Thursday, January 19, 2017

They Warned us

As we celebrate the peaceful transition of power America is known for, there is some regret that Trump thinks we are celebrating him. #He'sAnEgotisticalIdiot

Disturbing demographic statistics from Google ... about my blog readers.  67% percent men, 13% women, 40% confused.

A positive benefit of a Trump presidency will be our nation's forced focus on mental issues.

Bush married 72 years. How Un-Trump like. America wishes the Bush's a speedy recovery. 

Third record breaking year in a row for our planet climate-wise,  in the history of the world, or as Republicans call it, seasons.

Perry to be grilled today in Congress.  No real sport in shooting fish in a barrel. Steel up Texans and be ready for humiliation. #Oops.


This is how I remember the Alamo.  My son Tom when he was alive.




Working for me is not always bad.


Earth Sets a Temperature Record for the Third Straight Year


Surface temperatures are heading toward levels that many scientists believe will pose a threat to both the natural world and to human civilization.

The latest satire from Andy Borowitz.

The New Yorker

Not the news.
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Moving Vans Arrive at White House to Remove All Traces of Competence, Dignity


To be fair, the Republicans warned us.


Fake news on Facebook will not be a problem for lawyers and the American public

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There has been a lot of discussion of late about fake news on Facebook.
Some folks believe fake news affected the outcome of the presidential election. One law professor recently told me that most of the stuff on Facebook was fabricated. It won’t be too long before I’ll be at conference where lawyers will be told to stear clear of Facebook because of hoaxes and fake news.
Big mistake. Less than one percent of news and information on Facebook is fake. That’s probably about the same as mainstream media.
Also not to be lost on you, as a lawyer, is that Facebook has almost 2 billion users, and that 44 percent of Americans get their news from the social network. If you’re not sharing information and commentary on Facebook you’re missing a huge opportunity.
I’m with Mark Zuckerberg who recently posted,
Of all the content on Facebook, more than 99% of what people see is authentic. Only a very small amount is fake news and hoaxes.
Having said that, Zuckerberg is looking to limit the fake news that there is and show people that they will find meaningful content and accurate news on Facebook.
Zuckerberg knows he must proceed carefully when you get into “the truth” and censorship, let alone Facebook’s desire to maintain its status as a technology company and avoid the responsibilities that come with being a media company.
Identifying the “truth” is complicated. While some hoaxes can be completely debunked, a greater amount of content, including from mainstream sources, often gets the basic idea right but some details wrong or omitted. An even greater volume of stories express an opinion that many will disagree with and flag as incorrect even when factual. I am confident we can find ways for our community to tell us what content is most meaningful, but I believe we must be extremely cautious about becoming arbiters of truth ourselves.
David Pogue, reports in Scientific American this week that Facebook has already taken action.
  1. If you tap the V button at the top right of a post and then choose “Report this post,” you’ll see a new option called “It’s a fake news story.” On the next screen, you’ll have a choice of options, including “Mark this post as fake news.” (Other options include “Message Chris Robin” [or whomever posted the story] to let them know they fell for it.)
  2. If enough people flag a story as fake, it will be sent to a fact-checking organization like or PolitiFact. And if the outfit determines that yes, the story is bogus, it will appear on Facebook with a red banner that says, “Disputed by Third-Party Fact Checkers.” That banner will include a link to the fact checkers’ article explaining why the story is false. The stories still appear, but with flags that identify them as phony and lower in your News Feed.
  3. Facebook will employ software and algorithms to help identify fake stories. For example, Facebook has learned that when lots of people read a certain article but then don’t share it, it’s often because the story is phony.
  4. Facebook is trying to shut down the financial incentive for fakers. Its engineers have eliminated the ability for the fakers to create Web sites that impersonate actual news sites, for example. And the company will analyze sites that draw ad dollars from Facebook traffic, and will cut them off if they’re in the business of fake-news fraud.
Though cynics argue that fake news generates eyeballs and ad revenue for Facebook, people use Facebook because of the value it brings to their lives. Value comes from accurate information and news — and the engagement that ensues.
Gaming a popular site is not without precedent. A whole SEO industry has sprung up to game Google in an effort to get Google users to visit third-party sites lacking valuable information. Through software and algorithms, Google reduced the junk to a minimum – enough so that the world uses Google as the leading source of information — including lawyers for a lot of legal research.
The above four steps are just a start, Facebook has the brightest social engineers in the world working for them. If anyone can eliminate fake news, they can.
How we receive news and information has changed dramatically in the last decade. Television news, newspapers and news websites carried the day five or six years.
Today, people receive news socially – from people they trust. Facebook, as the largest social network is likely to become the leading source of accurate news and information for Americans.

