On Tuesday, I followed attorney Lisa Solomon through New York LegalTech.

Part 1: Blogger’s Breakfast and Social Media session

3 Tips from “Technology and Social Media” session:

• You don’t get what you don’t ask for.  Have a call to action on your website.
• Make your website interactive.  Ask people to do something, i.e. subscribe to your blog, download a white paper, etc.
• Engage in conversation.  Also strive to be the subject of the conversation by providing valuable content to a targeted audience.

Part 2: Exhibit Hall and Meetup dinner for solo and small firm attorneys

Touring the exhibit halls, Lisa:

• Learned about collaboration tools available on WestlawNext
• Met company representatives for services and products that she uses
• Provided a testimonial for service she has happily used for years

At the end of the day, Lisa hosted a Meetup dinner for solo and small firm attorneys at a local restaurant.  It was a great opportunity to meet with colleagues and make new connections.  I personally enjoyed being a part of the festivities – from great company to amazing food!

The overall tip to take away from Lisa: “Meet people and try to do some networking.”

Despite being touted as one of the world’s oldest democracies, the United States doesn’t have a great voting record.

That is, with regards to voting rights, the U.S. has been less than fully inclusive.

At the time of the country’s founding, with rare exception, only white male property holders (i.e. the rich) were allowed to vote.

The struggle for more expansive voting rights wasn’t an easy one, either.

In fact, it was almost 100 years after the nation’s founding until it was illegal to deny a citizen’s right to vote based on race or color.

Moreover, such a reform was only possible due to the suppression of most of the opposition after the U.S. Civil War.

That expansion of voting rights came in the form of the Fifteenth Amendment to the U.S. Constitution, and it was ratified 142 years ago today, when Iowa became the 28^th state to ratify the Amendment on February 3, 1870.

The text of the Fifteenth Amendment is short and simple:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The second section states that “Congress shall have power to enforce this article by appropriate legislation.”

Perhaps tarnishing this accomplishment in voting rights is the fact that the Amendment is a watered down version of versions originally finalized in the House and Senate.

For example, the original Senate version protected against discrimination not only of “race, color, or previous condition of servitude,” but also of any “previous condition,” either of the citizen himself or his ancestors.

Likewise, the original House version expanded protections prohibited discrimination based on “nativity, property, or creed.”

Neither of these broader versions was used because legislators (accurately) believed they wouldn’t be ratified by the required three-fourths of the states.

Why?

Frankly, because, although states outside of the South were fine with blacks having the right to vote, many states still wanted to discriminate against other groups.

States in the North, such as Connecticut, Massachussetts, and New York, wished to continue discrimination against Irish immigrants, and would never have ratified a constitutional amendment that banned discrimination based on “nativity.”

Similarly, many Western states wanted to continue to discriminate against Chinese immigrants.

For instance, although Nevada was the first state to ratify the Amendment, it was only after assurances from U.S. Senator William Morris Stewart that it didn’t apply to Chinese immigrants, whom the state could continue to discriminate against.

However, the possibility of Chinese suffrage under the Amendment, no matter how slight, was enough for California and Oregon to soundly reject it (Oregon eventually ratified it in 1959, as did California in 1962).

And, even though the watered down version of the Fifteenth Amendment was eventually ratified, several former Confederacy states (Virginia, Mississippi, Texas and Georgia) were required to ratify the Amendment as a precondition to their having congressional representation.

Even after its ratification, most Southern states still found ways to effectively stop blacks from voting, including using literacy tests and grandfather clauses.

It wasn’t until the passage of the Voting Rights Act in 1965 – almost 100 years later – that such practices were barred entirely.

Section 5 of the VRA remains contentious even today (see this post for more), and if the recent outbreak of voter ID laws is any indication, deciding who can vote is an ongoing struggle in America.

But, as the passage and ratification of the Fifteenth Amendment has demonstrated, any expansion of voting rights in the U.S. doesn’t come easily.

