Fourth Circuit Affirms Dismissal of Securities Fraud Complaint Where Inference of Scienter Was Not Sufficiently Strong

In Yates v. Municipal Mortgage & Equity, LLC, No. 12-2496 (4th Cir. Mar. 7, 2014), the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78(b), against defendant Municipal Mortgage & Equity (“MuniMae”) and its individual officer and director defendants.  The Court held that plaintiffs failed to plead facts sufficient to give rise to a strong inference of defendants’ scienter under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4, et seq.  The Court declined to accept that the inference of scienter offered by plaintiffs — supported by statements from confidential witnesses, presence of red flags, allegations of insider trading and general business incentives — was at least as compelling as the opposing inference of mere negligence that could be drawn from the amended complaint.  Yates is one of the few reported decisions from the Fourth Circuit applying the PSRLA, and it solidly reaffirms the PSLRA’s requirement that a plaintiff plead more than just allegations based upon conjecture and happenstance to satisfy heightened pleading requirements.

During the putative class period (May 3, 2004 to January 29, 2008) MuniMae was involved in organizing investment partnerships to pool low-income housing tax credits (“LIHTCs”) and sell them to investors.  Prior to 2003, MuniMae treated its LIHTC investment partnerships as off balance sheet entities.  In 2003, the Financial Accounting Standards Board adopted Interpretation No. 46R (“FASB 46R”), requiring that a company that is the primary beneficiary of “Variable Interest Entities” consolidate the entities assets and liabilities onto its financial statements.  MuniMae began asserting compliance with FASB 46R in the first quarter of 2004.  However, at that time MuniMae internally concluded that FASB 46R did not require it to consolidate for financial statement purposes all of tis LIHTC investment partnerships.  MuniMae continued to assert compliance with FASB 46R through 2006.  In September 2006, MuniMae announced it would be restating certain financial statements and through a series of later disclosures finally announced that the restatement would deal with FASB 46R accounting errors.  As a result of the piecemeal disclosures, MuniMae’s share price dropped precipitously.  The following day, MuniMae disclosed the full extent of the restatement’s scope and MuniMae’s stock experienced an additional decline.  Eventually, in April 2008, MuniMae disclosed that it had spent over $54 million on the restatement.

Plaintiffs filed a class action complaint alleging that defendants made false representations that MuniMae was complying with FASB 46R and concealed the expected cost of the restatement in violation of Section 10(b).  The United States District Court for the District of Maryland held that the amended complaint did not sufficiently allege a claim under Section 10(b) because it did not meet the PSLRA’s heightened pleading standard for scienter allegations.  Plaintiffs appealed.

The Court of Appeals affirmed.  First, the Fourth Circuit held that the confidential witness testimony supplied by plaintiffs did not support a “strong inference of wrongful intent.”  The testimony did suggest that defendants knew earlier than disclosed that MuniMae was not in compliance with 46R and that the required restatement would be a difficult and costly undertaking.  It also indicated that the issue was difficult and complex and had thrown MuniMae into “confusion and chaos” — which the Court held supported the opposing inference that the defendants were merely negligent.  In fact, the Court explained, defendants’ subsequent disclosures negated an inference of fraudulent intent because, although the disclosures were not “as timely or as fulsome” as plaintiffs would have liked, they gave rise to a compelling inference that the MuniMae defendants were attempting to keep the investing public informed.

Second, the Court held that while there were several “red flags” concerning MuniMae’s core operations — the need in and of itself for several restatements, frequent accounting meetings, the firing of outside auditors, and rapid CFO overturn — they did not in and of themselves give rise to a strong inference of scienter.  Not only was the FASB 46R accounting error not especially obvious, but the other warning signs easily lent themselves to benign interpretations as a result of MiniMae’s obvious attempts to get a handle on its creeping accounting problems.

Third, the Court of Appeals followed the decisions of several other Circuits in holding insufficient plaintiffs’ allegation that the individual defendants “must have acted intentionally or recklessly” merely because they were senior executives and the LIHTC investment partnerships represented a core business of MuniMae.

Fourth, in addressing plaintiffs’ allegations concerning insider trading, the Court held that while the overall value of MuniMae shares sold during the class period was higher than in previous years and thus consistent with an inference that the insiders who traded had a motive to commit fraud, the inference that the trades were innocent was stronger.  There were no allegations that the insiders timed their sales to take advantage of any particular disclosure.  Nor was the level of any insiders’ divestiture particularly alarming.  Moreover, the Court noted, the fact that several of the individual defendants traded under non-discretionary Rule 10b5-1 plans further weakened any inference of fraudulent purpose.

Finally, the Court held that plaintiffs other allegations of motive were similarly lacking as the alleged motivations amounted to nothing more than “financial motivations common to every company.”