President Yahya Jammeh of Gambia was greeted by supporters as he arrived at a campaign rally in November, about a week before the election.
President's Term Running Out, Gambia Shudders as He Refuses to Quit


The president's refusal to accept his electoral loss to Adama Barrow, after initially doing so, threatens to drag the nation into a bloody standoff.




Student Loan Collector Cheated Millions, Lawsuits Say


Navient made serious mistakes at every step of the loan collection process, the Consumer Financial Protection Bureau said in a lawsuit.


Capitol US Capitol building
Tomorrow, Donald Trump will become our President. There are a lot of people who can and should be afraid of that. LGBTQ folks. Anyone not in the country legally. Good people. Anyone who would rather not see the United States default on its debt. China. One group that should be uniquely afraid: federal workers. Republicans […]


A Legendary Litigator Jumps From Biglaw To Boutique

James Quinn
James Quinn
Where do you go after spending more than four decades at one of the world’s leading law firms? The golf course might be the answer for many — but not for James W. Quinn, who left Weil Gotshal & Manges to join the New York office of one of the nation’s top litigation boutiques, Berg & Androphy.
During his time at Weil, Jim Quinn handled some of the firm’s biggest cases, including a number of headline-making sports law matters. He also served in firm leadership, as longtime head of the litigation department and as a member of the management committee. At Berg & Androphy, which he joins as of counsel, Quinn will continue to try cases and also expand his mediation practice.
If you spend even a small amount of time with Jim Quinn and David Berg, founding partner of Berg & Androphy and a top trial lawyer himself, you’ll be struck by their easy rapport. They finish each other’s sentences, interrupt one another frequently (without getting on each other’s nerves), and generate lots of laughs. You’d think they had been partners for decades.
And in a sense they have. They first worked together in the mid-1990s, defending Westinghouse Electric Corp. at trial against allegations that it provided a nuclear power plant in Texas with faulty generators that were leaking radioactive material.
Working as co-counsel doesn’t always generate close ties, but it’s more likely to when you spend as much time together as Quinn and Berg did. “There’s no bonding experience like a jury trial,” as Berg told Gabe Friedman of Big Law Business — and that’s especially true when the trial lasts for six months and takes place in Bay City, a tiny town in southeast Texas.
After that matter ended successfully, Quinn and Berg stayed in touch, both personally and professionally. As Berg mentioned to Brian Baxter of Am Law Daily, Quinn would sometimes refer work that he couldn’t handle at Weil because of conflicts — including one case in which Berg obtained a $420 million settlement from Marriott.
David Berg
David Berg
A few years ago, Berg started to spend more time in New York City, mainly for personal reasons. In July 2015, Berg & Androphy launched a New York office, led by former Kasowitz Benson partners Michael Fay and Jenny Kim. In the middle of last year, Quinn and Berg started exploring the possibility of Quinn coming on board.
Now it’s official — and it makes perfect sense. Although Quinn has been recognized as a “legendary litigator” by the Legal 500, the “L word” doesn’t do him justice; he is a true trial lawyer, one who brings cases before juries — and wins. So he’s a great fit at Berg & Androphy, a firm full of seasoned trial lawyers — including David Berg himself, described by one former general counsel as “the St. Jude for bet-the-company cases.”
Berg and Quinn hope to try cases together once again, although they recognize that the litigation environment isn’t what it was back in the 1990s. The major change: many fewer cases go to jury trial. About 1 percent of federal cases reach a jury today, compared to more than 10 percent back in 1962.
I spoke with Berg and Quinn by phone earlier today — while Quinn was on break from a mediation, showing that he’s not missing a beat as he transitions from firm to firm — and I asked them: what’s behind this trend of the vanishing jury trial, and what can be done about it?