Where God and man collaborate in causing flood damage, man must pay at least for his share of the blame.
Mark Downs, Inc. v. McCormick Properties, Inc., 441 A.2d 1119 (Md. Ct. Spec. App. 1982)

In fact, while lamenting the medical-loss ratio and rate increase review provisions of the ACA, health insurers have reported some of their highest profits of all time during the last few years.

For example, during the first quarter of 2011:

• 13 of the 14 top health insurers and managed care companies exceeded their earnings per share estimates;
• 10 of 14 companies showed stronger profits than expectations; and
• Average earnings over estimates for the 14 companies were 45.7 percent.

During the first three quarters of 2011, “the combined operating margins of the five largest publicly-traded insurance companies averaged 8.65 percent.”

Certainly not all businesses are suffering under the ACA.

Now, a recent study shows that the major health insurers are profiting by expanding their role in Medicare and Medicaid. 

Governments are outsourcing these programs to private insurers in the hope that it will reduce costs.  Health insurers then step in to run Medicare and Medicaid programs as managed-care plans instead of the traditional fee-for-service plans.

Over half of the 60 million people in the Medicaid program are already in managed-care programs run by large private health insurers.  Nationally, managed-care organizations control $150 billion of the $400 billion in Medicaid spending.

As a result of this outsourcing, revenue from large insurers’ Medicare and Medicaid businesses has jumped from 36 percent to 42 percent over the last three years.

And, if Medicaid expansion survives the Supreme Court’s review, these insurers stand to reap even more profits when an additional 16 million low-income individuals become eligible for Medicaid.

Whether or not Medicaid expansion survives, states are increasingly relying on the managed-care model in their efforts to reduce the Medicaid burden on their budgets. 

Florida is seeking a waiver from CMS to expand its managed-care pilot program from five counties to cover the entire state.  CMS recently granted Texas permission to expand its Medicaid managed-care program.

Beginning February 1, Louisiana rolled out its Medicaid managed-care program, Bayou Health.  When fully implemented, the program will shift $2.2 billion of Louisiana’s $6.7 billion Medicaid budget to private insurers.

Changes in Ohio’s managed-care program are expected to attract more insurers to bid for portions of the state’s $7.3 billion Medicaid spending. 

CareSource, the only managed-care plan now operating in all eight of Ohio’s current regions, reported gains from claims paid out on premiums collected of $101 million in 2010.  Molina Healthcare Inc., second to CaseSource in enrollees, had gains of $50 million.

Ohio is also linking payment to quality for the managed-care contractors.

In total, nearly two dozen states are planning Medicaid managed-care expansion in 2012.

Insurers lobbied aggressively for the individual mandate and will profit when it takes effect in 2014.  They will profit from Medicaid managed-care whether or not the expansion is upheld.

So, without question, the ACA has been good for the business of health insurers.

On January 13, 2012, Italian cruise ship Costa Concordia partially sank after hitting a reef off of the Italian coast.

If any lawyers out there are like me, as you were watching the disaster unfold, you wondered to yourself about what kind of liability the cruise ship company has and the lawsuits that will arise from this occurrence (such musings are a typical byproduct of law school).

Well, now the first lawsuit related to the disaster has been filed.

On January 27, six individual passengers of Costa Concordia during its doomed final voyage filed suit against Costa Cruise Lines and its parent corporation Carnival, claiming various counts of negligence, along with intentional infliction of emotional distress (IIED).

Although the investigation is still ongoing, some facts already seem to be established, which the complaint, naturally, has included.

According to the complaint, the disaster was caused by “the ship sailing off course and too close to the Le Scole Reef off the coast of Italy, scraping the reef, causing a massive hole [150-165 foot-long] in the side of the ship.”

The decision to change the ship’s course was made by the ship’s captain himself.

Also according to the complaint, after the ship collided with the reef, no alarm sounded.

The passengers could tell that something was wrong because the ship listed and never re-righted itself, and lights flickered on and off.

Unsurprisingly, many passengers tried to abandon ship and board lifeboats, but the ship crew “refused to allow access,” and instead “announced that the problem was only electrical in nature and ordered passengers to go back to their cabins.”

