Can they REALLY get access to my Facebook page because I filed a lawsuit, even though its set to private?

February 28, 2012

Not just for annoying your friends

Civil litigators, tell me you’ve never heard this before:

“You should be careful about what you post on Facebook. We wouldn’t want the defendants getting hold of damaging information.”

“Oh, don’t worry, I set my profile to private.”

Well guess what? Just because a Facebook profile is set to private doesn’t necessarily mean it can’t be accessed if you’re involved in a lawsuit. In fact, your entire Facebook account could be subject to letting an attorney access it, including your private messages, chat logs, wall, status updates, and stupid FrontierVille account. This is because current case law in Pennsylvania suggests that one party may be given carte blanche access to another party’s social media accounts if there is a reason to think it could yield information relevant to a lawsuit.

Let’s start with Largent v. Reed, a case out of Franklin County. This case involved a vehicle accident where a plaintiff was suing for personal injuries. The issue before the court was this:

Defendant Jessica Rosko has filed a Motion to Compel Plaintiff Jennifer Largent’s Facebook Login Information. Rosko has a good faith belief that information on Jessica Largent’s Facebook profile is relevant to Rosko’s defense in this matter.

Defense counsel discovered that she has a Facebook profile, that she had used it regularly to play a game called FrontierVille, and that she last accessed it the night before the deposition.

In other words, the defendant wanted the plaintiff’s Facebook login information.

Yes, you read that correctly: the defendant wanted access to the plaintiff’s entire Facebook profile and even a FrontierVille account. See? I wasn’t kidding about the FrontierVille thing.

But how is that fair?

The defendant believed the plaintiff “had posted several photographs that show her enjoying life with her family and a status update about going to the gym.” The plaintiff wasn’t happy about this, and argued, among other things, that her privacy would be violated if forced to turn over access to her entire Facebook account. However, the court sided with defendant, holding that:

Photographs posted on Facebook are not private, and Facebook postings are not the same as personal mail. Largent points to nothing specific that leads the Court to believe that discovery would cause unreasonable embarrassment. Bald assertions of embarrassment are insufficient. As the court stated in McMillan, Facebook posts are not truly private and there is little harm in disclosing that information in discovery. Nor does the Court believe that allowing Rosko access to Largent’s Facebook profile will cause unreasonable annoyance.

We will thus allow Rosko access to Largent’s Facebook account to look for the necessary information. Plaintiff Jessica Largent must turn over her Facebook login information to Defense counsel within 14 days of the date of the attached Order.

In other words, we’re sorry you don’t like it, but that’s the law of tough noogies. Turn over your Facebook login information, because we’re going to let defense counsel have a look at it.

However, the Largent court noted that a party’s social media accounts might not be available in every instance:

The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.

Next, let’s take a look at McMillen v Hummingbird Speedway, Inc., which comes out of Jefferson County. In McMillen, we have another vehicle accident case. Plaintiff McMillen alleged his injuries were permanent and that he had lost life’s pleasures. However, after defense counsel looked at a public portion of McMillen’s Facebook profile, they learned that he made comments about a fishing trip and may have gone to the Daytona 500 in Florida. The defendants demanded he turn over production of his user names, login names, and passwords to any social media sites. The plaintiff obviously argued that his comments on Facebook among close friends were private. The court rejected this argument, stating:

Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.

Both sites at issue here do guarantee a modicum of privacy insofar as users may, with the exception of certain basic information, choose what information and posts to make public and which ones to share with only those persons they have identified as friends.

Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post.

Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given Koken’s admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” 911 A.2d at 1027, and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.

The plaintiff was then given 15 days to turn over the login and password to his MySpace and Facebook accounts for the defendants to inspect.

Zimmerman v. Weis Markets also produced a similar result. In Zimmerman, the plaintiff was operating a forklift in Weis Markets. He injured his left leg and claimed diminished earning capacity, embarrassment from a scar, and that he sustained a permanent injury. The defendant viewed the public portion of Mr. Zimmerman’s profile, and found this his hobbies included “ridin’” and “bike stunts” and that his MySpace account showed pictures of him with a black eye and his motorcycle before and after the accident. The pictures also showed Mr. Zimmerman wearing shorts with his scar clearly visible. However, Mr. Zimmerman had testified in his deposition that he no longer wore shorts because he was embarrassed about the scar. The court, relying on McMillen, held that the plaintiff had to turn over the login information to his Facebook and MySpace page:

Zimmerman placed his physical condition in issue, and Weis Markets is entitled to discovery thereon. Based on a review of the publicly accessible portions of his Facebook and MySpace accounts, there is a reasonable likelihood of additional relevant and material information on the non-public portions of these sites. Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites to share with other users of these social network sites, and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weis Markets from access to such information. By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge.

Now, there are also cases out there where defendants were not allowed to obtain a plaintiff’s social media login information, but in my view, those cases are in the minority and different from the above cases.

For example, in Arcq v. Fields, the court denied defense counsel’s requests to access a plaintiff’s social networking sites. Interestingly, the court in Arcq did not reject the logic of McMillenZimmerman or Largent, but rather, it stated that the defense did not have a reason to suspect the plaintiff’s social media accounts contained relevant information. The Arcq Court’s reasoning was this:

In analyzing the reasoning in the cases discussed above, it has become apparent that the courts granted the Motions to Compel because the party seeking information had a basis for their request. The parties had viewed the public portion of opposing parties’ social networking profiles which contained relevant information and therefore had reason to believe the private portion might contain some as well. Their requests were reasonably calculated to yield information that would lead to admissible evidence.