Thus, in Yates, the Fourth Circuit reaffirmed the heightened standard of pleading a plaintiff must meet to satisfy the PSLRA.  Specifically, the Court emphasized that the allegations of scienter under Section 10(b) cannot be read in a vaccum.  They must be holistically analyzed in comparison with the disclosures actually made by defendants.  General business motivations, insider trading and the core nature of the problems alleged by plaintiffs cannot turn a company’s repeated attempts to inform investors of the ongoing and ever-evolving nature of a problem into intentional rather than merely negligent conduct.

Source: http://www.corporatesecuritieslawblog.com/2014/04/fourth-circuit-affirms-dismissal-of-securities-fraud-complaint-where-inference-of-scienter-was-not-sufficiently-strong/

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Attorney L. Lin Wood on Representing the Ramseys and Other High-Profile Individuals

John and Patsy Ramsey, Richard Jewell, and Gary Condit are names everyone has heard as they were all on trial in the court of public opinion. These cases were spread throughout the media and, even though there was never an arrest made in any, the public had judged the accused. L. Lin Wood was the lawyer representing these individuals as they fought for their reputations. An expert in First Amendment litigation and management of the media in high-profile cases, Wood has been referred to as "the attorney for the damned."
On this episode of The Paralegal Voice, Vicki Voisin has the opportunity to interview L. Lin Wood about the benefits and difficulties in representing high-profile individuals and how a paralegal can be most effective in these cases. Wood began his career in defamation cases when he represented Richard Jewell in the Centennial Olympic Park bombing case and has since represented the Ramseys, Gary Condit, attorney Howard Stern, and many others in whom the media took a particular interest. He describes how fighting against the media can be different than a regular plaintiff and how he protects his clients from public accusations. He explains that there are additional issues when dealing with a public figure including when to sue for slander and how to control what his clients say to the media. In terms of paralegals working in libel cases, there are three qualities Wood expects: acute knowledge about the case, understanding of the situation, and ability to keep track of a wealth of information coming from the media.
L. Lin Wood is an Atlanta attorney who has developed a national reputation during his more than 36 years as a trial lawyer focusing on civil litigation, representing individuals and corporations as plaintiffs or defendants in tort and business cases involving claims of significant damage. He can be found at www.whetriallaw.com.
Special thanks to our sponsors. NALA is a professional association for paralegals providing continuing education and professional certification programs for paralegals at nala.org. Also, visit ServeNow.com for a nationwide network of trusted, prescreened process servers.

Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2014/06/attorney-l-lin-wood-representing-ramseys-high-profile-individuals

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Thailand king endorses interim constitution

[JURIST] Thailand's King Bhumibol Adulyadej [BBC profile; JURIST news archive] announced his support on Tuesday for an interim constitution [PDF; in Thai] that would grant extensive authority to the National Council for Peace and Order (NCPO) [MThai report, in Thai], the military junta currently in power. King Bhumibol announced [Reuters report] his endorsement during a routine royal news bulletin. The NCPO, which has controlled Thailand since a coup expelled former Prime Minister Yingluck Shinawatra [BBC profile] in May, has declared...

Source: http://jurist.org/paperchase/2014/07/thailand-king-endorses-interim-constitution.php

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Supreme Court Watch: Employment law cases

We will be watching three pending cases at the US Supreme Court as the Court's session opens today:

Kloeckner v. Solis
Oral argument on October 2.

The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."

Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

Vance v. Ball State Univ
Oral argument on November 26.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.

Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Genesis HealthCare v. Symczyk
Oral argument December 3.

Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.

Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.

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Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html

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Second Circuit Overturns District Court’s Rejection of SEC-Citigroup Fraud Settlement

In a closely-watched decision involving judicial review of agency settlements, the Unites States Court of Appeals for the Second Circuit vacated United States District Court Judge Jed Rakoff’s 2011 order rejecting a proposed $285 million settlement between the Securities and Exchange Commission (“SEC”) and Citigroup Global Markets Inc., finding that the judge applied an incorrect legal standard in his review of the proposed accord.  S.E.C. v. Citigroup Global Mkts., Inc., No. 11-5227-CV L, 2014 WL 2486793 (2d Cir. June 4, 2014).  The Second Circuit held that, under the proper standard, the district court is required to determine whether the consent decree is fair and reasonable, and, if it includes injunctive relief, whether the public interest “would not be disserved.”  Absent a substantial basis in the record to the contrary, the appeals court held, the district court is required to enter the order.

In October of 2011, the SEC filed a complaint against Citigroup in the United States District Court for the Southern District of New York alleging that the bank misled investors about a billion-dollar collateralized debt obligation.  Shortly thereafter, the SEC filed a proposed consent judgment wherein Citigroup agreed to, among other things, a permanent injunction barring it from future violations of the securities laws, disgorgement of $160 million, and a civil penalty of $95 million.  The proposed consent decree did not include any admission of wrongdoing.

After conducting a hearing to explore the basis of the settlement, the district court issued a written opinion rejecting the proposed accord and set a trial date.  See S.E.C. v. Citigroup Global Markets Inc., 827 F. Supp. 2d 328 (S.D.N.Y. 2011).  The district court held that “before a court may employ its injunctive and contempt powers in support of an administrative settlement, it is required, even after giving substantial deference to the views of the administrative agency, to be satisfied that it is not being used as a tool to enforce an agreement that is unfair, unreasonable, inadequate, or in contravention of the public interest.”