The ship was next steered to Giglio Island where it hit another reef, causing the front of the ship to swing around and became pinned by the rocks.

The complaint states that this was a bad move on the part of the captain that made evacuation procedures more difficult.

Ten minutes later, and an hour and fifteen minutes after the ship first started taking on water, the captain gave the order to abandon ship.

As has already been widely reported, the captain immediately jumped into a lifeboat after giving the order.

The complaint further asserts that no SOS was ever issued, and that the passengers were largely left to fend for themselves.

There’s a bit more detail to the story than that, but even this alone makes it pretty apparent that there was some substantial negligence behind the accident.

Hot Doc: Scimone v. Carnival Cruise Lines

Source: Thomson Reuters News & Insight – National Litigation

The negligence counts in the complaint aren’t your standard ones, though: maritime negligence, gross negligence, and negligent retention.

Maritime negligence is basically just like regular negligence, but the standard of reasonable conduct is tailored to that of maritime practices.

Thus, under the facts asserted, there isn’t a question of whether negligence occurred here.

The negligent retention claim – mainly that Carnival retained the captain’s employment despite their knowledge of his regular practice of doing a “sail-by-salute” (sailing close to shore to “salute” those on land) – seems pretty strong, too.

Of course, neither of these actions is as important as the gross negligence claim (and the IIED claim, which is tied to the gross negligence one).

Why?

Simply because a gross negligence claim allows for punitive damages, which the complaint has asked for in the amount of $450 million (in addition to $10 million in compensatory damages for injuries and property loss).

A successful gross negligence claim would require a showing of willful, wanton, or reckless misconduct.

While that’s typically a hard burden to meet, the fact that the Costa Condordia is the largest passenger ship to ever sink doesn’t help Carnival’s case.

If a finding of gross negligence is made, even if the punitive damages are reduced (which they surely would be), this would be very bad news for the company.

This suit has been brought by only six of the ship’s passengers though there are in excess of 3,000 passengers who were actually onboard at the time of the accident.

Suits by even a fraction of that total number would bankrupt the company, which is probably why it is scrambling to settle all claims with the passengers even as I write this.

Whether this crusade for indemnification is successful will really determine the future of the company, because Carnival may not have one if many more suits like this pop up.

The ACC has great resources to help you not only find available jobs, but also offers advice on how to land them.  The ACC has teamed with the career experts at Robert Half Legal to compile a list of frequently asked questions and answers to help you navigate the legal marketplace. Find answers to employment related questions on common career topics such as job hunting and salary negotiation.

Select a category:

• Job Hunting
• Salary & Benefits
• Hiring Trends
• Workplace
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They also offer advice on career – related issues not addressed on their website.  ACC members can send questions directly to career experts at Robert Half Legal. Read ACC’s blog, In-house ACCess, to hear what one attorney thinks about going straight to work at Hewlett-Packard.

All these resources and more are available here.

State presented insufficient evidence that defendant, who threw balls of wet toilet paper at correction officer, attempted to cause injury by means of a dangerous instrument to support conviction for attempted assault in the second degree; instruments consisted of compressed balls of wet toilet paper, some of which were mixed with banana, defendant threw balls from distance of 12 to 15 feet, and ball which struck officer was small enough to pass through one of the 2 1/2-inch openings in protective grate.
People v. Travis, 711 N.Y.S.2d 514 (App. Div. 2000)
Suggested by Andrea Wan, Senior Court Attorney; New York Unified Court System; Brooklyn, NY

(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history.  Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)

On August 6, 1965, with Martin Luther King, Jr. and Rosa Parks present, President Lyndon B. Johnson signed the Voting Rights Act (VRA) into law.

The Act was a landmark piece of civil rights legislation that outlawed voting practices used to disenfranchise African American voters (such as voter literacy tests).

While most of the VRA was controversial at the time of its signing, at least in some areas of the country, one provision in particular continues to be so even today: Section 5.