In other words, the court seemed to suggest that the defendant needs to show something more than “The plaintiff has a Facebook page and there might be stuff on it.” The Arcq Court suggested that a party must first use some portion of a public profile as a gateway to gaining access to private information. Critically, the Arcq Court did not reject McMillen, Zimmerman, or Largent, but instead differentiated the facts.

Next, in Piccolo v. Paterson, a Bucks County Court of Common Pleas denied defense counsel’s request to access plaintiff’s Facebook page without opinion. Since the opinion is so short, I have to rely on other sources. According to The Legal Intelligencer, the court rejected defendant’s arguments, noting that defendant had already been provided an accurate photographic representation of the relevant evidence. As the Legal Intelligencer notes:

Piccolo [the plaintiff] allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.

This might come closer to setting contrary precedent, but there is no written opinion.

Kalinowski v. Kirschenheiter  was slightly more sympathetic to plaintiffs. However, I can’t find a written opinion, so I must rely on other sources. According to Philip Miles at Lawffice Space and The Legal Intelligencer:

In Kalinowski v. Kirschenheiter and National Indemn. Co. (Luzerne Cty.), the defendant argued that he saw pictures and posts on the publicly accessible portions of the plaintiff’s social media accounts that warranted further discovery. The posts showed the supposedly injured plaintiff lounging on a bar stool in a pimp outfit, advertised a lingerie party at a bar the plaintiff owned, and promoted a going away party for him that promised to be “a night he WON’T REMEMBER!!”

The plaintiff argued that the pimp picture was pre-injury and the content cited by the defendant served no purpose other than to embarrass the plaintiff. The plaintiff also emphasized that none of the content directly impeached any of his testimony.

The judge denied the motion to compel production of the plaintiff’s Facebook and MySpace passwords. But, the order also directs the plaintiff not to delete any of the present content. So, the door remains open to future social media discovery.

From what I’m reading, it doesn’t look like the court rejected Largent, McMcMillen, or Zimmerman. Rather, the court seems to be following the Arcq Court’s rationale: find a little bit more and we’ll consider it. That is probably why the court made the plaintiff preserve the information on his social media accounts.

Finally, we have a decision right here in Philadelphia – Martin v. Allstate Fire and Casualty Insurance Co., where Allstate’s motion to compel access to a Facebook page was denied. According to Law.com, this matter involved defense counsel seeking to obtain plaintiff’s Facebook login information.  As summarized on Feldman Shepard‘s blog:

In Martin v. Allstate Fire and Casualty Insurance Co., the plaintiff (Patricia Martin) was struck by a car while she was walking. She was awarded $15,000, and subsequently attempted to collect underinsured motorist coverage from Allstate. After she filed suit, the insurer asked for her Facebook password in an attempt to obtain any information about the accident that she may have posted as part of their discovery. Ben Present writes, “Allstate argued that ‘any harm in disclosing information exposed to friends’ was outweighed by the benefit of ‘honestly and correctly’ resolving the issue of damages Martin raised.

The Philadelphia Court of Common Pleas denied the Motion to Compel without opinion. However, that isn’t out of the ordinary in Philadelphia discovery court, where motions are usually decided on the spot at oral argument.

Notably, the above cases all refer to personal injury matters. An analysis of whether a Facebook profile is relevant under the discovery rules could differ in a custody or divorce matter.

Where does that leave us? With several written opinions suggesting that defendants can obtain carte blanche access to Facebook accounts if they can show it might have relevant information, one decision saying a defendant needs a basis to access a Facebook account, and a couple of judges who denied motions to compel seeking access to social media accounts but didn’t write opinions expressing their rationale. The Arcq Court (and the Largent Court) seemed to suggest the test is that a party must first find something relevant in a public profile before delving into the private portions, which isn’t exactly a high bar…

In my view, the case law seems to suggest that accessing a party’s social networking accounts is fair game if there is a basis to believe it could lead to relevant information. I’ve yet to see any authority expressly rejecting Largent, McMillen, or Zimmerman.

Put simply, “Your Honor, we found something in the plaintiff’s public profile that suggests there might be relevant information in the private section, and we would like to investigate it further” seems to fly. However, “Your Honor, they have a Facebook profile, but it’s private and we want to see it” doesn’t seem to fly.

So what does it all mean? Well, I don’t know… it could mean a lot of things. New York personal injury lawyer and blogger Eric Turkewitz raises this issue:

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Notably, the court in Zimmerman addressed Eric’s important concerns by, well, blowing them off:

In the alternative, Zimmerman also argued that the Court should conduct an in-camera review and decide
what materials should be provided to Weis Markets. This argument is flatly rejected as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.

In addition to Eric’s concerns, I believe these decisions also raise another issue:

Private messages.

For instance, what if a client were to reach out to a lawyer on Facebook via a private message? Would that be construed as a waiver of privilege? Does this mean that lawyers should not have Facebook pages or friend anyone who is a potential client? I’m sure many lawyers out there have received a private message from someone asking for legal advice. Particularly in my generation, many people view private messages as emails. Are they discoverable?

And what about private chats, or seemingly private communication with one’s spouse that might otherwise be privileged?

The Zimmerman Court addressed this concern, by, well, blowing it off:

Thus, while it is conceivable that a person could use [social networking] as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.

I think it’s worth noting that mediums of communication change from generation to generation. My grandparents wrote each other letters. My parents spoke with each other on the telephone. My wife and I communicate via Facebook and GChat, and I suspect the same is true for many young people. However, the courts don’t seem to appreciate that social media has replaced the telephone and letters for a younger generation.

