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Saturday, November 30, 2013
The Presidential Race and the Judiciary
On November 6, 2012, people across the States will cast their vote for President. Whatever the outcome, it will influence our justice system. Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams join Kenneth L. Manning, a professor of political science at the University of Massachusetts at Dartmouth and Professor Carl Tobias from the University of Richmond School of Law, to discuss everything from diversity in the courts, Supreme Court vacancies and obstruction and the impact on the justice system.
Handling and Preventing Shoulder Injuries
“There has been a dramatic rise in shoulder injuries in the last five to ten years,” Doctor Michael Ackland says, maybe we’ve just gotten better at diagnosing them. On this episode of Workers’ Comp matters, your host, Attorney Alan Pierce, will chat with Dr. Ackland, an examining physician who has worked with a fair amount of attorneys and insurers on shoulder injuries.
Dr. Ackland is an orthopedic surgeon and sports medicine specialist. He focuses in arthroscopic reconstruction of the shoulder and the knee. What he considers to be the most gratifying cases are revision surgeries after a patient has had a failed shoulder surgery.
Tune in to hear the basics of shoulder injuries, why they happen, preventative exercises, and how to handle a work-related injury.
Dr. Ackland is an orthopedic surgeon and sports medicine specialist. He focuses in arthroscopic reconstruction of the shoulder and the knee. What he considers to be the most gratifying cases are revision surgeries after a patient has had a failed shoulder surgery.
Tune in to hear the basics of shoulder injuries, why they happen, preventative exercises, and how to handle a work-related injury.
Breaking: Supremes to Hear Challenge to Contraceptive Mandate
This just in: The U.S. Supreme Court Tuesday morning agreed to review the constitutionality of the Patient Protection Act's contraceptive requirement.
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LinkedIn for Legal Professionals
Lawyers consistently tell us that LinkedIn is the social media platform that makes the most sense for lawyers and other legal professionals. They like the professional and business focus of LinkedIn as compared to the "personal" focus of Facebook and other platforms. However, lawyers also always tell us that they wish they could use LinkedIn better than they do now. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell and special guest Allison Shields discuss the new book, LinkedIn in One Hour for Lawyers, how lawyers can make better use of LinkedIn, and some practical tips lawyers and others can implement right away with LinkedIn.
Judge Wilkinson Calls Demise of Filibuster a ‘Sad’ Moment
A prominent federal appeals court judge says he worries that the Senate's deployment of the "nuclear option" will have the effect of populating the courts with ideologues.
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Social Media and Lawsuits
From "tweets" to Facebook status updates, social media has taken over how we communicate with the outside world. It has also become a large part of our legal system. Social media is now considered key evidence in both criminal cases and civil lawsuits. Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi examine the surge in social media-based evidence and claims in litigation, as well as the importance of educating attorneys on the ins and outs of social media with Attorney Antigone Peyton, Founder and CEO of Cloudigy® Law, PLLC and Attorney Ernest Svenson, solo attorney and blogger.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/social-media-and-lawsuits/
TAR Update: Precision, Recall, F-measure & Kleen Products Revisited
The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack joins Ralph Losey, Partner at Jackson Lewis, as they take an in-depth look at how lawyers and experts are leveraging information science in arguments regarding the effectiveness of Technology Assisted Review, keyword search and everything in-between. In addition, on the Bits & Bytes Legal Analysis segment, Kroll Ontrack Legal Correspondent, Elliot Westman revisits Kleen Products v. Packaging Corp. of America.
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Command Prompt
Radley Balko picks up yet another incredibly sad story borne of the inherent conflict between protect and serve out of Hillsborough County, Florida. From the Tampa Bay Times:
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Allen Daniel Hicks Sr., 51, was found stopped in his car on the side of Interstate 275 by a sheriff's deputy and a Florida Highway Patrol trooper the morning of May 11, 2012. Passers-by had called 911 after they saw Hicks' Chevy Cavalier swerving west into a guardrail, records of the incident show.
Speaking incoherently and unable to move his left arm, Hicks was arrested on a charge of obstructing a law enforcement officer when he did not respond to commands to exit his car. Just after noon, he was booked into the Orient Road Jail.
As police approached Hicks' car on the side of the interstate, one of two things could have happened. They could have sought to determine if he was okay or the could have acted in a way that enforced the First Rule of Policing without regard to why a car was stopped on the side of the road. They chose the latter.
Police always invoke their "life and death decision-making" as a justification to cut them some slack in the performance of their duties. It's a cop-meme upon which they can rely to rationalize a poor outcome from a wrong choice. The approach to Allen Hicks' car reflects the fallacy of the rationalization.
Hicks wasn't approached because he was thought to be a bad guy, a criminal, a person who threatened anyone, police officer included, with harm. He was there, on the side of the road, where he shouldn't be in the ordinary course of affairs. Something was amiss. What that something was, however, was an unknown.
