions of a police officer or official traffic-control device, no person shall:

(a)     Stop, stand or park a vehicle:

               ***

               (ii)     On a sidewalk except that a bicycle may be parked as provided in Section 12-807.

***

Got it? No vehicles other than bikes on the sidewalk. This leads us to a follow up question: what’s a “vehicle” for the purposes of the code?

Well, the Philadelphia Code doesn’t actually define a vehicle in the definitions section of Title 12. Luckily for us, the Commonwealth picked up the city’s slack.

Let’s look to the Pennsylvania Motor Vehicle Code, 75 Pa. C.S. §102, Definitions, which defines just about any motorized-two wheeled device you can think of:

***

“Motor vehicle.” A vehicle which is self-propelled except an electric personal assistive mobility device or a vehicle which is propelled solely by human power.

“Motorcycle.” A motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.

“Motor-driven cycle.” A motorcycle, including a motor scooter, with a motor which produces not to exceed five brake horsepower.

“Motorized pedalcycle.” A motor-driven cycle equipped with operable pedals, a motor rated no more than 1.5 brake horsepower, a cylinder capacity not exceeding 50 cubic centimeters, an automatic transmission, and a maximum design speed of no more than 25 miles per hour or an electric motordriven cycle equipped with operable pedals and an automatic transmission powered by an electric battery or battery packpowered electric motor with a maximum design speed of no more than 25 miles per hour.

***

“Vehicle.” Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks. The term does not include a self-propelled wheelchair or an electrical mobility device operated by and designed for the exclusive use of a person with a mobility-related disability.

Under these definitions, it seems that unless you’re driving a Jazzy Power Chair around town, you, the scooter driver, are on a “motor vehicle ” under Pennsylvania law, and therefore presumably also under Philadelphia law.

The PPA agrees, and established special zones with scooter-only parking:

Pennsylvania Law prohibits motor  vehicles from driving or parking on sidewalks. The Philadelphia Parking Authority has established new parking zones to accommodate motorcycles and scooters in the area between Arch and Locust, Broad and 20 Streets. Only motorcycles and scooters are permitted to park in these zones, where the meter fee will be one-half the prevailing rate on the block. Motorcycles and scooters may not park on the sidewalk in that area. Doing so will result in a $76 fine.

You can find a list of these parking spots here. When you seen them, you can tell that they’re special sports because the parking meters are white. Also, and perhaps more obviously, the spots are very tiny.

As far as I can tell – According to the law as written right now, it looks like you have to park your putt-putt in the street.

“No motor vehicles may be parked on the sidewalk. A scooter is a motor vehicle. Ergo, no motor scooter may legally park on the sidewalk.” If A, then B. A, therefore, B.  It’s a simple logic problem, right?

Wait a second – at the bottom of the PPA page, though, they give you a little nudge-nudge wink-wink: “Motorcycle zones are  still in the  process of being installed within the  pilot area. Once a motorcycle zone has been established on a block, the prohibition on sidewalk parking will be strictly enforced in the vicinity of that zone.” Curious. Does this mean they’re not strictly enforcing sidewalk parking rules outside of these areas? A quick walk around City Hall seems to confirm this, as scooters are parked all over the place.

So, with the PPA basically admitting they’re not enforcing the sidewalk parking law outside of that area, it seems that you can park on the sidewalk chained to a bike rack, even though it’s technically illegal,  so long as you’re not blocking sidewalk traffic.

This Sounds Like a Typical “It Depends” Lawyer Answer. What Can you Definitively Tell Me?

As far as I can tell, these are the takeaways from today’s post:

  1. It is illegal to park your scooter on any public sidewalk.
  2. If you park on the sidewalk in the designated “Motorcycle and Scooter Zone”, the PPA will write you a $76 ticket.
  3. Calvinball rules apply to the rest of the city.

I’m glad that almost 1,000 words later, we’re right back where we started. Isn’t it grand when laws are well-written and don’t allow for ambiguity?

Bonus Takeaways All Drivers and Bikers  in the City who Ride Around with iPod Headphones in Totally Oblivious to the Rest of the World — Stop Doing That.

It’s not only stupid, it’s illegal.

