Marc L. Breakstone Authors Article, “Establishing Liability Through the Defendant,” in MATA Journal

Attorney Marc L. Breakstone

By Marc L. Breakstone
As published in the November 2019 edition of MATA Journal, a publication of the Massachusetts Academy of Trial Attorneys.

Marc L. Breakstone

Marc L. Breakstone

There is no better way to prove liability in a negligence lawsuit than through the defendant’s own admissions. The groundwork starts with your interrogatories, which inquire about the facts surrounding the occurrence.

The best opportunity to obtain admissions comes at the deposition of the defendant or its 30(b)(6) designee. With a corporate defendant, your first deponent should be the person most knowledgeable regarding the safety practices and procedures of the defendant.

Early in the deposition ask: “Is safety is your highest priority?” If the answer is “yes,” great. If the answer is “no,” even better (find out what is!).

Human nature is such that every defendant will present themselves as extremely safety conscious. You should hand them enough rope to tie themselves as highly up the safety pole as possible.

Next ask defendant (or its designee), “What are the precautions that should be taken in the context of the occurrence in your case?” Depending on the type of case, ask specifically what it means to drive defensively, to maintain a restaurant floor in a safe condition, to safeguard floor openings at a construction site, to guard pinch points on a machine, or to enter the abdomen with a laparoscopic trocar so as to avoid injury to other structures.

Come into the deposition with your own list of precautions to be followed under the circumstances, so when the defendant runs out of ideas, you can coax additional admissions.

For example, in a car crash case, ask the defendant what it means to drive defensively. Does defensive driving mean paying attention to the roadway at all times, seeing what can be seen, following at a safe distance, anticipating the actions of other, driving at a safe speed under the conditions? Ask the defendant if she follows these rules at all times.

Your objective should be to elicit a list of precautions that a safety conscious party must follow when performing the function involved in your case. Make sure your list addresses every negligent act or omission by defendant.

Once you have your safety checklist, ask the defendant specifically what she did in this case. Drill down to get as many specific factual admissions as you can. Don’t bother asking the defendant to self-judge whether she met her own safety standards. That is for the jury at trial. What you will find is that the defendant’s conduct did not measure up to the high safety standards that she proudly admitted adherence to at the start of the deposition.

If properly done, your deposition may relieve you of the need for an expert witness at trial to testify regarding defendant’s breach of their safety responsibilities.

Read the PDF version.

The MATA Journal is published as a supplement to Massachusetts Lawyers Weekly.

Marc L. Breakstone is a principal of Breakstone, White & Gluck, P.C. in Boston, where he concentrates in representing plaintiffs in serious personal injury and medical malpractice cases.

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Rant On: Who’s Been Stealing Our Web Content Lately?

Thumbnail image for David web image.jpgHave you ever checked to see who might be “borrowing”  the copyrighted material on your web pages or blogs? Well it is easy to do, and some of the results may really disappoint you.

Many lawyers, we among them, devote a tremendous amount of time and resources to keep our web pages and blogs up to date, full of relevant content, and, hopefully, interesting to our readers. There is certainly enough pressure to be original. And while I’m sure we can all admit being inspired by the words of others, we use that inspiration to create original pages on the same or related topics.
Sadly some authors are simply too lazy or dishonest to use their own words–they plagiarize yours and mine, passing it off as original content. Why does this matter? Well, for one thing it is illegal; our little copyright symbol should make that perfectly clear. Apart from the misappropriation, having the same content on multiple pages hurts rankings in the eyes of search engines, so the original author suffers further harm from the down-ranking. 
We have investigated improper use of our content on a number of occasions. A recent search found dozens of offending sites. 
Overwhelmingly the content has been lifted by web authors hired by law firms to create their websites, and the law firms which bought the content were misled about what they were buying. (Quick aside: I found a site that was almost verbatim our site, and it belonged to a good friend. After I called him he immediately took it down. He was really embarrassed too. He had told his web developer he wanted a site “like ours,” but he never told him to copy it exactly!) 
It is likely, however, that some among us are publishing the work of others with full knowledge of just how wrong it is. 
Finding the Plagiarism

Finding the offenders is easy. Just highlight a unique snippet (google allows up to 36 words), and right click for a google search or paste it into a search window. There are also several copy checking services which you can buy. Here is a good article ranking the top five plagiarism detectors. Plaigiarism Today also offers a number of suggestions on finding and managing copyright violations.
If the search results pull up the exact same (or strikingly similar) phrase in another website, you may have found an offender. Compare the page to yours, and you will likely find more copying. Check a few other pages while you are at it; often content will be misappropriated across a number of pages. Some of the searches reveal pretty silly results. For example, we found a law firm in California that is handling cases against the MBTA (that stands for Massachusetts Bay Transportation Authority, folks), and a firm that even copied misspelled words. 
If you are like us, you will say “hmmmm” (actual words omitted) and probably experience a slight increase in blood pressure as well. It’s time for action.
Dealing with Offenders

Once I have found a page that has lifted content from our site, and checked the offending site for additional misappropriated content, I contact the firm. I ask for a top partner, and I explain what is wrong. I also explain that I consider them likely to be innocent victims; my call is not a personal accusation. I follow that up with an email and a letter detailing where the offending content is and asking for prompt remedy. 
Almost everybody is immediately responsive. Often, when they learn that they have paid for purloined content, they get angry too, and take their complaints to their web providers. Keeping things cordial has generally been pretty easy. In fact, I have even met a few referring attorneys through my exchanges over their (our) web content.
Copyscape ( provides a number of tips about plagiarism and suggestions on  responding to plagiarism. The ultimate weapon is a complaint under the Digital Millennium Copyright Act (DCMA). The offending content will be blacklisted. For us this would be a last resort, only after polite requests for corrections were ignored.
Other Ways to Protect Yourself

The people you hire–whether staff or consultants–must be monitored to make sure they are not plagiarizing others. If you are suspicious, spot check their work using the tools above. Demand a certification from your consultants that their work is original. 
Copyscape offers free logos which you can put on your page–that may be a deterrent for some, but probably not all. 
Unfortunately, due diligence to protect your copyrighted material is just one more thing you need to keep on your to-do list.
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