“One of the main causes is that folks have gotten more risk-averse, especially when it comes to going to trial before a jury,” Quinn said. “It’s due in large part to the enormously increased cost of going to trial, especially in large commercial cases. I personally think it’s unfortunate. As for the likelihood that it can be reversed, I’d love to see that, but I’m not confident it can be.”
Some of the fault for the decline of trials can be assigned to the U.S. Supreme Court, Berg said. In a series of cases, covering such subjects as pleading requirements, the standards for granting summary judgment, and alternative dispute resolution (especially arbitration), the Court “has created procedural hurdles that do an end run around the Seventh Amendment right to a civil jury.”
Another culprit, according to Berg: the Chicago school of law and economics and one of its leaders, legal academic turned Seventh Circuit judge Richard Posner. Although Posner is “so smart and funny, I kind of hate him,” the economic analysis of law that he pioneered “has really undermined the law, especially for the little guy.”
The declining number of jury trials led us naturally to chat about alternative dispute resolution — particularly mediation, which Jim Quinn will focus on at Berg & Androphy. He couldn’t resist referring me to the website for his mediation practice, JW Quinn ADR LLC (which led Berg to humorously mutter, “Just stand outside in a sandwich board!”).
“One of the reasons I started my mediation practice is that so many of these major commercial cases are being mediated,” Quinn explained. “Mediation doesn’t always lead to settlement, but there’s almost always going to be a mediation, sometimes as a matter of course. As a result of mediation and other forms of ADR, there are fewer and fewer cases available to go to trial.”
A desire to grow his mediation practice was a big part of Quinn’s decision to leave Weil for Berg & Androphy. As he explained to both Am Law and Big Law Business, working at a Biglaw firm like Weil Gotshal, while wonderful in many ways, can create a perception of being too closely tied to large corporate clients. Because one key to being a successful mediator is getting the parties to trust you early on, such perceptions, even if inaccurate, can be limiting.
James Quinn is far from the only prominent lawyer to leave a Biglaw firm for a boutique. I asked him for his outlook on the future of Biglaw. Does he buy into the predictions of doom, or at least those of a massive winnowing of hundreds of firms down into dozens?
“There will be some winnowing in the middle ranges,” Quinn said, “but Weil and the established firms will continue to thrive. They have the ability to bring together a huge amount of legal firepower, not just in litigation but also in various types of corporate law, which large companies will continue to want for the things that really matter — the biggest deals and litigations.”
Of course, Jim Quinn cautioned, some Biglaw firms have true trial lawyers, and some do not. If you are a client looking for a firm to represent you in a matter that might go to trial, you need to make sure that the firm has true trial expertise — like Berg & Androphy.
“Jim and I look forward to trying some cases together,” David Berg said. “We did very well the first time, and I suspect we’ll do fine in the future. What made this happen is that we have a great deal of respect for each other’s trial skills. In fact, I think Jim worships me.”
“As far as our trial skills go, David’s great,” Quinn said. “But I’m greater.”
Spoken like true trial lawyers. Best of luck to James Quinn and David Berg as they enter the newest chapter of their long and illustrious careers.
Earlier5 Litigation Lessons From Joe Jamail’s Trial Strategy In Pennzoil v. Texaco


Sessions' statements suggest big shift in civil rights enforcement

Jan 19, 2017, 9:36 am CST


Houston Attorney Wins Appellate Ruling that Client's Mental Illness Wasn't Relevant Evidence, Adding $400,000 to Judgment

, Texas Lawyer

David George, partner in Houston's Baker Wotring.
David George, partner in Houston's Baker Wotring.