In his ruling, he took particular exception with the absence of any admission or denial of liability by Citigroup.  He compared the proposed consent decree unfavorably to the SEC’s 2010 settlements with Bank of America and Goldman Sachs.  In those cases, the district judge observed, the parties had stipulated to certain findings of fact.  Here, by contrast, “[w]ithout such an evidentiary basis in this case . . . the Court is forced to conclude that a proposed Consent Judgment that asks the Court to impose substantial injunctive relief, enforced by the Court’s own contempt power, on the basis of allegations unsupported by any proven or acknowledged facts whatsoever, is neither reasonable, nor fair, nor adequate, nor in the public interest.”  Rejecting the proposed consent decree, the district court observed that an “application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous.  The injunctive power of the judiciary is not a free-roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated.  If its deployment does not rest on facts — cold, hard, solid facts, established either by admissions or by trials — it serves no lawful or moral purpose and is simply an engine of oppression.”

On appeal, the Second Circuit vacated the lower court’s order and remanded for further proceedings consistent with its opinion.

The Second Circuit ruled that the lower court exceeded its authority in reviewing the adequacy of the settlement, holding that district courts are limited to determining whether a proposed consent judgment is fair and reasonable, and, if it includes injunctive relief, whether the “public interest would not be disserved.”  The Court held that district courts are required to enter the order absent a substantial basis in the record to the contrary.

Focusing on the district court’s insistence that the consent decree contain “proven or acknowledged facts,” the Second Circuit held that it was an abuse of discretion to require, as the district court did here, that the SEC establish the “truth” of its allegations as a condition for approving a consent decree.  The Court held that the lower court failed to give “significant deference” to the SEC by presenting the parties with a questionnaire and comparing the proposed accord unfavorably to settlements in other matters.

The Second Circuit also held that the district court applied the wrong standard of review by defining the “public interest” as “an overriding interest in knowing the truth.”  It held that it is an abuse of discretion for a district court to find the public interest disserved “based on its disagreement with the S.E.C.’s decisions on discretionary matters of policy, such as deciding to settle without requiring an admission of liability.”

A significant aspect of the Second Circuit’s decision is its clarification of the scope of deference district courts owe federal agencies seeking approval of consent decrees.  The Court held that “the job of determining whether the proposed S.E.C. consent decree best serves the public interest, however, rests squarely with the S.E.C. and its decision merits significant deference.”

Before the Second Circuit’s decision in Citigroup, the SEC was forced to operate under the uncertainty of whether other district courts would follow Judge Rakoff’s approach and insist that its settlements contain admissions of wrongdoing or at least some sort of factual predicate for the settlement.  In effect, the Second Circuit’s ruling vindicates the SEC’s use of “no-admit, no-deny” settlements, an integral part of its enforcement regime, and frees the SEC to settle cases through consent decrees without the burden of justifying its settlement.  Without this burden, the SEC will be able to resolve cases more quickly and, therefore, more efficiently manage its enforcement docket.

Source: http://www.corporatesecuritieslawblog.com/2014/07/second-circuit-overturns-district-courts-rejection-of-sec-citigroup-fraud-settlement/

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Fourth Circuit Affirms Dismissal of Securities Fraud Complaint Where Inference of Scienter Was Not Sufficiently Strong

In Yates v. Municipal Mortgage & Equity, LLC, No. 12-2496 (4th Cir. Mar. 7, 2014), the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78(b), against defendant Municipal Mortgage & Equity (“MuniMae”) and its individual officer and director defendants.  The Court held that plaintiffs failed to plead facts sufficient to give rise to a strong inference of defendants’ scienter under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4, et seq.  The Court declined to accept that the inference of scienter offered by plaintiffs — supported by statements from confidential witnesses, presence of red flags, allegations of insider trading and general business incentives — was at least as compelling as the opposing inference of mere negligence that could be drawn from the amended complaint.  Yates is one of the few reported decisions from the Fourth Circuit applying the PSRLA, and it solidly reaffirms the PSLRA’s requirement that a plaintiff plead more than just allegations based upon conjecture and happenstance to satisfy heightened pleading requirements.

During the putative class period (May 3, 2004 to January 29, 2008) MuniMae was involved in organizing investment partnerships to pool low-income housing tax credits (“LIHTCs”) and sell them to investors.  Prior to 2003, MuniMae treated its LIHTC investment partnerships as off balance sheet entities.  In 2003, the Financial Accounting Standards Board adopted Interpretation No. 46R (“FASB 46R”), requiring that a company that is the primary beneficiary of “Variable Interest Entities” consolidate the entities assets and liabilities onto its financial statements.  MuniMae began asserting compliance with FASB 46R in the first quarter of 2004.  However, at that time MuniMae internally concluded that FASB 46R did not require it to consolidate for financial statement purposes all of tis LIHTC investment partnerships.  MuniMae continued to assert compliance with FASB 46R through 2006.  In September 2006, MuniMae announced it would be restating certain financial statements and through a series of later disclosures finally announced that the restatement would deal with FASB 46R accounting errors.  As a result of the piecemeal disclosures, MuniMae’s share price dropped precipitously.  The following day, MuniMae disclosed the full extent of the restatement’s scope and MuniMae’s stock experienced an additional decline.  Eventually, in April 2008, MuniMae disclosed that it had spent over $54 million on the restatement.