Dealing with an unknown is very much a part of the police function, but that doesn't turn every unknown into a threat to police safety and a violation of The First Rule. There was nothing about Hicks to suggest any threat to police. Rather, it was the initial choice made, to approach as if a threat existed and issue a command, that gave rise to a hostile and fearful attitude by police.
Lunsford and Guzman became worried when Hicks did not obey commands to show his hands and exit the car. Seeing that Hicks' left hand was drooping into the side pocket of the driver's door, the officers pulled their handguns.
Hicks still acted befuddled, saying to Lunsford, "that's a 9-millimeter semiautomatic gun that you have," the report states. After ascertaining Hicks was unarmed, Lunsford and Guzman pulled him out of the car through the passenger door and handcuffed him.
When an officer commands a deaf man to do something, he won't comply. He can't hear. There is absolutely nothing the deaf man can do about it, as not even the command of a police officer enables a deaf man to hear. He attempts to alert the officer to his inability to hear, which is later characterized as "erratic" or "threatening."
The officer doesn't "know" the man is deaf, and thus assumes the noncompliance to reflect a threat and challenge to the officer's authority, which (as the officer is trained) is an intolerable situation that is most likely to result in harm befalling the officer. The officer acts upon the perceived threat. On a lucky day, the deaf man is merely tased, beaten and cuffed. On a bad day, he ends up like Hicks.
The initial perception that Hicks was, in some inexplicable way, acting criminally pervaded the perception of him in what followed:
Hicks did not receive a medical screening, but was put in a cell where he lay facedown on the floor or tried to crawl using the one working side of his body. On the night of May 12, soaked in his own urine, his brain choked of blood, he was at last taken to Tampa General Hospital and diagnosed with an ischemic stroke. He slipped into a coma and died within three months.
The Hillsborough County Sheriff's office didn't deny they blew it, and their failure resulted in Hicks' death. It would have been hard (though not impossible) to do otherwise. They announced a plan to train their deputies better to discern the symptoms of a stroke.
But that covers a tiny aspect of what went horribly wrong here. They can retrain cops to be more aware of a stroke, or of a deaf person, or of mentally ill person, but they will never be capable of providing such exacting training for every ailment, situation, circumstance that life will put in their way. The fault isn't lack of specific training to identify a stroke, but of the approach, the attitude, that every unknown is assumed to be a threat to their safety such that they will shoot first, tase first, beat first, arrest first, under The First Rule of Policing.
But what of their safety, you ask? Is it not reasonable for a police officer to operate under the default assumption that everything they don't know constitutes a potential threat? Is it not reasonable for a police officer to ground his conduct in his desire to make it home that night unharmed?
Yes. And no. It is not unreasonable for a cop to want to live, and not want to risk his life. It is similarly not unreasonable for a deaf man or a stroke victim to want to survive. It is not unreasonable for either to believe that being deaf or suffering a stroke will not result in their execution, whether quickly by bullet or prolonged by subsequent neglect. And if we're forced to make a choice between who bears the risk of death, the risk must fall on the person who deliberately chose to wear a shield with the knowledge that he selected a job that was potentially dangerous.
Yet Allen Daniel Hicks Sr, is dead for nothing. Feeling badly about it afterward isn't a solution. Neither is the money his family will get from the lawsuit. He should have lived.
© 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/2013/07/16/command-prompt.aspx?ref=rss
Friday, November 29, 2013
Third Circuit Joins With the Seventh, Ninth and Eleventh Circuits in Holding That Plaintiffs Asserting 1933 Act Claims Need Not Plead Compliance With the Statute of Limitations, Splitting With the First, Eighth and Tenth Circuits
In Pension Trust Fund for Operating Engineers v. Mortgage Asset Securitization Transactions, Inc., No. 12-3454, 2013 WL 5184064 (3d Cir. Sept. 17, 2013), the United States Court of Appeals for the Third Circuit joined the Seventh, Ninth and Eleventh Circuits, holding that Section 13 of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. § 77m, does not require plaintiffs asserting a claim under the 1933 Act to plead with particularity compliance with the statute of limitations. In doing so, the Third Circuit split from the First, Eighth and Tenth Circuits, potentially triggering review by the United States Supreme Court.
Plaintiffs, purchasers of mortgage-backed securities, sued UBS AG and several of its subsidiaries (collectively, “UBS”) for alleged misrepresentations in the securities’ offering documents and registration statements. As of September 18, 2007, when plaintiffs purchased the securities, both Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s (“S&P”) had rated the securities AAA. However, being comprised entirely of loans originated by Countrywide Home Loans, Inc. (“Countrywide”) and Indymac Bank, F.S.B. (“Indymac”), the securities rapidly lost value, and were subsequently downgraded — to B2 by Moody’s on February 20, 2009, and to B by S&P on August 13, 2009. Between late 2007 through 2009, as the financial crisis began to unfold, many news articles also highlighted the alarming default rate for Countrywide and Indymac loans.