But the younger generation isn’t running the court system.

Hopefully our appellate courts will provide some guidance, and these other issues will be addressed.

In any case, one thing is clear right now – just because a Facebook profile is set to “private” doesn’t mean it can’t be accessed. It also appears that attorneys are increasingly requesting full access to a litigant’s entire Facebook profile – not just one’s Wall or photos.

And the courts are letting them have it.

(Many thanks to TortTalk.com, Philip K. Miles III, Eric Turkewitz, Eric B. Meyer of The Employer Handbook, Feldman Shepherd, and the GTLE Blog!)


How To Start a Law Blog: Advice From a D-List Blogger

February 27, 2012

Step 1: Write stuff you think is interesting or important

Step 2: ??????

Step 3: PROFIT! STRAIGHT CASH, HOMIE!


Pimp My Ride

February 27, 2012

Apparently a Honda Civic can rest on soda crates

There has been a rash of tire thefts in the Fishtown and Mayfair area. That is a picture of my car from last month after getting jacked up right in front of my house. At the last FNA meeting, the police said Honda Fits and Honda Civics are being targeted.

You would think that someone talented enough to steal 4 wheels in a residential area would put that skill to good use and work for NASCAR or something.

But you’d be wrong.

(Thanks to Cori A. Weber for the tip!)


What’s the Worst That Could Happen? Mentorship [Updated]

February 25, 2012

A good mentor isn't there to build your self esteem

When I first started practicing in 2008, I had a head full of steam, a desire to be a rainmaker, and very little experience. I thought clerking for a law firm, graduating law school, and passing the bar exam had taught me everything I needed to be a lawyer. I was wrong.

Now, I had gone from college straight to law school. So admittedly, I had no idea how lawyers generate clients. Like any person my age, I punched in a Google search and tried to learn all I could about lawyer marking, how to get clients, and how to build a law practice. Man, there was a whole world out there just looking for lawyers on Facebook, Twitter, and the internet. I learned about what search engine optimization (“SEO”) meant and how that had to be “optimized” to make sure potential clients (or “PCs” as it’s called by all the cool kids) could find me.

And there were all kinds of great organizations out there willing to help a young lawyer like me generate clients and build the practice of my dreams. For a reasonable fee, of course.

I’ve written about this before, but my boss James wasn’t too impressed. His opinion went something like this: “Kid, you gotta learn how to be a lawyer first. Worry about that stuff later. Try a jury case or two and then we’ll talk.”

At the time, I thought James was just old, critical, and “didn’t get it.” Naturally, I ignored him and decided to talk to people who specialized in attorney advertising.

One piece of advice I got was this: “As a young lawyer, you shouldn’t put when you graduated on your website. PCs will know how green you are. You don’t want that.”

Made sense at the time. I believed this person was “in the know”, and that’s what you had to do as a young lawyer to become successful.

Later that year I finally convinced James to put up a website. (this was more for my benefit than his.) Before putting it up, I discussed my bio with him:

“Looks good but the year you graduated isn’t there.”

“I don’t want to put that in my bio.”

“Okay. Why not?”

“I was told that potential clients will know that I’m a newbie lawyer and be less inclined to hire me.”

“That’s probably true, but did you think of this… let’s say a client hires you. Then let’s say something goes wrong, and they complain about you to the disciplinary board or file a malpractice claim. That stuff does happen. Don’t you think one of their issues is going to be that you made it seem like you had more experience than you actually did? That they were mislead? So don’t you think it’s better to to have a bio that accurately reflects who you are and what you’ve done, so that a potential client can make a fair and informed decision about whether to hire you? I’m not saying it’s “unethical” to omit the year you graduated on the website, but I think the more open and honest you are, the less of a chance you have of something blowing up in your face if something goes wrong. I would use that omission against you in a malpractice claim, personally.”

I hadn’t thought of that. All I had thought of is getting potential clients – not “what’s the worst that could happen.” However, James had prosecuted many malpractice actions before, and knew what to look for.

And I think this reflects the difference between real lawyers and legal marketers. When you present a scenario before a lawyer like James, they’ll analyze it with a mind towards “What’s the worst that could happen?” And they’ll do this by relying on their past experiences. In contrast, lawyer marketers, some who have little or no legal experience, have one goal – to get PCs on the phone. And they don’t usually have the type of experience James has to truly view it from a “what’s the worst that could happen” standpoint.

Which brings me to Rachel Rodgers.

Rachel has built a law practice for GenY, vowing to do things differently and “her way.” A column on Solo Practice University describes Rachel:

When she graduated from Benjamin N. Cardozo School of Law in 2009, she decided that she was not going to let her hefty law school debt and the troubled economy stop her from practicing law her way.

Rachel uses techniques that have not been widely accepted among private law firms to gear her practice towards young business owners.

However, Rachel’s legal career has been somewhat controversial. For instance, Tempe Criminal Defense Lawyer Matt Brown wrote an article questioning her use of a virtual office in Arizona although she is only licensed to practice in New York and New Jersey. This week Brian Tannebaum and Carolyn Elefant wrote pieces concerning a few of Rachel Rodgers’s YouTube videos, where she may or may not have dispensed legal advice about forming LLCs. Brian suggested that Rachel may not have appreciated all of the risks about putting up a video like that, despite a disclaimer saying “This isn’t legal advice.” Just because you say “this isn’t legal advice” doesn’t necessarily make it so.

What I’m wondering is where Rachel is getting her mentoring advice.