Plaintiffs filed a class action complaint alleging that defendants made false representations that MuniMae was complying with FASB 46R and concealed the expected cost of the restatement in violation of Section 10(b).  The United States District Court for the District of Maryland held that the amended complaint did not sufficiently allege a claim under Section 10(b) because it did not meet the PSLRA’s heightened pleading standard for scienter allegations.  Plaintiffs appealed.

The Court of Appeals affirmed.  First, the Fourth Circuit held that the confidential witness testimony supplied by plaintiffs did not support a “strong inference of wrongful intent.”  The testimony did suggest that defendants knew earlier than disclosed that MuniMae was not in compliance with 46R and that the required restatement would be a difficult and costly undertaking.  It also indicated that the issue was difficult and complex and had thrown MuniMae into “confusion and chaos” — which the Court held supported the opposing inference that the defendants were merely negligent.  In fact, the Court explained, defendants’ subsequent disclosures negated an inference of fraudulent intent because, although the disclosures were not “as timely or as fulsome” as plaintiffs would have liked, they gave rise to a compelling inference that the MuniMae defendants were attempting to keep the investing public informed.

Second, the Court held that while there were several “red flags” concerning MuniMae’s core operations — the need in and of itself for several restatements, frequent accounting meetings, the firing of outside auditors, and rapid CFO overturn — they did not in and of themselves give rise to a strong inference of scienter.  Not only was the FASB 46R accounting error not especially obvious, but the other warning signs easily lent themselves to benign interpretations as a result of MiniMae’s obvious attempts to get a handle on its creeping accounting problems.

Third, the Court of Appeals followed the decisions of several other Circuits in holding insufficient plaintiffs’ allegation that the individual defendants “must have acted intentionally or recklessly” merely because they were senior executives and the LIHTC investment partnerships represented a core business of MuniMae.

Fourth, in addressing plaintiffs’ allegations concerning insider trading, the Court held that while the overall value of MuniMae shares sold during the class period was higher than in previous years and thus consistent with an inference that the insiders who traded had a motive to commit fraud, the inference that the trades were innocent was stronger.  There were no allegations that the insiders timed their sales to take advantage of any particular disclosure.  Nor was the level of any insiders’ divestiture particularly alarming.  Moreover, the Court noted, the fact that several of the individual defendants traded under non-discretionary Rule 10b5-1 plans further weakened any inference of fraudulent purpose.

Finally, the Court held that plaintiffs other allegations of motive were similarly lacking as the alleged motivations amounted to nothing more than “financial motivations common to every company.”

Thus, in Yates, the Fourth Circuit reaffirmed the heightened standard of pleading a plaintiff must meet to satisfy the PSLRA.  Specifically, the Court emphasized that the allegations of scienter under Section 10(b) cannot be read in a vaccum.  They must be holistically analyzed in comparison with the disclosures actually made by defendants.  General business motivations, insider trading and the core nature of the problems alleged by plaintiffs cannot turn a company’s repeated attempts to inform investors of the ongoing and ever-evolving nature of a problem into intentional rather than merely negligent conduct.

Source: http://www.corporatesecuritieslawblog.com/2014/04/fourth-circuit-affirms-dismissal-of-securities-fraud-complaint-where-inference-of-scienter-was-not-sufficiently-strong/

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UK to introduce laws to eradicate female genital mutilation

[JURIST] UK Prime Minister David Cameron [official website] on Tuesday announced [press release] plans to enact new laws that will protect girls from the practice of female genital mutilation (FGM) [WHO backgrounder], procedures that intentionally alter or injure the female genitalia for non-medical reasons. The practice is often motivated by cultural, religious or social factors. Cameron made the announcement at Girl Summit 2014 [event website], an event hosted by the British government and the UN Children's Fund (UNICEF) [official website],...

Source: http://jurist.org/paperchase/2014/07/uk-to-introduce-laws-to-eradicate-female-genital-mutilation.php

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Appeals Court Rules in Favor of Mississippi’s Lone Abortion Clinic

A federal appeals court on Tuesday declared declared unconstitutional a two-year-old Mississippi law that opponents claimed would effectively shut down the state's only abortion clinic.