Mary Turner's difficult life ended when she was mowed down by an 18-wheeler driver who didn't see her as she crossed a street. But what would normally be a straightforward legal claim against a trucking company was complicated by the fact that Turner suffered from mental illness and drug addiction.
Not only did Houston appellate attorney Dave George help preserve a wrongful death jury verdict recently by convincing a court that Turner's mental illness and drug use did not belong in evidence, he also convinced the judges to add $400,000 to his clients' recovery.
The background to the San Antonio Fourth Court of Appeals' recent 2-1 decision in JBS Carriers v. Washington is as follows, according to the majority opinion.
Turner was killed in 2012 when she was struck by a tractor-trailer driven by an employee of JBS Carriers. A security camera at a convenience store across the street captured the accident as she slowly walked into the intersection and was struck by the driver who had been in a dispute with another motorist while stopped at a red light.
Turner's family successfully sued JBS and its driver for wrongful death. At trial, a jury attributed 50 percent of the responsibility for the accident on the driver, 30 percent on JBS and 20 percent on Turner. The jury awarded $900,000 in damages to Turner's surviving children and $500,000 to Turner's estate for pain and suffering. The trial court affirmed the jury's decision but omitted the award to Turner's estate.
JBS and the driver appealed the verdict for several reasons, including the allegation that the trial court erred by excluding evidence of Turner's paranoid schizophrenia and bipolar disorder and her history of drug abuse. Turner's family filed a cross-appeal alleging that the trial court had made a mistake in calculating the damages the jury awarded — including failing to make an award to Turner's estate.
And in it's Jan. 11 decision, the Fourth Court affirmed the trial court's evidentiary rulings but remanded the case back to the trial court to add the damage award to Turner's estate back into the judgment.
Most importantly, the Fourth Court ruled that the trial court was correct in excluding evidence of Turner's mental health and drug use under Texas Rule of Evidence 403. That rule provides that relevant evidence may be excluded from a case if its "probative value is substantially outweighed by the danger of unfair prejudice."
In her majority opinion, Justice Karen Angelini wrote the trial court was correct in excluding the evidence of a physician hired by the defense who reviewed Turner's medical records and testified about how her history of mental illness and drug use made her negligent in the case.
The doctor based his testimony on medical records made over two months before the accident. "His trial testimony linking Turner's medical records to her specific state of mind on the day of the accident was weak, and in his deposition, he admitted he could not testify about Turner's state of mind on the day of the accident," Angelini wrote. "Further, the security camera footage of the accident does not show Turner acting erratically."
Justice Marialyn Barnard dissented, arguing the trial court erred in excluding evidence of Turner's mental health conditions and her drug use, writing that such evidence was crucial to determining proportionate responsibility. She noted that if the defendant driver suffered from similar mental conditions, the trial court would have found the evidence admissible.
George, a partner in Baker Wotring who represents the plaintiffs on appeal, was pleased the court treated evidence of Turner's mental illness with sensitivity given the stigma the disease has. The defense failed to prove that Turner's mental condition was related to the accident — something the appellate court recognized, he said.
"It couldn't be linked. They just wanted to say she had schizophrenia, therefore she was negligent," George said. "In some trials the whole point is to make the jury feel badly about the other side."
Dan Pozza, a partner in San Antonio's Pozza & Whyte who represents JBS and their driver on appeal, believes the Fourth Court misapplied evidence Rule 403 in the case.
"The standard is that the rule should be used sparingly as relevant evidence carries a presumption of admissibility," Pozza said. "The dissent makes a telling point by noting that had JBS's truck driver tested positive for cocaine and alcohol and suffered from a mental health disease, that evidence would have been admitted. And should be."
George said he was particularly pleased that he convinced appellate court to add in the award to Turner's estate. After taking a 20 percent reduction for Turner's proportionate responsibility, the ruling returned $400,000 the plaintiffs' judgment for a total of about $1.1 million in damages.
"As an appellate lawyer I represent plaintiffs and defendants and large corporations. But it's pretty rare where you can take a personal injury verdict and actually increase the plaintiffs' victory at the court of appeals," George said. "That's the part that gives me a lot of satisfaction — that we were able to put that back in for the family.''



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