Plaintiffs filed their original complaint on February 22, 2010, asserting claims under Sections 11, 12(a)(2) and 15 of the 1933 Act, 15 U.S.C. §§ 77k, 77l(a)(2) and 77o. Plaintiffs subsequently filed an amended complaint, which the United States District Court for the District of New Jersey dismissed without prejudice, ordering plaintiffs to plead with particularity in a further amended complaint that their claims were timely under the applicable statute of limitations set out in Section 13 of the 1933 Act. Defendants moved to dismiss the second amended complaint (the “SAC”) on the basis that the 1933 Act claims were untimely. The district court agreed, applying an inquiry notice standard to determine that the plaintiffs’ claims were untimely, and dismissed the SAC with prejudice. Plaintiffs appealed.
The Third Circuit first took issue with the district court’s ruling that plaintiffs must plead compliance with Section 13. Section 13 requires 1933 Act claims to be brought “within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence.” 15 U.S.C. § 77m. The Third Circuit rejected the reasoning adopted by the First, Eighth and Tenth Circuits that plaintiffs asserting 1933 Act claims must affirmative plead in the complaint compliance with Section 13 because “when the very statute which creates the cause of action also contains a limitation period, the statute of limitations not only bars the remedy but also destroys the liability.” Cook v. Avien, Inc., 573 F.2d 685 (1st Cir. 1978). Instead, the Third Circuit joined with the Seventh, Ninth and Eleventh Circuits, holding that “requiring a plaintiff to plead compliance with a statute of limitations would effectively ensure that a timeliness issue would always appear on the face of a complaint, thereby shifting the burden to the plaintiff to negate the applicability of the affirmative defense.”
The Third Circuit next considered the district court’s application of the inquiry notice standard to determine when the plaintiffs’ limitations period began to accrue. Under the inquiry notice standard, statutes of limitations start to run when a plaintiff “would have discovered general facts about the fraudulent scheme by the defendant rather than specific facts about the fraud perpetrated on her.” The Court held that the district court failed to apply the discovery standard announced by Supreme Court in Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010). In Merck, the Supreme Court held that a claim under Section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b), accrued “(1) when the plaintiff did in fact discover, or (2) when a reasonably diligent plaintiff would have discovered, ‘the facts constituting the violation’ — whichever comes first.” Id. at 1789-90, 1793. The Third Circuit held that Merck, though it dealt with claims under the 1934 Act, was still applicable to the instant 1933 Act claims, because “both statutes incorporate the word ‘discovery,’ which the Merck Court identified as a term of art representing the discovery rule.” The Third Circuit went on to adopt the Second Circuit’s reasoning in City of Pontiac General Employees’ Retirement System v. MBIA, Inc., 637 F.3d 169, 174-75 (2d Cir. 2011) [blog article here], holding that “a fact is not deemed ‘discovered’ until a reasonably diligent plaintiff would have sufficient information about that fact to adequately plead it in a complaint . . . with sufficient detail and particularity to survive a 12(b)(6) motion to dismiss.” Id.
Despite holding for plaintiffs on both the pleading requirements and applicable standard for measuring timeliness, the Third Circuit ultimately upheld the district court’s dismissal of the SAC. Plaintiffs argued that a reasonably diligent plaintiff would not have discovered the misrepresentations regarding the securities until the rating downgrade by Moody’s on February 20, 2009. The Court disagreed, noting that on September 9, 2008, a class of plaintiffs that included the lead plaintiffs in the instant action had “filed an amended class action complaint in the California Superior Court against both Countrywide and UBS Securities, asserting claims under Sections 11, 12(a)(2), and 15 of the [1933] Act that were substantially similar to those in this case.” Given that plaintiffs had been aware of serious issues involving mortgage backed securities sold by UBS and comprised of loans originated by Countrywide and Indymac in September 2008; and that a subsequent investigation that would lead to the discovery that plaintiffs may have viable claims would take no more than two months, plaintiffs were precluded from bringing the instant action any later than November 2009.
Pension Trust has not only placed the burden of testing whether 1933 Act claims are timebarred squarely on defendants, but also has eased the standard for measuring the limitations period in plaintiffs’ favor. Furthermore, there is a clear spilt between the Circuits regarding the issue of pleading timeliness of 1933 Act claims, potentially triggering review by the Supreme Court in the future.
For further information, please contact John Stigi at (310) 228-3717 or Sarah Aberg at (212) 634-3091.