§12-812. Use of Audio Headphones

(1)     No person shall operate a bicycle on a street or highway while wearing headphones connected to an audio device.

***

 §12-1122. Use of Audio Headphones While Operating Motor Vehicles.

(1)     No person shall operate a motor vehicle on a street or highway while wearing headphones connected to an audio device.

(2)     For the purposes of this Section, the term motor vehicle shall include any automobile, truck, bus, motorcycle, or motor-bike.

Until next time — when I try to tackle a recent Philadelphia Common Pleas Court case that really bolsters tenants’ rights against slumlords — safe scooting!

Note: Leo really enjoyed the Teenage Mutant Ninja Turtles movie as a kid. While the scooter survived the Taurus near-death incident, Leo decided to sell it immediately afterwards to prevent future near-death experiences. Last he saw, it was living somewhere down on Christian Street – its tell-tale scratch marks and bright red color are a dead giveaway. The Taurus could not be reached for comment.

If you have any experience being ticketed for parking your scooter in the City, let me know in the comments below, and let’s see if we can figure out the rules to Calvinball. 


Quote of the Day – From the Darkest Pit of Hell Edition.

January 26, 2012

You too can friend me on Facebook.

And you should be ashamed of yourself for even having a supporting agrument on his behalf. If this happened to your daughter I’m sure you be fucking silent right now. So if you have anymore supporting comments for this scumbag and his attorney, you should join them in the darkest pit of hell. Just saying. Prayers and thoughts for the VICTIM AND THERE FAMILY.

- Some guy on Facebook, responding to me defending a defense attorney for defending his client.

I know that guy was trying to insult me, but it really just made my day.


Dallas Law Firm Sues to Have Bad Review Taken Down.

January 26, 2012

Per today’s ABA Journal:

A Dallas law firm has filed a lawsuit seeking to learn the identity of a commenter calling himself “Ben” who posted a bad online review.

The Lenahan Law Firm claims defamation and seeks $50,000 in damages, Texas Lawyer reports. Partner Wes Black says the suit will allow the law firm to subpoena Google to learn the commenter’s identity.

Ben wrote in his comments on Google Review: “Bad experience with this firm. Don’t trust the fake reviews here.” Ben also gave a bad review to an Oregon cleaning company and may have intended to post the negative review about a different law firm closer to home, the suit says.

Hasn’t this firm heard of The Streisand Effect?


Why Vetting Your Referrals Is Important: Don’t Just Send People to Some Guy Off Twitter

January 23, 2012

Tonight I saw a Tweet from Rachel Rodgers:

@RachRodgersEsqRachel Rodgers

Any Colorado business attorneys out there? I have a potential client for you.

3 hours ago via webFavorite Retweet Reply

Rachel’s Tweet reminded of something that happened to me a few years ago. I had recently gotten my law license, and I was going to “build a referral network.” Become a rainmaker.  During the year, I went to networking events, had lunch with people, and acquired business cards left and right.

At a young lawyer networking function, I met this guy. We’ll call him Steve. Steve seemed like a nice guy, and said he focused on, let’s say for the story’s sake, criminal defense and family law, two areas outside of what I do. Steve was a year older than me and liked to talk a lot. He also shared my affection for Jack and Coke. Steve was a dude’s dude.  In addition, this seemed like a mutually beneficial relationship for us, because I refer out criminal and family law, and he refers out civil litigation matters. Like me, Steve was looking to network and build a practice.

Now, I had never seen Steve in a courtroom or observed his work product. I had just met him at a networking event, although he seemed pretty cool.

As fortune would have it, a little while after I met Steve, a former client of mine was looking for a good family lawyer to handle something fairly complex.  I had built up a good relationship with this client.

Naturally, I had to show the client that I “knew” people, and that I was a one stop shop to help meet their legal needs. Hell, I “know a guy” for everything. Plus, hopefully Steve would send me work in the future. This was networking, baby!

Now, what I should have said was: “I don’t know anyone.  I’m sorry.”

What I did say: “Oh yeah, I know a guy! You should call Steve!”

There was one huge problem with me telling him to call Steve: I didn’t know anything about Steve or how he practiced law. I had never seen Steve’s office (did Steve even have an office?), any of his papers, or interacted with Steve outside of this networking event. In reality, Steve was just some guy with a business card that I knew nothing about, other than the fact he shared my affinity for Jack and Coke. Given that was the case, why in God’s name would I use my credibility and trust with a client to “recommend” Steve?