Section 5 requires that a “covered jurisdiction” cannot change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without federal approval.

The “covered jurisdictions” are predominantly states located in the South, but also include counties in other states (see the Department of Justice’s current list of covered jurisdictions for more).

As the statute’s language suggests, Section 5’s prohibition against such jurisdictions making any changes relating to voting without federal approval is very broad, although one area in particular has made Section 5 a big legal focus recently.

That area was also the subject of a recent Supreme Court decision: redistricting.

The decision – Perry v. Perez – was actually very limited in its scope in regards to Section 5 itself, to the great disappointment of those hoping to see the provision struck down as unconstitutional.

Here’s what happened:

After census data is collected and made available, states must redraw their congressional and state legislative maps to account for population shifts.

However, before such changes can take effect, Texas, a “covered jurisdiction,” must obtain federal approval for those changes – also known as “preclearance.”

To be “precleared,” a covered jurisdiction must show that its proposed changes don’t have a “discriminatory purpose” or “retrogressive effect” on minority voters.

Texas drew up the maps, and filed in federal court in D.C. for preclearance.

While the preclearance case was pending, various groups sued in a separate action claiming that the new plans discriminated against African American and Latino voters.

Hearings were heard in the case, but judgment was reserved pending the resolution of the preclearance case.

It then became apparent that there wouldn’t be resolution to either case in time for the 2012 elections.

Since the previous census, Texas saw massive population shifts, with three-quarters of its population growth since 2000 attributable to Latinos and African Americans.

Thus, given the U.S. Constitution’s mandate of “one person, one vote” (see 1964’s Reynolds v. Sims), using the old district maps would be unconstitutional.

On the other hand, the new ones couldn’t be used until Texas obtained preclearance.

So, to try to put something together in time for the elections, the federal court hearing the challenge to the redistricting then drew its own maps.

The Supreme Court’s decision in Perry v. Perez was the final result of the conflict over the district court’s maps, and in it the Court unanimously (and lukewarmly) held that it was “unclear” whether the district court drew the maps correctly.

As I mentioned earlier, this decision was a huge disappointment to many because the Court didn’t touch the issue of Section 5’s constitutionality (except, of course, for the Court’s fiercest opponent of civil rights laws, Clarence Thomas, who declared it unconstitutional in a separate concurrence).

Those hoping to see the Court void Section 5 will continue to be disappointed as long as they rely on preclearance actions as the vehicle to try to accomplish their goal.

Except for the rare occasion, the Roberts Court prefers to decide cases on as narrow of grounds as possible.

Because preclearance actions only require a decision on whether voting changes are acceptable, it is highly unlikely that the Court will go above and beyond to rule Section 5 unconstitutional.

The Court would view that as overstepping its judicial bounds, especially in light of Congress’s extending of the VRA for another 25 years in 2006 (more on that next week).

Whether explicit challenges to Section 5 itself – such as Shelby County v. Holder – will have any better luck remains to be seen.

Even if they fail, challengers are unlikely to stop trying, and this battle could easily be seen as the biggest legal civil rights struggle of the present time.

In fact, he decided he wanted to run a solo practice while he was still in law school. For Isaac, that was actually the easy decision. It was more challenging to choose a practice area. He chose to practice probate because it was something that would make him happiest, and therefore, the best attorney he can be.

Isaac also understands“It’s important to have a life outside of law.” On Sundays, he leaves it all behind and rides out to the Texas hill country, a picturesque drive with winding two-way roads. And he creates time for himself by using WestlawNext.

See his full story on the Small Law Lifestyle website.

Term “summary judgment” is something of a misnomer; it suggests judicial process that is simple, abbreviated, and inexpensive, while in reality, process is complicated, time-consuming, and expensive.
Fesler v. Whelen Eng’g Co., Inc., 794 F. Supp. 2d 994 (S.D. Iowa 2011)
Suggested by David F. Herr, Partner and Thomson Reuters Author; Maslon Edelman Borman & Brand, LLP; Minneapolis, MN