A quick trip to Solo Practice University advertises:

For myself, Susan Cartier Liebel, and for thousands of law students and new lawyers who want to call their own shots practicing law right now – shuffling paper under someone else for the next few years wasn’t an acceptable option.

Solo Practice University® was created to replace the apprentice experience – without sucking up years of your life. It’s a single online destination where lawyers and law students learn the basics of running a solo practice, take classes and get expert feedback from professionals in specialized fields.

That sounds like a great idea.

But there’s just one problem – you don’t become a competent lawyer overnight. It takes time, experience, and good mentorship.

Part of the “apprentice experience” involves being told “no” and “that’s a bad idea because it will possibly get you sued for malpractice or in trouble with the state bar. Trust me, I’ve seen it happen.” It also involves being told that the practice law is adversarial, and you can’t expect clients, judges, or adversaries to be nice to you because you’re a baby lawyer.

A true mentorship experience isn’t always a fun or nice experience. It does not involve building your self esteem and being told how great you are. Sometimes it involves scaring the fear of God into you, because bad things can happen. Many young lawyers will grow up being told they’re a precious little snowflake to build their ego. A good mentor will break that ego down.

If Rachel had called a lawyer like James before hand and said “I want to put up a YouTube video about forming an LLC”, James probably would have responded “Don’t you think that it could be construed as legal advice? Even if you say it’s not? And that it could possibly have ethical and malpractice ramifications? Even if it’s not, do you really want to be answering the question before a malpractice lawyer or the state bar?”

I appreciate that James told me “no” so many times. And it’s not because James is a mean person who likes to shoot down my hopes and dreams, it’s because he’s seen “the worst that could happen” in his long legal career. He’s prosecuted professionals who have made mistakes. He has seen colleagues lose their law licenses and livelihood. If he wanted to see that happen to me, he would have said “Go for it!”

In contrast, if Rachel were to ask a legal marketer what to do, I’m guessing that the advice would probably be “Go for it! I’m sure you’ll get lots of phone calls!” Because the focus of a legal marketer is making the phone ring, not figuring out what’s the worst that could happen. Most lawyer marketers haven’t defended a state bar inquiry, handled a malpractice claim, or had to subdue an angry client. Their experience involves how to use Twitter and Facebook, and using social media to make the phone ring.

Is anyone telling Rachel “no” or “Did you consider this…?”

Which begs the question – is Rachel getting advice from a good mentor, or lawyer marketers?

[Update] A day after Brian Tannebaum pointed out why giving legal advice on YouTube is a bad idea, even if there is a cheeky disclaimer, Rachel Rodgers decided to double down and up the ante by giving really bad legal advice posting a video on how to draft your own contracts. Well, how to draft your own contracts, which you shouldn’t do, but if you do, here’s how to do it. Etc etc.

In response, here’s some free advice from yours truly: for the love of God, don’t try and draft your own contracts. Hire a lawyer in your state who will discuss your individualized needs and the current state of the law. A lot more goes into drafting a contract properly than Rachel’s video suggests.

Rest assured, there will be things you don’t think to think about. There may also be case law floating around affecting certain types of contracts – i.e., the law concerning a contract with a restrictive covenant might be different than a contract for the purchase of goods. A commercial lease might be viewed differently than a residential lease, and certain provisions might be enforceable in one context but not another. There may be certain statutes that could affect the contract. Plus, that contract you downloaded from the internet might have been good at one time, but the law changed and now it’s not. It all varies from state to state, could depend on the type of contract, plus the state of the law changes from time to time. It’s more complex than one would think. A lot of thought goes into avoiding pitfalls for the unwary. Avoiding these pitfalls is what lawyers are trained to do.

I’m sorry for the “typical lawyer” answer, but drafting a proper contract depends on factors too individualized to be appropriately addressed in a video or a blog post. In addition, a template may not address certain issues that are unique to your business, because what’s appropriate for one seemingly similar business might not be for another. (which Rachel did kind of address) For instance, what works for a supermarket might not be appropriate for a food truck, even though they both sell food.

That’s why a competent lawyer will analyze these issues and help you come up with something that fits your specific needs, and avoids pitfalls the untrained might not know about.

You see, real lawyers don’t simply sell fancy sounding documents. They research the state of the law, learn about your business, and then draft something appropriate for whatever it is you want to do. Drafting contract is not like hard boiling an egg, and there are a lot of pitfalls for the unwary, many of which depend on very specific bodies of law.

That’s why a video like this, in my view, is irresponsible. Rachel starts by saying “You should hire a lawyer” (good advice), then goes on “but  if you don’t want to do that, here’s what you should think about”. To borrow a line from Scott Greenfield: “I advise against testing to see if the electric is on with your tongue, but if you want to, here’s a video on how to do it.” The video itself gives the viewer the impression that maybe they don’t really need a lawyer, and maybe drafting a contract isn’t all that difficult. Then she omits, well, a ton of other things a person should probably look for. Because those “other things” can’t be addressed in a short video – they will depend on the specific situation, the state of the law, other factors that need to be individually tailored to one’s needs.

So, without further ado, I will tell you that, like Rachel, I think using templates is a bad idea. However, I don’t think you should try and draft important legal documents like contracts yourself. There are too many pitfalls out there that you might not know about, which a good lawyer will help you avoid.

My advice: hire a lawyer in your state who does this type of work. Period. Your business is worth spending what it would take to have a competent lawyer protect your interests. Chances are, you will save a lot of money in the long run by doing it right from the start.