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The Legal Toolkit is Back
Wondering where The Legal Toolkit has been for the past six months? Never fear, Jared Correia, your host and a Senior Law Practice Advisor with Massachusetts Law Office Management Assistance Program ( Mass. LOMAP), is back. In this month’s episode meet the new co-host Heidi Alexander, also a Law Practice Advisor with Mass. LOMAP, who will be the newest addition to The Legal Toolkit team. Before joining LOMAP, Alexander ran a solo law practice and a web consulting business. She has practiced employment law and litigation, clerked for a justice on the highest court of New Jersey, and worked helping entrepreneurs launch and grow their businesses at a nonprofit women’s business assistance center. She is currently serving on the board of directors of a community arts nonprofit, as a special needs mentor, and as a coordinator and facilitator for girls in underserved communities. This episode will introduce Alexander and give her a chance to further outline her background, expertise, side projects, volunteer positions, and finally, her strong loyalty to her home state of Minnesota.
Source: http://legaltalknetwork.com/podcasts/2013/03/the-legal-toolkit-is-back/
Claims College for Litigation Managers
The Claims and Litigation Management Alliance (CLM) is a national organization with over 20,000 members in the claims and litigation management profession. In 2013, CLM will launch the first national resource for continuing education called Claims College. On this Ringler Radio podcast, host Larry Cohen hears from guest, Adam Potter, Executive Director for CLM about Claims College, the faculty of senior level industry leaders and curriculum for Claims Management, Professional Lines and Workers' Compensation.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/claims-college-for-litigation-managers/
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Straight From The Hole
It's far easier to wrap your head around torture when it involves the infliction of active pain. That doesn't make passive pain, the infliction of often unbearable psychological punishment, an less torturous. And it happens regularly, and many time arbitrarily, as explained in an op-ed by Wilbert Rideau, who served 44 years for manslaughter in Louisiana.
Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
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Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.
Without having been there, it's likely inconceivable to understand what happens to a mind in isolation. Some of us have trouble being alone for an hour, an evening, a day. Add day upon day, year upon year. But not the way it is for us, where we still have access to television or internet, even if there is no other living person around. No, this is completely different.
But to add insult to injury, don't leap to the assumption that if a prisoner ends up in the hole, he must have done something pretty bad to deserve it.
In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.
The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.
Punishment can be deserved or not. There's no due process in prison. There's no one to complain to about being punished based on a false accusation, a trumped up allegation, a guard pissed off by an attitude. Authorities own the lives of prisoners, and can be as harsh as they want to be, as arbitrary as they feel like. And there isn't a damn thing you can do about it.
Rideau explains that the prison protests in California are an outgrowth of a system run amok and no other means of addressing their grievance.
And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.
While prisoners are sentenced to incarceration, no judge sentences them to isolation for decades. There is no requirement that any neutral party review the decision to inflict this torture on another human being. It can be imposed for a sound reason or no reason at all. Who is to disagree? But no matter what the reason or nonreason, to put a person in the hole for years, for decades, is to impose psychological torture of a terrible kind on a human being. And there is nothing, absolutely nothing, the prisoner can do about it.
In California, inmates did the only thing left for them to do, protest. Not too many of us care about what happened to "criminals." After all, bad dudes who did bad things to other people. A pox on them. They get what they deserve and their out of sight, out of mind. But there is good reason to give them just a little bit of though. For one thing, they are still people, and we are still purportedly a civilized society that doesn't condone the needless brutal treatment of people. But if you lack anything remotely resembling empathy, than do it for your own sake:
Why should you be concerned about the inhumane conditions of prolonged solitary confinement, with all the social, emotional and mental deterioration that it entails? Well, every year men from California’s Pelican Bay and other supermax prisons around the nation are released directly from the vacuum of their cells into free society, to live and work among you and your loved ones. As a matter of self-preservation, maybe we should all join the prisoners’ request for rehabilitative opportunities that will improve the mental health of those in solitary.
Go say "hi" to the guy who moved in down the block kids. So what if he spent the last two decades in the hole and seems a bit odd. I'm sure he'll get over 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/2013/07/17/straight-from-the-hole.aspx?ref=rss
LawBiz® Legal Pad On the Road!: When to Hire
Today Ed revisits a topic he discussed a few months ago. This week's clip will have you consider answer 2 important questions: What can you gain by hiring a new person, and how much will it cost?
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/AWhNvS0Lei4/
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The Railroad Lawsuit That Could Not Stop
- John Gallagher, one of surviving railroad workers.
- The Wall Street Journal
Source: http://blogs.wsj.com/law/2013/11/26/the-railroad-lawsuit-that-could-not-stop/?mod=WSJBlog
Lawyers Swarm to Ghost Blogging, But is it Ethical?
The days of just having a website are over. With the increase in social media profiles and supplementary links lawyers need to rank well in search engines, it’s no surprise they are farming out their blogging, and whatever else they can, to keep up. There are many services out there which will provide blog posts, but does this fit within the Model Rules of Professional Conduct? According to lawyer and blogger Kevin O’Keefe, ghost blogging defeats the purpose of blogging and, with no disclosure, is unethical.
Kevin O’Keefe is the founder and CEO of Lexblog, a leading provider of social media and blogging to law firms. After working as an attorney for 17 years, successfully marketing his firm online, he redirected his energies to educating lawyers about the use of social media and blogging. He also writes Real Lawyers Have Blogs.