I wish I would have asked myself that question at the time.

Unfortunately, the representation didn’t go well. The client gave Steve a generous retainer, the representation was botched, and the client came back angry at me. The client felt he had spent a hefty chunk and change and nothing had been accomplished. And he was probably right.

The client was very disappointed with me when we discussed the matter:

“Jordan, I don’t mean to be critical, but I don’t think Steve knew what he was doing.”

“I’m sorry to hear that.”

“… so why did you send me to him?”

I didn’t have a good answer. Then it dawned on me — it was incredibly reckless and irresponsible to send someone who trusted me to some guy I had just met at a networking event. I had violated the client’s trust.

I went to my boss, James, and asked what to do. Naturally, James wasn’t happy with me.

“Jordan, I’ll be blunt. You fucked up. You should never refer work to any schmuck you meet at a networking event. Doing that is incredibly irresponsible, it’s stupid, and it will just make your clients come back mad at you. You had no idea about this guy’s practice, but you lent him your credibility. For what?  What were you thinking?  I take that back, you weren’t thinking.”

James could tell I knew I messed up, and was then kind enough to turn it into a learning experience…

“The most important thing you have with your clients, your adversaries, and the court is your credibility. You become credible by doing the right thing and being a man of your word. And unfortunately, your credibility is going to be shot with this client for awhile.

Kid, I know you’re eager to build a practice, but slow down. You have an obligation to do what’s best for your clients. And when they know you’re always going to act in their best interests, they’re going to come back to you and refer you other clients, because they will trust you. That is how you build a practice. The quickest way to sink your practice is to sacrifice your credibility, like you did today.

Moving forward, here is what we are going to do… we are going to make it right. I know this woman, Carol, who does work in that area. Her office is right by the courthouse. I’ve known Carol for many years and I can vouch for her as a competent and ethical attorney. We’re going to apologize to the client, and then we’re going to refer him to Carol.”

Thankfully, James fixed the situation and Carol made everything right. The client was happy and all was well. Though to this day, I still wonder if whenever I talk with the client, I’m still the guy who sent him to Steve…

After that incident, I won’t send work to someone unless I know them. If I don’t have a guy, I will tell the client “I don’t have a guy for that.” If I do have a guy, it’s because I know that person and I trust their abilities. Any client with a brain could Google “business attorney Colorado.”  When a client comes to you for a referral, it’s because they trust you, and they believe you will refer them to someone you trust. Anyone who refers their clients to “some guy who knows a guy on my Twitter feed” violates their client’s trust and is doing them a disservice.

My credibility is far too important to send work to someone just because they subscribe to my Twitter feed and ask for work in a certain area.


SCOTUS quote of the day – A tiny constable with incredible fortitude.

January 23, 2012
You can't tell a Constable by his size - he's just a teeny little super guy.

You can't tell a Constable by his size - he's just a teeny little super guy. With incredible fortitude.

But it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case. (Is is possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movement’s of the coach’s owner? [FN 3])

[FN 3] The Court [it its majority opinion] suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.

-Justice Alito discussing Justice Scalia’s opinion in United States v. Jones, and the confluence of 18th century law, the Fourth Amendment, and GPS searching technology.

I love when a SCOTUS opinion brings home the laughs.


SCOTUS: Warrantless GPS Tracking a Search Under 4th Amendment.

January 23, 2012

You can buy this doormat at Target .com for $18.99. I did.

Today in SCOTUS news, an apparent victory for privacy advocates and those who’d prefer to protect our Fourth Amendment rights against unreasonable searches and seizure.

As the AP reports:

The GPS device helped authorities link Washington, D.C., nightclub owner Antoine Jones to a suburban house used to stash money and drugs. He was sentenced to life in prison before the appeals court overturned the conviction.

Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required.

“By attaching the device to the Jeep” that Jones was using, “officers encroached on a protected area,” Scalia wrote.

All nine justices agreed that the placement of the GPS on the Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure.…

Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices, like mobile phones. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

From the little I’ve read about the ruling, it seems like the majority, under Scalia, drew a physical distinction whereas Alito drew a more theoretical line. I look forward to reading a gander at the full opinion.