I’m not saying this to keep law “inaccessible” to lay people, I’m saying it because you don’t know what you don’t know. Contract law is very complex, and varies from situation to situation. It’s often state and subject matter specific. Lawyers are professionals whose job it is to help you navigate these issues, not simply salespeople of fancy documents.

And you can quote me on that.


5 Reasons You Should Never Agree to a Police Search (Even if You Have Nothing to Hide)

February 22, 2012

5 Reasons You Should Never Agree to a Police Search (Even if You Have Nothing to Hide)

I was going to write a post like this myself today, when I found that Scott Morgan (@drugblogger) had just written this for the Huffington Post.

Remember that you have a right to say no. Generally speaking, police aren’t your friends, and they will look for any reason to arrest you.


Widener Law: Should I Attended a Dreaded T4 Law School?

February 22, 2012

Sometimes I look at my site statistics to see who is reading what. To borrow a line from Ken at Popehat, you can bare your soul to the internet and write articles you think are important, but people don’t always read them. On other hand, if you use “snort my taint” you’ll get a whole bunch of people reading your blog. Heh.

In any case, I see that I get a lot of people coming here by making inquiries about Widener Law, T4, etc.

I started at Widener Law in 2005 and ended up transferring to Temple Law after completing my 1L. Naturally, some of have said “You transferred to the higher ranked school! It had to be better! Jordan, you’re a prestige whore!”

Well, I’m gonna lay the truth down on you…

I transferred to Temple because I didn’t like living in Wilmington; I wanted to live in Philadelphia. Plus, my wife was accepted to graduate school at Temple the year I transferred. It had nothing to do with going to a T1 or a T4. Temple was also a little cheaper, even though Widener had awarded me a nice scholarship. I had applied to two schools – Temple and Penn, both because they were in the city. Penn rejected me, which in hindsight, I’m happy about because elite law schools aren’t cheap.

In my opinion, it doesn’t really matter where you go to law school unless your heart is set on getting a job in BIGLAW and becoming a partner, you want to be a law professor, or you want to be a Supreme Court Justice. (If that’s your goal, go to Harvard.) However, I’m sure you’ve read, but no law school can guarantee you a job in BIGLAW. Personally, I just wanted to be a lawyer, so where I went to school didn’t matter as long as I could sit for the bar exam.

For everyone else, I’m still of the opinion that it doesn’t matter where you go to law school – T1 or T4. 95% of the time I don’t even know where my colleagues went to school.

Now, I’m glad that I graduated from Temple Law. We have a great football program, and I had a great experience during the two years I spent at Temple Law. Temple’s career office was also top notch, and very innovative about matching law students with smaller law firms that might not participate in OCI programs. But believe it or not, I’m also glad I started at Widener. Widener offered a top notch legal education. I don’t think transferring affected my job prospects one way or another, either. I think employers after 1L looked at my grades from Widener and work experience more than the fact I was at a T1 school. I never felt “held back” because US News & World Report thought Widener should be ranked “lower” than other regional Philly schools.

What I particularly liked about Widener is that they have the moxy to fail people out. I’m still friends with many people who failed out, and they’re usually the first ones to say “I wasn’t cut out to be a lawyer.” It’s hard to make the cut at Widener, and because of that, I think they create damn good lawyers. If you don’t fail out after 1L at Widener, I’m confident that you’re not a total moron, because it wasn’t easy.

Without going into detail, consider law school admission criteria: college grades (where you get points just for participating unlike law school), LSAT scores (a purely objective multiple choice test, compared to tests in law school exams which are subjective and test your ability to communicate clearly), and the “strength” of a person’s college undergraduate institution (whatever that means). US News & World Report obviously takes into account how “competitive” admission is when ranking a law school. However, none of what they measure have anything to do with practicing law. The practice of law requires critical thinking, tenacity, ability to think on one’s feet, thick skin, public speaking skills, organization, attention to detail, and a whole bunch of other stuff that has nothing to do with the law school admission criteria.

So, at the very least, I’m not surprised that Widener Law exceeded expectations for passing the bar, because the LSAT is a terrible indicator about a person’s legal acumen.

In my experience, smaller law firms will actually take a regional graduate over someone from a higher ranked school. For example, at my first job, the partners said their biggest hesitation was that I appeared to be too “Philadelphia based” to want to truly commit to a small firm in the suburbs. James said something along the lines of “Lawyers will ultimately practice near where they live. I’d be shocked if Jordan wasn’t back in Philadelphia within two years.” At the time, I didn’t think James knew what he was talking about (a running theme here). However, I convinced them it was okay because I grew up in the suburbs. Three years later, James was absolutely right. I grew tired of commuting to the ‘burbs and I wasn’t willing to move away from the city. Most of my contacts were in Philly, and they didn’t always like the idea of hiring a suburban firm. In my opinion, a suburban based law firm will probably be better off hiring someone with ties to the area for that reason. When I left my suburban firm to work for a firm in Center City Philadelphia, one of the reasons they hired me is because I was so “Philly based.” I have contacts in the area, own a house in the city, and didn’t appear to be a flight risk. They didn’t care about my grades or where I went to law school – it was based on experience, the interview, what I could bring to the table, etc.

When I started my own practice, I relied heavily on my local contacts, family, and friends for business. Shockingly, none of my clients have ever asked where I went to law school and how US News and World Reports feels about it. If anything, I’m glad I didn’t spend my life going to private schools setting me up for an “elite” law school, because I can relate to a wide variety of people.