On this edition of The Digital Edge, hosts Sharon D. Nelson, Esq. and Jim Calloway are joined by O'Keefe to discuss the purpose of blogging and the ethical dilemmas of ghost blogging.
Kevin O’Keefe is the founder and CEO of Lexblog, a leading provider of social media and blogging to law firms. After working as an attorney for 17 years, successfully marketing his firm online, he redirected his energies to educating lawyers about the use of social media and blogging. He also writes Real Lawyers Have Blogs.
On this edition of The Digital Edge, hosts Sharon D. Nelson, Esq. and Jim Calloway are joined by O'Keefe to discuss the purpose of blogging and the ethical dilemmas of ghost blogging.
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NSSTA’s Leadership
Whether you are a member or just someone interested in structures, National Structured Settlement Trade Association (NSSTA) is the voice of the industry. Ringler Radio host, Larry Cohen joins colleagues, Randy Dyer, the current President of NSSTA and John Machir, President‑elect of NSSTA, to talk about the bigger issues that are facing the structured settlement industry today and some of the leading items on their agenda for 2012.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/09/nsstas-leadership/
Thursday, November 28, 2013
LawBiz® Legal Pad On the Road!: The Virtual Law Office
In this technology-driven age, a lot of lawyers' work can be moved online. Today Ed discusses the virtualization of law offices to help you consider whether or not that move makes sense for you.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/qqtbd4WPH_g/
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Dayton appoints new judges for 10th District
Gov. Mark Dayton has appointed Suzanne Bollman and Amy Brosnahan to fill two vacancies in the 10th Judicial District, he announced Thursday.
Bollman, a Ramsey resident, is the Assistant Sherburne County Attorney and specializes in criminal prosecution. She has served as a prosecutor in Stearns County, Benton County, and the City of St. Cloud. Bollman has been a member of the Supreme Court Gender Fairness Implementation Committee, the Ramsey Public Safety Board and has been a union negotiator. Bollman replaces Judge Elizabeth Martin who retired earlier this year. She will be chambered in Center City.
Brosnahan, who lives in Knife Lake Township, is the Kanabec County Attorney. Before entering the public sector, Brosnahan practiced intellectual property law, products liability law and contruction litigation at Leonard, Street and Deinard. She has served on the board of the Methamphetamine Task Force/Substance Abuse Coalition, as well as the Paradise Theatre in Mora, Minn. Brosnahan replaces Judge Hunter Anderson, who also retired this year. Her chambers will be in Cambridge.
Source: http://minnlawyer.com/minnlawyerblog/2013/11/21/dayton-appoints-new-judges-for-tenth-district/
Android Devices for Lawyers
We are happy to announce that The Digital Edge is now a part of Legal Talk Network. Since 2007, Digital Detectives co-host Sharon D. Nelson, Esq. has been co-presenting another podcast, The Digital Edge: Lawyers and Technology, with Jim Calloway. Calloway is the director of the Oklahoma Bar Association’s Management Assistance Program. He frequently writes and speaks on legal technology issues, Internet research, law office management, and ethics for lawyers. The Digital Edge invites noted legal technologists, authors, and lecturers to discuss topics related to lawyers and technology.
This episode of The Digital Edge features guest Jeff Taylor, also known as “The Droid Lawyer,” to discuss how lawyers can efficiently use Android phones, tablets and computers in their practice.
Jeffrey Taylor is an Oklahoma City Attorney. He has been writing the popular blog “The Droid Lawyer” since 2011, educating lawyers on how to get the most out of their Android devices. His first Android device was the original Motorola Droid, which he discovered was a useful tool for his profession. His practice focuses on personal injury, small business litigation and immigration.
Learn more about Android’s newest operating system, Jelly Bean, the top Android apps for lawyers, how to prevent security and malware issues with Android devices, and much more.
This episode of The Digital Edge features guest Jeff Taylor, also known as “The Droid Lawyer,” to discuss how lawyers can efficiently use Android phones, tablets and computers in their practice.
Jeffrey Taylor is an Oklahoma City Attorney. He has been writing the popular blog “The Droid Lawyer” since 2011, educating lawyers on how to get the most out of their Android devices. His first Android device was the original Motorola Droid, which he discovered was a useful tool for his profession. His practice focuses on personal injury, small business litigation and immigration.
Learn more about Android’s newest operating system, Jelly Bean, the top Android apps for lawyers, how to prevent security and malware issues with Android devices, and much more.
Source: http://legaltalknetwork.com/podcasts/digital-edge-podcasts/2013/05/android-devices-for-lawyers
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EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706
Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).
The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.
The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.
The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.
Source: http://www.lawmemo.com/blog/2012/11/eeoc_can_use_te.html
Dubious in the First Degree
While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don't always bear out this sensibility. It's done it again by publishing Lawrence Downes' homage to ignorance in its editorial notebook.