Source: http://blogs.wsj.com/law/2014/07/29/appeals-court-rules-in-favor-of-mississippis-lone-abortion-clinic/?mod=smallbusiness

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This Week on Legal Talk Network (7/7/2014)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. Monday, Digital Detectives hosts Sharon Nelson and John Simek asks special guest Bob Ambrogi about a new survey that suggests that 77% of lawyers at not trustworthy with client data. Here's a preview.
On Wednesday, The Legal Toolkit's Heidi Alexander takes to the road for a Special Report and interviews Clio's Jack Newton at the recent MASS LOMAP conference about his views on cloud technology and customer centricity.
Thursday, we spotlight Heidi again at MASS LOMAP as she speaks to Jim Schonrock from Findlaw about the concept of a "silver bullet" in marketing.
And on Friday, we finish the week with Lawyer 2 Lawyer - our hosts Bob Ambrogi, J Craig Williams and guests discussing the recent Hobby Lobby Supreme Court ruling and how it will effect free speech, women's reproductive rights and the Affordable Care Act. So tune in. It's all right here . . . This Week on Legal Talk Network.

Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_7-7_Audio_Only.mp3

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Mark Woods: Super memories and a super future (Florida Times-Union)

Share With Friends: | | Law - Video Stories, News Feeds and News via Feedzilla.

Source: http://news.feedzilla.com/en_us/stories/law/video/389355027?client_source=feed&format=rss

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Second Circuit Offers More 'Clarity' in False Advertising Case

A district court's award of treble damages and legal fees against a dietary supplement maker that falsely advertised the chemical composition of its product was upheld Tuesday by the U.S. Court of Appeals for the Second Circuit.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202665146600&rss=newswire

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Bryan Garner on the Latest Edition of Black’s Law Dictionary

Due out this week is the 10th edition of Black's Law Dictionary. With 16,000 new definitions, 900 new maxims, and terms dated back to their first English usage, Black's Law Dictionary 10th Edition is touted to be the most comprehensive and relevant collection of legal terminology to date. But what goes into making this legal reference and how does it stay relevant in today's world? On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams interview Black's Law Dictionary's editor-in-chief Professor Bryan A. Garner. Together they discuss the army of 300 professionals and scholars who deciphered true meanings from historic documents, ancient language, and modern usage. Tune in to hear Garner describe what goes into updating Black's and why he believes attorneys will continue to use it for generations to come.
Bryan A. Garner is a U.S. lawyer, lexicographer, and teacher who has written several books about English usage and style, including Garner's Modern American Usage and Elements of Legal Style. He has served as editor-in-chief of Black's Law Dictionary since 1995, and coauthored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges, and Reading Law: The Interpretation of Legal Texts. Professor Garner is a prolific lecturer, having taught more than 2,500 writing workshops since the 1991 founding of his company, LawProse, Inc., and he is a distinguished Research Professor of Law at Southern Methodist University Dedman School of Law.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2014/05/bryan-garner-latest-edition-blacks-law-dictionary

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The Cost of New Banking Regulation: $70.2 Billion

New regulation stemming from the financial crisis has cost the six largest U.S. banks $70.2 billion as of the end of last year, according to a new study.

Source: http://blogs.wsj.com/law/2014/07/30/the-cost-of-new-banking-regulation-70-2-billion/?mod=WSJBlog

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Professional responsibility office seeks disbarment, suspension of lawyers

The Office of Lawyers Professional Responsibility is seeking the disbarment of one attorney and the suspension of another.

Source: http://minnlawyer.com/2014/07/28/professional-responsibility-office-seeks-disbarment-suspension-of-lawyers/

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Duval school board makes a statement (Florida Times-Union)

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Source: http://news.feedzilla.com/en_us/stories/law/video/389355021?client_source=feed&format=rss

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This Week on Legal Talk Network (7/21/14)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. On Monday, New Solo host Adriana Linares interviews practice management experts Reba Nance and Bill Gibson about business steps new lawyers need to take to optimize their chances for success. Here's a preview- On Wednesday, Christopher Anderson from the Un-Billable hour interviews expert analyst Brooke Lively about the 6 key financial numbers that every lawyer should know. And on Friday, we finish the week with Lawyer 2 Lawyer - our host J Craig Williams interviewing Tennessee House Representative Mike Carter and Legal Director Thomas H. Castelli from the ACLU, discussing Tennessee's new law that adds criminal liability to mothers who do illegal drugs while pregnant. So tune in. It's all right here . . . This Week on Legal Talk Network.

Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_7-21_Audio_Only.mp3

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Congress passes legislation legalizing cell phone unlocking

[JURIST] The US House of Representatives [official website] on Friday passed [bill status summary] a bill [text, PDF] that would make it legal for individuals to open the digital locks on their cellphones. The process, known as unlocking or jailbreaking, is currently illegal [text, PDF], punishable by fines of up to $500,000 and five years in jail for unlocking cellphones without the authorization of wireless carriers. The bill, known as the Unlocking Consumer Choice and Wireless Competition Act, was passed...

Source: http://jurist.org/paperchase/2014/07/congress-passes-legislation-legalizing-cell-phone-unlocking.php

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Maybe Things Aren’t Going Well With Your Employer, But …

Warning: Do not read this right before, or after, eating, because it’s really, really gross. Okay, here it goes, per The Standard, “China’s Business Newspaper”

A domestic helper has appeared in court accused of trying to injure her employer by mixing her menstrual blood in a pot of vegetables she was cooking.