It’s always a good day for me when the SCOTUS upholds our rights to be free from unreasonable state intrusion in an era when so much government is champing at the bit to take those rights away.

Read move over at NPR’s site and and listen to Nina Totenberg’s take on the matter.

Update [12.50]: Here’s a link to the Jones opinion.

Update [16.34]: Orin Kerr at The Volokh Conspiracy has some thoughts about the case.

Update [18.34]: My former criminal procedure professor Donald Tibbs has some thoughts that were picked up by AP -

The Supreme Court’s decision is an important one because it sends a message that technological advances cannot outpace the American Constitution…. The people will retain certain rights even when technology changes how the police are able to conduct their investigations.


How Not to Find Clients: Avvo.com

January 23, 2012
Avvo -

"Give legal advice in areas of law that you don't know, in jurisdictions where you don't practice, for FREE! Get points! Look important!"

Received an interesting email in my inbox this morning: a response to my answer to someone’s Avvo question.

I occasionally answer a question or two in Pennsylvania when I feel that I might actually be able to point a person in the right direction, usually something like giving them the number to the local bar referral service, telling them where to go to file a PFA, or recommending that they may want to hire an attorney than ask for free advice on the internet.

Understand that I have no idea what answer this was sent in response to. All grammar and spelling left intact.

Dear Leo M Mulvihill Jr

Like the other guy….
you didnt actually answer the question!!!
but the typical lawyer is really good at being shart and uselsss!

You just responded in the typical zero sum game, knee jerk response
that has become a lawyers cliche

I dont have the time an energy to point out all the things wrong with your response including you ill informed understanding of the situation
Obviously you are not here to help anyone but yourself.
Way to go!!!!

Now that i have returned the favor of being dismissive and
contemptuous ( see how that feels) i can move forward

My point being…. All lawyers are taught not to ask (or anwer) any questions without know the answer first. Did you miss that day in lawschool also!!??!?!!? Why do you guys insist on doing that???
Did it ever occur to you for just a nano second, that I was writing based on speaking with firms on the phone and getting the typical lame ass response that is typical in both the legal and medical community. BTW after 1 in 20 i am getting to the right parties
with three or 4 good matches who are willing to proceed at the state
or federal level

I am a scientist. Scientists as a group deal in the raw data.
Not some lame attempt to spastically guess in some pointless need to gratify our egos!!!!

Now if you have something usefull to add so that the scam artist and thieves actually have battery backup lighting in the stairways
then respond

if not lets save the bits and bytes, so i can do something productive
like stop these people from being documented theives

Vexed

A client with a personality like this – I bet attorneys are lined up around the block to take his case. Why do I even bother to answer questions?

Note: I have been answering questions on Avvo.com since I was admitted. I used to think it was a helpful way to grow exposure and get client leads. All I’ve gotten so far is vindictive diatribes in emails and people calling me from another jurisdiction asking me for free legal advice. I think it’s time I gave up on Avvo.


Fishtown in the Wall Street Journal – Whoda Thunk?

January 21, 2012

Fishtown Market, a la Google Maps.

For what it’s worth, our neighborhood was compared to Boston’s Belmont in a recent WSJ article titled: “The New American Divide.

Bizarre seeing us compared to upperclass neighborhoods in both Boston and right on the Main Line too.

Not the mention that there’s a great shot of Fishtown Market in the article.


Snow: A Philly Primer (p.s. shovel your sidewalk).

January 21, 2012
The view out my window this morning.

Time to get the shovel.

[Ed. note Jan. 4, 2014 - If you're coming here from Fishtown Neighbors Association's Facebook post, welcome! Leo originally wrote this back on January 22, 2012, but we're pretty sure the same rules still apply.] 

Well, we finally got our first snow of the winter here in Philadelphia. And while it’s no blizzard, we nevertheless need to address the thorny issue of snow removal.

The Philadelphia City Code 10-720 – Snow Removal from Sidewalks.
As much of a PITA as it might be to get up out of your warm bed early in the morning, you should get that walk shoveled ASAP.