Payback is a bitch, and to the extent Downes' screed offers anything, it's the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR's advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it's well deserved.
This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.
For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.
Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.
Hundreds? Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing "daily golf" using the New York Times version of math?
The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.
Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It's just money.
So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board's disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.
Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI's as well. Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don't conform to the narrative of payback.
It's not that this doesn't give rise to issues. A railroad disability isn't like a disability that applies to desk jockeys. It's an occupation disability, where it's given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.
Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people? The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits.
Even putting aside these and myriad other "details" wholly ignored by the media, there remains a flagrant flaw:
The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.
Meet the new criteria for terminating rights by the federal government, dubiousness. Forget "beyond a reasonable doubt," "preponderance of the evidence" or "probable cause." Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of "dubiousness" for deprivation?
Disenchanted riders are counting on the feds and the L.I.R.R. to get the money back, and send the belated message that the schemers will be punished.
It's not about proof of wrongdoing. There is no proof of wrongdoing. The only "proof" is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let's not muddle up anger with facts). As long as people are angry, we don't need no stinkin' evidence.
Lest someone get the misimpression that it's just the Times feeding into the anger and ignorance that pervades the media attention, Newsday offered an editorial as well:
Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits -- a hassle, probably, but a crucial step to whittle out those who committed fraud.
Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process? The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government's job easier.
As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn't obscure the facts, my rage doesn't make me desire payback from innocent targets.
For those of you who rail about constitutional violations when it comes to the police, what's being done here isn't materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness.
But then, you aren't getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it's just too hard to muster any sympathy. Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let's just burn them all at the stake and call it a day.
© 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/2013/07/08/dubious-in-the-first-degree.aspx?ref=rss
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Making Selling Easier for Lawyers
Why is selling so hard for lawyers and what can you do about it? On this September edition Jared Correia, the host of The Legal Toolkit and Senior Law Practice Advisor with Mass. LOMAP, joins Stephen Seckler, principal of Seckler Legal Consulting and Coaching, to talk about selling vs. marketing, how important referrals are for attorneys and some of the key things that get in the way of attorneys successfully generating work.
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/09/making-selling-easier-for-lawyers/
Welcome Back, Spitzer
Nature abhors a vacuum, and Eliot Spitzer didn't have much to do after his foray into TV punditry crashed and burned, a few times. It was a match made in...New York. The disgraced former governor, marauding attorney general, overly ambitious assistant district attorney, horn-dog hypocrite and liar, now wants to do the books for New York City.
Well, not really do the books, as he wants to use the oversight authority of the Comptroller's office to once again become the sheriff of something. He got a lot of mileage out of playing sheriff, as the public loves the pretense of someone in public officer "fixing" the people they hate. Few were able to create targets of derision better than Spitzer, enough so that when he used bazookas to go after flies, even innocent flies, the only sound from the groundlings was applause.
At Cato, Walter Olson reminds us of who this Spitzer guy was before his fall from grace. But hubris never takes a day off, so Spitzer made his pitch:
© 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.
Well, not really do the books, as he wants to use the oversight authority of the Comptroller's office to once again become the sheriff of something. He got a lot of mileage out of playing sheriff, as the public loves the pretense of someone in public officer "fixing" the people they hate. Few were able to create targets of derision better than Spitzer, enough so that when he used bazookas to go after flies, even innocent flies, the only sound from the groundlings was applause.
At Cato, Walter Olson reminds us of who this Spitzer guy was before his fall from grace. But hubris never takes a day off, so Spitzer made his pitch:
On “CBS This Morning,” Spitzer said, “I sinned, I owned up to it, I looked them in the eye, I resigned, I held myself accountable. I think that was the only right thing to do. There’s a record there that I hope they will look to and say, ‘yes, the comptroller’s position is one that fits his skill set and we hope that we can bring him back for public service.’”Some might think the generous thing to do, particularly from someone inclined toward redemption as befits a criminal defense lawyer, would be to accept his concession of wrongdoing, the price he paid by giving up the post of governor with his wife (could she be described as cuckolded?) forced to stand next to him as if this wasn't a humiliation so far beyond anything she could ever imagine happening to her.
And yet, while his announcement has produced no end of hilarity in some circles, it should be taken with brutal seriousness. George Santayana's warning comes to mind, though it strikes me as needing a slight adjustment here. It's not that we've forgotten the past of Eliot Spitzer, but maybe we just can't muster the will to reject him despite the past. There just isn't anyone else around who has enough name recognition, star stature, to interest us, unless Kim Kardashian jumps into the race.
It's not that there aren't other people whose ideas are worthy of our political consideration, but, heck, Americans need to be spoonfed what they think because critical thought makes our head hurt and takes us away from important bonding time at fast food restaurants and in front of computer gaming consoles.
"Spitzer? Yeah, I remember that name. He was, like, somebody once, right? Pass me a beer."