Something else to consider: not a lot of people get into BIGLAW, perhaps 10% of a graduating class. Of those who do, the majority of them do not make partner. There is a good chance you’ll be in “small law” (even if you start in BIGLAW). Most lawyers end up working for a small law firm, a government agency, or hanging a shingle. While an “elite law school” may be important for partnership at BIGLAW, the reality is it probably won’t apply to you. In addition, if you have clients, I doubt any law firm will care where you went to school. Even if you’re with a firm and want to make partner, would you rather promote the guy who brings in $1,000,000 a year of business, or the guy who went to a fancy law school? No brainer here. A lot more goes into what you’ll do, and who you will do it with, than what Tier US News & World Report places your law school in.

So, my advice is this if you’re worried about going to a “low ranked” law school: go to a law school in an area of the country where you want to live. For example, don’t go to American University, knowing you want to work in Philadelphia, just because it’s “ranked higher” than Temple. On the other hand, don’t go to Temple if you’re dead set on working in Hawaii. (wish I would have thought of that seven years ago…)

Try and keep your debt minimal, and to keep your grades up.

Try and get substantive work experience at a law firm, even if it’s not a “prestigious” one. Nothing will scare a small law firm more than “Um, what is a Complaint? What are interrogatories?” Try to learn some basics of litigation so you don’t give the impression that you’ll be a time sink of training. (Don’t worry, you will be. I clerked all through law school and still didn’t know jack coming.) Working will also help you generate contacts in the industry who will refer work to you.

Make as many contacts as you can that are other lawyers if you’re worried about finding a job. One example – when I left my first firm, I had a hand in hiring my replacement. (at a small firm, you’ll do everything). We put an ad on Craigslist and got too many resumes to sort through. I called around and asked Leo if he knew anyone good who was looking. Leo said he did, and eventually my former firm hired that person based on Leo’s recommendation. Networking is random like that. If you know enough people and ask around, there’s a chance something might just fall in your lap. And get this — my former firm didn’t care where the new hire went to law school, just that they were likable, enthusiastic, and interested in their work. Didn’t even ask for a transcript. (and they didn’t ask for a transcript when I started there in 2008). Shocking, I know.

The practice of law is a marathon, not a sprint. You could make six figures right out of the gate and get laid off. You could start out in small law making $35k a year and then land a huge personal injury case. You might start in family law and then switch to commercial litigation at some point. Ultimately, I firmly believe that one’s career is decided by reputation. Not by law school.

On the same note, don’t go to law school because you think it’s a ticket to easy money right out of the gate. Don’t whine that your law school tricked you into going, either. Those who graduate from a T4 and pass the bar exam are still called “lawyer”. What you do with that is entirely up to you. It takes many years to develop a lucrative practice where good clients will pay you big bucks to represent them. Anyone who thought otherwise chose to fool themselves.

If you’re curious, most of my friends from Widener Law are gainfully employed in the legal profession. Same with my friends from Temple Law. Most of the weird or annoying people are not.

Finally, this might shock you, but most real lawyers don’t even follow US News & World Report law school rankings. I can’t even tell you where my own law school is currently ranked. I have a general idea of where the local law schools fall, and they’re all pretty much the same to me. However, I couldn’t tell you what tier most out of state law schools are in, except maybe Harvard and Cooley. Law school rankings are stuff that students talk discuss frequently. Lawyers, not so much.

So, that’s my two cents. I don’t think graduates of Temple, Rutgers, or Villanova graduates have a huge advantage over Widener graduates just  because of US News & World Report’s rankings. I can tell you that you’ll get a good legal education at Widener. What you do with it, well, that falls on you.


An Open Letter to Villanova University

February 21, 2012

Veritas, Unitas, Caritas: It Means God Hates Gay People

Dear Villanova University:

I’ve always believed that we should “[s]peak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.” Proverbs 31:8

However, I am concerned that you are getting away from your Catholic roots, based on some recent current events.

For example, the university has consistently allowed those who advocate for the death penalty, foreign wars, for giving less aid to the needy (we call them Republicans where I’m from) to speak on campus — even though these views fly in the face of Catholic Social Teaching (what I minored in at Villanova). Shockingly, Villanova has even allowed people to speak on campus who are against providing universal healthcare and opposed to providing people with a living wage. In fact, Villanova even sponsors organizations that openly supports all of these very anti-Catholic beliefs, and even allows them to use campus money!

Now, I’ve always assumed that Villanova only allowed such hypocrites to remain on campus in the interest of freedom of speech. Sure, the Church teaches that Catholics should strive to help the poor, promote accessible healthcare, and to oppose the death penalty. And just because some misguided souls choose to defy these very clear Church teachings on important social justice issues, as an academic institution, we have to be tolerant of their misguided beliefs. As much as we know their views are wrong and downright mean spirited,  it’s important to allow them to hold these views and discuss them openly. Even though Jesus would probably find them appalling. I mean, the Bible was pretty clear that: “He who despises his neighbor is guilty of sin; but happy is he who has mercy on the poor!” (Proverbs 14:21)

That’s why I was a bit surprised that an openly gay artist, Tim Miller, was banned from performing on campus without a good explanation. Sure, homosexuality isn’t exactly endorsed (sometimes) by the Catholic Church, but the University has allowed organizations like the College Republicans to remain on campus despite ideals that are contrary to Catholic social justice.

I think it’s worth noting that the Bible spends a great deal more time discussing tolerance, charity, and love of your fellow man than it does condemning homosexuals. And plus, we all know that Leviticus said a lot of silly shit, most of which is now disregarded. So you’ll have to pardon my candor, but the whole anti-gay thing is kind of perplexing to me because I’ve always thought that “God does not see as man sees; for man looks at the outward appearance, but God looks at the heart.’ But I suppose the opinion of honorable men may differ.