You were warned …

In some Southeast Asian cultures menstrual blood is thought to have special magical powers.

Prosecutor Vincent Lee gave a statement to the court in which the Indonesian maid admitted under caution to mixing the blood with the vegetables in the belief that it would make her employer, surnamed Mok, “more amicable and less picky.”

Perhaps this is TMI, but here it is:

Mok [the employer] peered through the kitchen door and saw the helper acting suspiciously. She entered the kitchen and found the accused throwing something into the trash bin.

When Mok checked, she allegedly found blood clot-like substances mixed with the vegetables and water in the cooking pan.

She later discovered a used sanitary napkin in the bin and called the police.

The Juice won’t be eating for a few days. And just in case your appetite is not totally gone, The Standard also reports that:

Last year, a court in Saudi Arabia sentenced two Asian domestic helpers to four months in prison and 250 lashes each for contaminating the tea of their employer with urine and menstrual blood.

And …

In December 2007, another Indonesian domestic helper in Hong Kong added urine to the drinking water of her employer and his family.

She believed it would make the family treat her better. It was discovered after the family noticed a difference in the taste of the water. The maid was jailed for three months on a charge of “administering poison or other destructive or noxious things with intent to injure.”

Source: http://rss.justia.com/~r/LegalJuiceCom/~3/HkrGNymE7_0/dsa.html

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Judge Rules Against Sterling in Battle Over LA Clippers

A judge in Los Angeles on Monday ruled against Los Angeles Clippers owner Donald Sterling, allowing the $2 billion sale of the team negotiated by his wife to go through.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202664975543&rss=newswire

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Auto Parts Antitrust Case Produces First Civil Settlement

A Japanese automotive parts supplier has agreed to pay $6 million to resolve claims of price-fixing and bid rigging in the first civil settlements in a sweeping antitrust case coordinated in federal court in Detroit.

Source: http://www.nationallawjournal.com/id=1202636781749?rss=rss_nlj

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LawBiz® Legal Pad: No, It’s Not the Same: Pricing vs. Billing, Part 2

Ed advises: keep track of your work, bill timely, and collect efficiently.

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/WBlS5sY1GFQ/

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Change of Plea Out the Window!

Most prosecutors will negotiate with accused offenders. Obviously, this is done to move the trial court calendar along, eliminate the need to tie up resources that could be used elsewhere, truly not needed when the defendant is willing to change a plea. Even in civil matters, parties negotiate settlements in order to achieve reasonable business outcomes and reduce the cost of litigation.

In at least one civil instance, an insurance company said they will not settle any case, large or small, that everything had to go to trial. This clearly delays the outcomes … and enables the insurance carrier to withhold payment for some time. I’ve not seen any studies about the merits of such activities from the carrier’s perspective. It does, however, frustrate plaintiffs. Frustration without economic benefit is hardly a good business outcome. And the carrier has since reversed this policy.

Now, we have a new version. The State Bar of California has announced that it will refuse to accept “no contest” pleas from lawyers accused of ethics violations. The issue here is not one of criminal liability, but rather of retaining one’s license to practice law. One has to ask what more can be given to the Bar once the lawyer-accused has agreed to take his/her punishment?

The Office of Trial Counsel maintains that accused lawyers are not accepting responsibility for their actions unless they are tried and convicted or accept a guilty plea. That is why they will not accept a nolo contendere plea. Other than civil damages, the effect of a nolo plea is the same … and punishment is no less. Criminal prosecutors understand this. But, the Bar wants its “pound of flesh.” It is questionable whether this is a question of morality.
This is just one more example of the California State Bar’s new adversarial attitude toward its members … Although the legislative directive to the State Bar is that its primary, if not sole, function is to protect the public (not help its members who pay all the expenses of the Bar), one has to wonder how the public is being better helped by this new approach.

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/-ANxxuDCoWg/

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Employer Fraud and Recommendations from New York State Supreme Court’s Grand Jury Report

A recent Grand Jury Report from the New York State Supreme Court brought recommendations of change to handle Employer Fraud in Workers' Compensation. Among the recommended areas of change are the application process, criminal statutes, and the method of collecting data. On this episode of Workers Comp Matters, host Alan Pierce interviews Gilda Mariani of the Manhattan District Attorney's Office. Together they discuss the results of the Grand Jury Report and the subsequent victims of premium fraud. Tune in to learn more about employee classifications, the involuntary insurance market, and drivers of cost for workers' compensation insurance.
Gilda Mariani is with the New York County District Attorney's Office, having held supervisory positions including Deputy Chief of its former Frauds Bureau as well as Chief of its former Money Laundering and Tax Crimes Unit. She has had a significant role in drafting legislation, including the New York Money Laundering Statute and the misdemeanor crime of Providing a Juror with a Gratuity. She has conducted several investigations that have led to issuance of Reports by the New York County Grand Jury, including the Grand Jury Report released in March 2014 on workers' compensation reform. Mariani is also a recipient of the Robert M. Morgenthau Award by the District Attorneys Association of the State of New York.
Special thanks to our sponsor, PInow.

