Legal Blogs Boiling?

September 29, 2006

The ABA Journal E-Report had an interesting article on the most recent attempt to classify legal blogs as advertising.

N.Y. Proposal Would Designate Lawyer Blogs as Advertising

The legal blogs are boiling:

* “We go around passing rules that make us look like idiots.”
* “We continue to handicap and bring everyone into the trenches.”
* “The small firm can’t afford [this].”

The storm was set off by a proposal that “computer-accessed communications” such as blogs be included in New York’s definition of legal advertising, and therefore require state scrutiny.

Click on the heading to read the full article. There apparently continues to be a misunderstanding between those who use the medium and those who make the rules. I think the whole issue can best be described as; “All advertising is marketing. Not all marketing is advertising.” Although Kentucky has apparently resolved its issues on the topic, (See update by Ben Cowgill), this issue looks like it will continue to generate heated debate as other states cope with the issue.

The 6th Circuit Blog posted an interesting analysis regarding the disclosure of work product provided to expert witnesses:

In a ruling of first impression in the Sixth Circuit on whether attorney opinion work product given to expert witnesses is discoverable under Rule 26 of the Federal Rules of Civil Procedure, the Court joined the Federal Circuit and a majority of district courts in holding that the expert disclosure requirements of Rule 26(a)(2)(B) establish a “bright-line” rule mandating the disclosure of all documents given to testifying experts, specifically including attorney opinion work product.

In affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.

Click here for the entire post.

Just a reminder, effective September 1, 2006, all pleadings filed in Kentucky Federal Courts must be filed using the Electronic Case Filing System (ECF). Members of the bar must register with the individual court. You will be given a log in and password. This information is different then the PACER log in and password you may have already obtained. It is estimated that in excess of 89% of Federal Courts use ECF, many mandatory. Easy to use and no more late night drops at Federal Court! Click on the link to find information about ECF registration, training, and filing with the US District Court for the Western District or the US District Court for the Eastern District.

The Supreme Court has denied discretionary review in the case of Gibson v. Morely, involving a Grade I open lateral tibial plateau fracture. There the Court of Appeals affirmed the trial court’s denial of plaintiff’s motion for new trial, ala Miller v. Swift. You may recall my feelings that if there was going to be any substantial ruling affecting this issue, that it was going to come from this case. Well, it is clear that there is not going to be “any substantial ruling.” This would appear to be the final analysis of the Miller v. Swift medicals but no pain and suffering cases.

It appears that the Supreme Court has, by its silence, adopted the position that an award of medicals but no pain and suffering is not inconsistent under practically any circumstances. (If it is not inconsistent in this case, it never will be.) At least, the Court has decided not to second guess trial judges on this issue. The judges have sat through the trial and are apparently in the best position to determine whether or not the award is “inconsistent.” Given a trial judge’s docket these days would he ever offer a plaintiff a second bite of the apple when they have had their “day in court?”

While I don’t necessarily disagree with this result, I do disagree that it came without so much as a whimper from the State’s highest court. Courts often allow jury verdicts to stand, despite the result. Often it is in the best interest of finality and economy, that they do so. However, I think that this case was a good case to set limits or explain the lack of limits on this issue. This issue is apparently clearer to the Supreme Court than those of us practicing. They see no need to explain further. They could have just said so.