Even local newspapers aren't particularly outraged. In fact, because of what the New York Post calls a "talent drought," they are preparing to do what they never do: forgive. Newsday says his candidacy is "worth a look," a curious position given its rush to convict the amorphous unindicted and forgive the admitted criminal. The Daily News takes a more level headed approach, relating the hard facts of his failures as governor to the job of comptroller to remind people that Spitzer would be a disaster even if he wasn't pond scum otherwise.
Since SJ isn't political, you might wonder why I've written a post about Spitzer, who wouldn't be eligible to vote no less run had he been prosecuted like a regular guy for what he did. Because Eliot Spitzer would be the first guy, aside from Rudy Giuliani and Joe McCarthy, to string you up for a millisecond of adoration.
Is it unduly hopeful to believe that the age of the popular appeal of the avenging angel is over? Is it wrong to hope that the public bloodlust for "getting" someone, anyone, so that we can pretend we've rid society of all the people who make our lives unpleasant and can go back to a time when we can only take for ourselves?
Eliot Spitzer reflected the worst of us. Then he was gone, destroyed by his own hand as the overly righteous should be. And now he's back? Will we reject him and all he represents because we've had enough of the avenging angels? Or are we as still as angry and mindless as we were when he was crowned governor?
Go away, Spitzer. Just go away.
© 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/2013/07/09/welcome-back-spitzer.aspx?ref=rss
Wednesday, November 27, 2013
Future Law Office: Top Technology Trends Reshaping the Legal Field
In this video podcast of The Robert Half Legal Report, Charles Volkert, executive director of Robert Half Legal, and Robert Ambrogi, co-host of Lawyer2Lawyer on the Legal Talk Network discuss how law firms and corporate legal departments are leveraging technology to improve services and streamline workflow. They share key findings from Future Law Office, Robert Half Legal’s annual research program that examines important developments in the legal profession.
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THE PRACTICE: DOJ Using Old Law in New — and Worrisome — Way
Government has more ammunition with its recent reliance on a financial reform act passed in the 80s.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202629807588&rss=rss_nlj
LawBiz® Legal Pad: Raising Legal Fees
Ed recognizes that raising your legal fees just doesn't "fly". This week, he offers some tips to raise the revenue of your firm without necessarily raising your fees.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/7-s6E8_iiTk/
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Who Represents Corporate America
Our annual survey of the law firms that work for the nation's largest companies takes a global focus.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202625300999&rss=rss_nlj
Italy court begins trial in absentia of Egyptian cleric
[JURIST] Egyptian cleric Osama Moustafa Hassan Nasr [JURIST news archive] has gone on trial in absentia in Italy on charges of criminal association with the goal of terrorism and aiding illegal emigration with the goal of terrorism, based on an investigation from 2002. Before the investigation could be concluded and charges filed, Nasr was kidnapped [JURIST report] from a Milan street on February 17, 2003, through the Central Intelligence Agency's (CIA) [official website] extraordinary rendition program. Prosecutors requested [AP report]...
Source: http://jurist.org/paperchase/2013/11/italy-court-begins-trial-in-absentia-of-egyptian-cleric.php
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No Claim for Coast Guard Rescue Efforts
A woman cannot sue the U.S. Coast Guard for her husband’s wrongful death for its alleged negligence in delaying a search and rescue effort after a report that the couple, experienced sailors and strong swimmers, were late returning from taking their 20-foot long motorboat out to watch July 4 fireworks; the 4th Circuit says the ...
Source: http://valawyersweekly.com/2013/11/25/no-claim-for-coast-guard-rescue-efforts/
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Maritime Injuries and Structured Settlements
You don't hear much about maritime law until a huge disaster like the Costa Concordia cruise ship, which ran aground off the coast of Italy earlier this year. But the fact is, maritime accidents happen frequently and people are often left severely injured. On Ringler Radio, host Larry Cohen and co-host, Keith Christie join guest, Attorney Charles Leche, a partner at Deutsch, Kerrigan & Stiles, as they take a look at maritime law and how injured parties can have a financially secure future through structured settlements.
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New Zealand judge rejects refugee status based on climate change
[JURIST] A New Zealand High Court [official website] judge on Tuesday held that two Kiribati citizens, could not be granted refugee status [decision, PDF] based on the effects of climate change on Kiribati. Ioane Teitiota and his wife moved to New Zealand from the island nation of Kiribati in 2007 and had three children born in New Zealand. As New Zealand does not grant citizenship based upon birth in the country, the entire family faces deportation because the couple has...
Tuesday, November 26, 2013
Sound The Retreat (Update)
Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society? It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
© 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.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
© 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/2013/07/15/sound-the-retreat.aspx?ref=rss
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No Claim for Coast Guard Rescue Efforts
A woman cannot sue the U.S. Coast Guard for her husband’s wrongful death for its alleged negligence in delaying a search and rescue effort after a report that the couple, experienced sailors and strong swimmers, were late returning from taking their 20-foot long motorboat out to watch July 4 fireworks; the 4th Circuit says the ...