Source: http://legaltalknetwork.com/podcasts/workers-comp-matters/2014/05/employer-fraud-recommendations-new-york-state-supreme-courts-grand-jury-report

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Fighting Video with Video

Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:

Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.

“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”

Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.

So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?

Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.

“They say a picture is worth a thousand words,” Kelly said.

What Elliott records with his camera can be used for evidence.

“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.

Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.

But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.

When they take the oath and strap on the Sam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.

Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not?  Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered? 

A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.

Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.

And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?

“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.

Officials believe that the cameras will be helpful in protecting themselves and the community.

“I think there will be a time when everyone carries one,” said Kelly.

There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it.  We're still a ways off from figuring out how video will best serve  "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.

But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse.  Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed. 

Why isn't the public required to do so if that's what you demand of cops?  Because you are cops, whose function is to protect and serve at the behest of the public.  This is the life you chose and the obligation that goes with it.











© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss

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This Week on Legal Talk Network (7/28/14)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. On Monday, Digital Detectives Sharon Nelson and John Simek interview ediscovery and compliance attorney Patrick Gout about how attorneys should be prepared on technology issues when they investigate criminal and civil matters.
On Wednesday, Vicki Voison, The Paralegal Mentor, interviews social business management expert Doug Kaminski about data recovery, ediscovery, and archiving information that is exchanged through new forms of communication like social media.
And on Friday, The Legal Toolkits' Jared Correia talks to marketing strategy consultant and author Dorie Clark about why it's important for lawyers to become subject matter experts and what they can do to become one. Here's a preview.
So tune in. It's all right here . . . This Week on Legal Talk Network.

Source: http://traffic.libsyn.com/sr/THis_Week_on_LTN_7-28_Audio_Only.mp3

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Baseball

In yesterday’s news, the Oakland A’s (the best team at this point of the season) announced trades that brought them 2 outstanding pitchers. Why did they do this? After reading Moneyball, you will know why. Teams’ trade activities highlight the two seasons of baseball, the first that will end in a few days and the second that begins after the “trade deadline” date.

I just finished reading “Moneyball: The Art of Winning an Unfair Game.” Great expose by Michael Lewis about the 2002 A’s and their general manager, Billy Beane who changed the way the game is played. How could a team with the lowest payroll in baseball win more games than any other team?

Beane used new data to understand baseball talent, data that was ignored by traditionalists and older scouts. Because of his non-traditional perspective, he was successful in attaining the talent he needed at bargain prices … He won “the game” while being strategic and cost conscious.  I suspect that was what prompted yesterday’s trades.We’ll know by the end of the season.  :-)

Are you doing that in your law firm as well?

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/pdD7dMGSUdQ/

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Litigation Involving Actos, Transvaginal Mesh and Zohydro

A jury determined that drug makers hid cancer risks associated with the diabetes medicine, Actos, from the public. Complications stemming from transvaginal mesh and lawsuits by women against the manufacturers is another case of how a defective product can have a huge impact on a life. Zohydro, a controversial painkiller is making waves when it comes to prescription drug abuse. On this Ringler Radio podcast, host Larry Cohen joins Andy Birchfield and Leigh O'Dell from the Beasley Allen Law Firm, as they spotlight litigation in these cases, causing a stir across the States.

Source: http://traffic.libsyn.com/ringler/RR_041614_Actos2.mp3

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Ariz. Governor Orders Review After Execution Lasts 2 Hours

Death row inmate Joseph Wood took nearly two hours to die by lethal injection. Robert Siegel speaks with reporter Tucson News Now reporter Mauricio Marin about the execution and related legal battles.

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Source: http://www.npr.org/2014/07/23/334646384/ariz-governor-orders-review-after-execution-lasts-2-hours?ft=1&f=1070

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The Federal Laws that Affect Workers Compensation Claims

When a workers' compensation claim is made, there are many elements of federal law that get triggered. Among those elements are the Civil Rights Act of 1964, Family and Medical Leave Act, and Americans with Disabilities Act. As an employer, navigating these intersecting laws can be a challenging task while running a business. On this episode of Workers Comp Matters, host Alan Pierce interviews Melissa Fleischer from the HR Learning Center LLC. Together they discuss multiple federal components affecting workers' compensation claim rights and duties. In addition they talk about when workers can be terminated, healthcare commitments under COBRA, and unpaid leave. Tune in to learn more about different paperwork requirements under the different federal laws plus much much more.
Melissa Fleischer, Esq. is the President and Founder of HR Learning Center LLC with 20 years of law practice experience specializing in employment discrimination litigation. Her HR consulting firm specializes in providing workplace solutions and training to employers on a wide range of legal and human resource management issues. She was previously associated with Epstein Becker and Green in NYC and served as a chapter editor for the Family and Medical Leave Act Treatise, published by the Bureau of National Affairs. Ms. Fleischer is also an adjunct faculty member with the Professional Development Center at SUNY/Westchester Community College in Valhalla, New York and a member of the Society for Human Resource Management (SHRM).
Special thanks to our sponsor, PInow.