In any case, this leaves me a few questions: why is it okay only for some organizations to have beliefs that the Church doesn’t agree with to remain on campus, while banning gay people like Mr. Miller? If you’re going to forbid gays from teaching classes at the University because their sexuality doesn’t jive with Catholic Social Teaching, shouldn’t you also ban anyone who supports the death penalty, opposes universal healthcare, or eats shellfish? I know that would also ban, well, about half the students and a good deal of the clergy. But it’s all good because God loves us and is forgiving.

But more importantly, wouldn’t you agree that who a person chooses to have sex with isn’t nearly as important as striving a world that is just for everyone…? And wasn’t it God himself who said: “Because of the oppression of the weak and the groaning of the needy, I will now arise, says the Lord, I will protect them from those who malign them.” Psalm 12:5

Given that’s the case, why does the University sponsor organizations openly opposed to social justice while banning artists who are openly gay? Why is who a person chooses to sleep with more offensive than those who are opposed to Catholic social teachings focused on helping the needy?

And really, shouldn’t we stand up for the weak, like our openly gay brothers and sisters? And all of our gay brothers and sisters forced to remain in the closet for fear of repercussion? Does it really matter who they choose to sleep with?

Lord knows the University is tolerating some downright anti-Catholic stuff. The important stuff.

So if we’re going to break the rules, let’s at least break the stupid ones.

I’d appreciate a response.

Sincerely,

-Jordan Rushie, Liberal Arts, Class of 2005

[Update] Father Peter has responded to all the negative criticism. (For the record, I like Father Peter a lot. He’s a good dude. That said…)

I read Father Peter’s response as: “Dude, we don’t care that you’re gay, it’s just that you’re acting like a fag.”

Don’t be gay, Sparky. Don’t be gay!

[Second Update] Bryn Mawr college did the right thing and decided to host Tim Miller. I guess Bryn Mawr’s administration feels that their students are mature enough to handle adult content…


Joseph Rakofsky’s Latest Set Of Papers Denied Rather Unceremoniously By Appellate Division, Even Through He Tried REALLY Hard. Ouch.

February 21, 2012

The Appellate Division denied Rakofsky’s motions without an opinion. Brutal. They didn’t even spell his name right.

Click the image to make it bigger.

This is especially funny because he told the court he tried REALLY hard and did a REALLY good job. According to Paragraph 21- 22 of Rakofsky’s reply papers:

In December of 2011 I filed an elaborate, carefully designed, proposed Order to Show Cause (which is now before this Court). Supreme Court deemed it to be “incomprehensible” and declined to sign it.

Each time I spent an enormous amount of time drafting documents; each time I incurred substantial expense to prepare, copy and serve documents; and each time relief was denied.

Maybe next time the court will give him a gold star for effort.


Lawyers Make Friends on the Weekend

February 18, 2012

My first deposition was a disaster. I realized that about 20 minutes into it, although I should have known it right at the outset. Hell, I should have known it much earlier… because it all went wrong starting with the preparation.

I had been in practice for a little over a year. At one point, my boss James had asked if I would be up to take my first deposition on my own. Awesome. I told him I would be, and I’m thrilled to be taking on more responsibility. James told me to read the rules carefully, read some old transcripts, and to come to him with questions. He stressed how important the preparation was. “People think that they can just wing it at depositions, but I don’t. Maybe I’m just not that smart.  I think you should come up with a spreadsheet of permissible objections, because opposing counsel has a reputation for being both a good litigator and a ballbuster. He’s going to test you.”

Unfortunately, I got busy. Looks like the preparation would have to be condensed. I had sat in on a few depositions so I knew the drill, or so I thought. The night before the deposition, I read a few other deposition transcripts and came up with an outline. Depositions didn’t look like rocket science from reading old transcripts. You ask questions. How hard can that be? I knew the facts of the case and had an idea of what we wanted to get out of this witness. Maybe I should discuss it with James, but he’s always so critical of me. Best avoid James’s criticism.

Whatever, I got this…

That morning, opposing had counsel sized me up instantly when I walked through the door. Fresh haircut and a pressed suit that practically had the tag on it. He knew I was a baby lawyer.  Hopefully he’d be nice and pick up that this was my first deposition.

We made pleasantries for a few minutes. Yeah, great Eagles game, yeah riding SEPTA is terrible, yeah the weather. Alright, seems like a decent guy…

Then the room went quiet. Everyone was looking at me. Opposing counsel broke the silence:

“Usual stipulations?”, counsel asked.

“Uh, yeah, sure.” Whatever that means. Just play it cool, he thinks you’re a real lawyer. You can do this, Jordan. Oh God, can he hear my voice cracking? Can he see the sweat on my brow? Deep breath.

The court reporter swore the witness in and the deposition began. I started sweating more and my throat felt parched.

I began by mimicking some of the introductory questions from the old transcripts.“You’re under oath, and you understand that, right? Are you on any drugs today? Is there any reason you can’t testify truthfully?” Okay, I still sound like a real lawyer. Good.

Then we got into the meat and bones of it. Unfortunately, opposing counsel could sense my weakness. He could smell it. He was feeding off it, and he was going to take full advantage of it. Every time I tried to ask a question, there would be a flurry of objections: “Objection to the form! The witness has already answered that question! Further, you’re assuming facts not into evidence, and it calls for hearsay!” At one point, he threatened to call the judge and ask for sanctions if I continued down a line of questioning.