Source: http://valawyersweekly.com/2013/11/25/no-claim-for-coast-guard-rescue-efforts/
Code X: Stanford Law's Hotbed of Legal Technology Startups
In the Law Technology News June cover story, "Silicon Startups," reporter Tam Harbert describes how Stanford University's Law School has become the "vortex" for entrepreneurship in legal technology. The law school has joined forces with the University's engineering and computer science departments to create the Center for Legal Informatics laboratory — dubbed Code X. Among the results is Lex Machina, a startup offering a rich database of intellectual property litigation information that helps law firms, corporate counsel, and the government refine their trial and settlement strategies. The company just completed a second round of funding, infusing $4.8 million into its war chest. Law Technology News Editor-in-Chief Monica Bay welcomes attorney Roland Vogl, executive director of Code X, to discuss this exciting project on the June edition of Law Technology Now.
Plaintiffs May Seek Punitives in Suit Over Allegedly Disfiguring Cancer Drug
Punitive damages are fair game for plaintiffs suing Novartis Pharmaceuticals over a metastatic bone cancer drug they claim caused permanent disfigurement, a federal judge has ruled, finding that Pennsylvania law would apply to the issue of punitives rather than New Jersey law.
Social Media and Lawsuits
From "tweets" to Facebook status updates, social media has taken over how we communicate with the outside world. It has also become a large part of our legal system. Social media is now considered key evidence in both criminal cases and civil lawsuits. Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi examine the surge in social media-based evidence and claims in litigation, as well as the importance of educating attorneys on the ins and outs of social media with Attorney Antigone Peyton, Founder and CEO of Cloudigy® Law, PLLC and Attorney Ernest Svenson, solo attorney and blogger.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/social-media-and-lawsuits/
Fire Alarm During Law School Exam Poses Test for Dean
A fire alarm that rang out during a high-stakes exam posed an interesting test for the dean of one of the world's most prestigious law schools.
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Plaintiffs May Seek Punitives in Suit Over Allegedly Disfiguring Cancer Drug
Punitive damages are fair game for plaintiffs suing Novartis Pharmaceuticals over a metastatic bone cancer drug they claim caused permanent disfigurement, a federal judge has ruled, finding that Pennsylvania law would apply to the issue of punitives rather than New Jersey law.
Monday, November 25, 2013
The Firm Leader – Mastering Difficult Conversations
Attorneys can turn into leaders by successfully engaging others during difficult conversations. Learn more about handling these tough talks, how to prepare and how to get the results you want during these conversations on the Un-Billable Hour with host Attorney Rodney Dowell, the Executive Director at Lawyers Concerned for Lawyers and Director of LCL’s Massachusetts Law Office Management Assistance Program and expert guest Karen MacKay, President of the consultancy Phoenix Legal Inc.
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LawBiz® Legal Pad: Raising Legal Fees
Ed recognizes that raising your legal fees just doesn't "fly". This week, he offers some tips to raise the revenue of your firm without necessarily raising your fees.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/7-s6E8_iiTk/
Dispute Over Cracked Bell Reverberates at Harvard
The cracking of a bell inside Harvard University's hallowed Memorial Church has touched off a legal dispute between the university and an Ohio company that repaired it.
Source: http://blogs.wsj.com/law/2013/11/22/dispute-over-cracked-bell-reverberates-at-harvard/?mod=WSJBlog
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Personal Audio vs. Electronic Frontier Foundation: The “Podcast Patent” Dispute
Personal Audio’s founder Jim Logan created and patented an idea which, in his eyes, covers the concept of podcasting. “This is the story of the American inventor,” Richard Baker, Personal Audio’s vice president of licensing, says. Personal Audio has filed lawsuits against several podcasters and media companies, claiming patent infringement by popular programs such as NBC’s The Adam Carolla Show and by CBS for its podcast distribution of multiple shows including The Voice and Meet the Press. On the other side, The Electronic Frontier Foundation (EFF) has spearheaded a campaign dubbed “Save Podcasting!” to rescind Personal Audio’s patent. EFF’s goal is to revoke Personal Audio’s right to compensation from any podcast program. Daniel Nazer, a staff attorney working on the campaign, represents EFF on the program.
On this edition of Lawyer2Lawyer Bob Ambrogi and J. Craig Williams talk with Richard Baker and Brad Liddle, Personal Audio’s president of licensing, and Daniel Nazer of EFF to hear their thoughts on what defines a patent troll, the specifics behind the cases, and more.
Special thanks to our sponsor, Clio.
On this edition of Lawyer2Lawyer Bob Ambrogi and J. Craig Williams talk with Richard Baker and Brad Liddle, Personal Audio’s president of licensing, and Daniel Nazer of EFF to hear their thoughts on what defines a patent troll, the specifics behind the cases, and more.
Special thanks to our sponsor, Clio.
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