Source: http://legaltalknetwork.com/podcasts/workers-comp-matters/2014/06/federal-laws-affect-workers-compensation-claims

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The Biggest Winners of New EPA Rules? States That Oppose Them

The EPA’s draft carbon rule seeks a 30% reduction in emissions and encouraged a switch from coal to natural gas - a switch that will greatly reward gas-producing states.

Source: http://blogs.wsj.com/law/2014/07/24/the-biggest-winners-of-new-epa-rules-states-that-oppose-them/?mod=WSJBlog

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Plaintiff on Hook for Patent Office's Attorney Fees

An 'odd' federal law requires plaintiffs who bring lawsuits challenging the U.S. Patent and Trademark Office's trademark rulings to pay all of the agency's expenses including attorney fees, no matter which side wins, a Virginia federal judge has ruled.

Source: http://www.nationallawjournal.com/id=1202636754148?rss=rss_nlj

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All Zimmerman or All Trayvon Martin

Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.  Aside from John Steele's having raised the question of the ethics of overcharging, there hasn't been a whole lot to write about.

Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter. 

As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.

George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?

The short answer: the judge said they could.

Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.

Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it.  So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise.  That's not happening here.

While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.

Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.

There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.

In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary  manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”

That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out. 

As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.

But most damning is the prosecution's second request of Judge Debra Nelson.

Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.

But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.

"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."

So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º.  Not only is that damning and humiliating, but as West says, it's "outrageous."  What's next, trespassing because Zimmerman walked on somebody else's lawn?

It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.

For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something. 

While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss

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Obama signs order on LGBT job discrimination

[JURIST] US President Barack Obama [official website] on Monday signed an executive order [text; fact sheet] barring federal contractors from discriminating on the basis of sexual orientation or gender identity. The order also explicitly bans discrimination against transgender employees of the federal government. The order does not include [USA Today report] a religious-based exception despite pressure from some religious leaders following the US Supreme Court [official website] decision [opinion, PDF] in the Hobby Lobby case [JURIST report] in June. It...

Source: http://jurist.org/paperchase/2014/07/obama-signs-order-on-lgbt-job-discrimination.php

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Bryan Garner on the Latest Edition of Black’s Law Dictionary

Due out this week is the 10th edition of Black's Law Dictionary. With 16,000 new definitions, 900 new maxims, and terms dated back to their first English usage, Black's Law Dictionary 10th Edition is touted to be the most comprehensive and relevant collection of legal terminology to date. But what goes into making this legal reference and how does it stay relevant in today's world? On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams interview Black's Law Dictionary's editor-in-chief Professor Bryan A. Garner. Together they discuss the army of 300 professionals and scholars who deciphered true meanings from historic documents, ancient language, and modern usage. Tune in to hear Garner describe what goes into updating Black's and why he believes attorneys will continue to use it for generations to come.
Bryan A. Garner is a U.S. lawyer, lexicographer, and teacher who has written several books about English usage and style, including Garner's Modern American Usage and Elements of Legal Style. He has served as editor-in-chief of Black's Law Dictionary since 1995, and coauthored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges, and Reading Law: The Interpretation of Legal Texts. Professor Garner is a prolific lecturer, having taught more than 2,500 writing workshops since the 1991 founding of his company, LawProse, Inc., and he is a distinguished Research Professor of Law at Southern Methodist University Dedman School of Law.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2014/05/bryan-garner-latest-edition-blacks-law-dictionary

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Entropy: It's Not What It Used To Be*

In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.

My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document.  If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.

When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before."  Of course, I can't tell you anything if you don't take or return my call. "Oh."

It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge.  These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.

Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.

God, grant me the serenity to accept the things I cannot change,
The courage to change the things I can,
And wisdom to know the difference.

Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.

You can choose a ready guide in some celestial voice.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.

When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.

The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.

There is a difference between explanations and excuses.  When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up.  Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.

Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem.  Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works?  We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.

It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.

It's hard to fight entropy, but those who do keep the world running.

* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss

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LawBiz® Legal Pad: Ethical Considerations in Collecting Your Fee

Ed discusses managing a client’s fee expectations.

 

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/SRAhfeThnVI/

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All Zimmerman or All Trayvon Martin

Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.  Aside from John Steele's having raised the question of the ethics of overcharging, there hasn't been a whole lot to write about.

Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter. 

As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.

George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?

The short answer: the judge said they could.

Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.

Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it.  So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise.  That's not happening here.

While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.

Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.

There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.

In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary  manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”

That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out. 

As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.

But most damning is the prosecution's second request of Judge Debra Nelson.

Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.

But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.

"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."

So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º.  Not only is that damning and humiliating, but as West says, it's "outrageous."  What's next, trespassing because Zimmerman walked on somebody else's lawn?

It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.

For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something. 

While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss

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