Can he do that? Is that legit? I think these questions are fair, but I’d hate to get the judge involved… I must be asking the questions wrong. Oh God, I’m so green, I have no idea what I’m doing. And they all know it, too. The court reporter, opposing counsel, and the witness. And what’s worse, now the witness is treating me like I’m an idiot. He practically told me my last question was stupid. He chuckled when I asked it.” I started turning red and became visibly frustrated. Why is he doing this to me? Is he some sort of sadistic asshole?

What had seemed so simple last night — ask lots of questions — suddenly didn’t seem so simple. I just wanted to be out of there. I had no idea what was permissible and what was not permissible, what kinds of questions I could ask and what would make a judge angry.

I cut my questioning short. Time to knock off and have a drink after that…

A few weeks later I got an email from James:

“Jordan: I reviewed the Smith deposition transcript. I would appreciate an hour of your time to discuss it. Please mark my organizer with a time you are available this week. Thanks. James.”

James’s emails were always so short and to the point. I could never tell if he was pissed off or if he just wanted to bounce around an idea. Hopefully the latter. I went to see him to discuss…

“Sit down, Jordan. Do you want this American-style or German-style?”

“Um… American-style?”

“Well, I don’t really care what you want. What the hell is with this deposition? It was awful! If I had known you were going to do this bad a job I never would have sent you. This is just… terrible. Bad. And that’s putting it mildly. What happened?”

I was angry. I felt like I had been taken advantage of by an older lawyer with more experience who was a jerk. How could he do this to me?

“James, opposing counsel railroaded me. He was such an asshole. Pardon my French, but a real fucking asshole. I was so nervous and he wouldn’t shut up with objections. Can you believe that? Maybe we should move for sanctions. He screwed me.”

It felt so good to vent. I had been wronged, but we would make it right.

“Oh, I see. It’s all opposing counsel’s fault…”

“Yes! He’s such an asshole.”

James went silent, and then looked at me. His face turned to that of pure and utter disgust, and his demeanor turned to angry.

“Actually”, James said, raising his voice, “it’s your fault. You didn’t read the rules. You had no idea what you were doing, and I can tell from reading the transcript. For instance, you agreed to the usual stipulations, but then he’s objecting on page 27 that you’re ‘assuming facts not in evidence.’ There are standing objections all over the place. On page 33 he’s objecting to hearsay. Hearsay? You didn’t call him on that? You agreed to reserve all objections for trial, but then you let him get away with a hearsay objection? In a discovery deposition! I would ask you why you didn’t stand up to this clown, but from reading this, I don’t think you could have — you had no idea what was going on. Did you bother to read the rules? Do you even know what the usual stipulations are? Did you make a spreadsheet like I told you to?”

“Errr, not exactly. I read the old transcripts you gave me. I saw ‘usual stipulations’, but didn’t know what it meant. I thought everyone just said that.”

“And you didn’t come and ask me what it meant?”

“Um… no.”

“So let me get this straight. You didn’t read the rules and you didn’t ask me anything. You just glanced at a few old transcripts the night before and thought it would be fine. In your first deposition. Who needs to know the rules, right?

What were you thinking?”

“I thought… I just… I don’t know… I’ve seen a few before… I’d just go with the flow, I guess… ask questions… but James, opposing counsel knew I was young, he shouldn’t have been such an asshole! I bet he knew this was my first deposition!”

“Am I supposed to be impressed with that?

How dare you blame someone else for your shortcomings. I don’t give a shit if this is your first deposition or your thousandth. Opposing counsel did what he was supposed to do. You did not, and you’re sitting in my office sniveling like a whining baby, acting like it’s his fault when its yours. You were too big of a wuss to stand up to him because you didn’t know the rules well enough to do it. You’re complaining that he wasn’t nice enough to you, and that he should have been gentle because you’re young. To me that suggests you’re complaining that he didn’t accommodate you. That’s pathetic. Pathetic! It falls on you to prepare appropriately for these things, and no excuse for failure is acceptable. Period.

Older lawyers have no obligation to be nice to you just because you’re young – it falls on you to get up to speed to do your job competently.

Think about this – is opposing counsel supposed to go back to his client and say “I could have kept out important testimony because the kid on the other side had no idea what he was doing, but that would have been mean of me so I didn’t do it”? How could he go back to his client with that? This isn’t about being the nicest guy in the room, it’s about winning football games. It’s about advocating for your clients. The process is “adversarial.” If you expect people to be nice to you, do something else. Because you’re not going to find that in law. And I’m not saying you should never grant an extension or a professional courtesy, but your goal is to win the case – not to make friends.

Blaming your adversary for your lack of preparation shows poor judgment and the wrong attitude on your part. We’re here to represent clients, not to make friends. Make friends on the weekend!

Kid, you’ve got a lot of growing up to do. And if you ever come into my office again and blame opposing counsel, or anyone, for not being “nice” to you because you’re a young lawyer, you are not going to have a job here. I expect you to get up to speed on every assignment and every task, and to be a competent lawyer like you are supposed to.

Now get out of my office. We’ll discuss the mechanics of a deposition later, but I’m too disgusted with you to continue this conversation.

And next time you come to my office, come back as a man, not a child. This isn’t a daycare, it’s a place of business. I’m not here to babysit you.”

After that tongue lashing, I would never “just wing” any proceeding ever again.

I would also never expect anyone — especially not opposing counsel — to be “nice” to me. Even though I’m young. At the end of the day, a lawyer’s job is to win. That goes for everyone. Making friends and being nice would be reserved for the weekends…


What I do: Social Media Expert for Lawyers

February 17, 2012

Click to enlarge the image. Yes, I made it.


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