Under the city code, you have six hours from the time snow has stopped falling to get out there and clear a path three feet wide on your sidewalk.

If your sidewalk is less than three feet then you’re allowed to clear a path only a foot wide. If you’re a tenant in a single home, you probably have to clear the sidewalk yourself.

If you live in a multi-family building, it’s the landlord or management company’s responsibility to take care of show shoveling (though it’s likely your lease says that you’re supposed to shovel).

But  remember that you can’t just shovel it right into the street, either – that’s a no-no under the rules.

And if you neglect to shovel, you could face city fines between $50 and $300! What a way to ruin a snow day.

Finally, if you see an area that’s seriously impeding people getting around the city, you could always call the Streets Department Customer Affairs Unit at (215) 686-5560 to report a non-shoveler - though you might as well just be a good neighbor and shovel it yourself. Call it your good deed for the day.

Shoveling Out Your Spot – A Lesson in Etiquette.
Few things get a Philadelphian as hot under the collar as spending the time to shovel out a car, only to have someone else swoop in and steal the fruits of his labor. According to urban legend (and reputable news sources as well), the spot thief may suffer from any number of maladies, from bricks through the windshield, to slashed tires, to acute lead poisoning.

Though Philly parking spot etiquitte has been written about manymany times, lets distill it to three simple rules:

  1. If you take the time to shovel it, it’s rightfully “yours”, and you may place a parking chair there for a reasonable period of time while snow is still on the ground.
  2. Don’t steal the spot another person shoveled.
  3. If you leave a cone, lawn chair, or trash can in the street even after the snow has gone, people can and will remove the marker and park there. Serves you right for leaving your dammed parking chair in the street for so long.

Sure, the age-old tradition of saving spaces is actually illegal, as are vandalism or physical assault in retaliation.

But think about it from a Fred Rogers’ perspective: does a good neighbor take a spot that another took the time to shovel out?

Do I have to Worry About Slip & Fall Lawsuits?
As we’ve all learned through experience, ice and gravity aren’t a good combination. But do you have to worry about a lawsuit if someone falls on ice or snow in front of your property?

Pennsylvania law requires that where there’s a general accumulation of snow and ice, a court should apply the “hills and ridges” rule. This means that a plaintiff who slips and falls because of generally icy and snowy conditions must prove two things:

  1. There was some sort of defect in the walkway that the landowner previously knew or should have known about, and
  2. The defect, rather than the snowy and icy conditions alone, caused her fall.

This doctrine applies only in snowstorms or in generally icy conditions. As the Pennsylvania Supreme Court put it in Williams v. Schutz, 240 A.2d 812, 813-814 (Pa. 1968):

proof of hills and ridges is necessary only when it appears that the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation… the law, wisely, does not require that such abutting owner keep the sidewalk free from snow and ice at all times: to hold otherwise would require the impossible in view of climatic conditions …

[T]hese formations are natural phenomena incidental to our climate … Since it is virtually impossible for a property owner to keep his sidewalk completely free of ice or snow when general slippery conditions exist, and since under these conditions a pedestrian is better prepared to exercise a greater degree of caution when traversing the ice or snow, courts have been reluctant to permit recovery without a showing of hills and ridges.

In plain English – Pedestrians: pay attention and walk carefully. Landowners: shovel and salt your walks.

Where a landowner can run into problems, though, is where he initially shovels and salts, only to have lower temperatures cause ice to re-freeze into a slippery mess:

[W]here a specific, localized, isolated patch of ice exists, it is comparatively easy for a property owner to take the necessary steps to alleviate the condition, while at the same time considerably more difficult for the pedestrian to avoid it even exercising the utmost care. Id.

Translated from legalese: if you see ice in front of your house that is somehow localized and not the pure result of natural forces, get rid of it pronto. Otherwise you might be on the hook if someone takes a spill in front of your house and hurts herself.

That’s it for a quick primer on rules of the snow here in the City of Brotherly Love. Now if you’ll excuse me, I’ve got to stop writing about it, get out of my pajamas, and go shovel my own walk.

***Note: I do not, in any way, endorse retaliation against anyone for spot stealing. While it might be considered rude, it’s no reason to escalate the situation to vandalism or violence. Really, just take the extra 20 minutes to shovel a new spot.


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