Monday, November 30, 2009

Shoot a Cyclist in the Head, That'll Be, 120 Days


Asheville firefighter Charles Diez got really pissed when he had to tap his brakes for a a couple of cyclists and their child who were riding along what Diez determined to be a dangerous road way.   Mr. Diez pulled ahead of the bicyclists and confronted them.  You know the typical enraged motorist rant, "why-are-you-impeding-my-path-of-travel you freaking commie eco-terrorist, you?!"

So Diez gets out of his vehicle, begins to argue with the male cyclist, pulls a gun and shoots him in the head.  The bullet passes through the bicycle helmet without hitting Alan Simons, the cyclist.  The police charge Diez with attempted murder, the Grand Jury reduced the charge to felony assault with a deadly weapon.

The Asheville Superior Court Judge James Downs felt that 120 days and restitution of $1200 to Mr. Simons for his damaged eardrum should about cover it.

for more:
http://www.mountainx.com/news/2009/former_asheville_firefighter_gets_4_months_for_shooting_cyclist; and
http://www.treehugger.com/files/2009/11/man-gets-120-days-shooting-cyclist-head.php?campaign=th_rss

When You Make a Closing Argument with a Grenade, Don't Pull the Pin.

Yes, that's right, when you bring a grenade to court, and set it out on the jury rail to make a point during closing argument, in this case about "imminent threat," don't pull the pin. 

The Above the Law Blawg links to the following story recounting the tale of the Hutchinson, Kansas lawyer, Sam Kepfield who was defending a Hutchinson, Kansas resident.  The grenade being used for "illustrative purposes" was a dud. The classic moment in this account of courtroom tactics gone awry was when Kepfield pulled the pin on the grenade and asked the jury, "Are you afraid now?"  The jury took all of 15 minutes to convict Kepfield's client.  

The unique courtroom performance by attorney Kepfield triggered a county and state investigation.  

Collections


The New York Times had a great "About New York" column Sunday.  Jim Dwyer reports on Mark Hoyte who received a collection call concerning an unpaid credit card.  Hoyte tells the caller, he never had the credit card and upon further questioning it becomes clear that the caller from the law firm of Pressler and Pressler have the wrong Mark Hoyt, in fact Hoyte supplies details to the collector for this law firm that he is not in fact the same individual who is the debtor on the account.


Pressler and Pressler sue Hoyt anyway.


Last week Mr. Hoyt takes time off work, losing by the way a days wages and goes to court.  Once again he demonstrates that he is not the Mark Hoyte obligated under for the credit card.  The attorney, a Mr. Andy Wang from Pressler and Pressler hem and haws in front of the Judge who is now really pissed that this poor man has been sued for no reason.  Attorney Wang gets defensive and begins lighting into the victim of the frivolous lawsuit blaming the innocent Mr. Hoyte for getting wrongly sued in the first place because he didn't send written proof of his identity to Pressler and Pressler.  Mr. Hoyte explained to this bottom feeding leech that when he spoke to Pressler and Presslet they did not ask for "written documentation."  

Judge Dear has ordered Mr. Wang to arrange for the compensation of Mr. Hoyte for his lost wages or return to court in January for a sanctions hearing.


A fleeting moment of justice to cheer you up.


For more:http://www.nytimes.com/2009/11/29/nyregion/29about.html?_r=1&scp=2&sq=dwyer&st=cse

Don't Drop Dad!

A Phoenix family is suing everyone connected with the funeral of their father.  The Associated Press reports:  "Lawsuits filed by the children, wife and two dozen family members of 50-year-old Robert Gowdy Sr. claim a strap on a casket-lowering device snapped as family was gathered around a grave last year, dropping Gowdy's coffin and breaking it open. Cemetery workers ran away, the family said."



When two family members stepped forward to try to lift the casket, the bottom fell out, literally. Apparently, the casket was of particle board and staple assembly.  Nice.


At the subsequent closed coffin memorial service family members opened the coffin to take a last peek at Dad only to find that he was dressed like a used car salesman wandering the aisles of Wal-Mart in seriously mismatched clothes.  Dad's precipitous fall from the cheapo casket damaged the "burial clothes" purchased for the first go-round.  The funeral home decided not to incur the additional expense of re-attiring Mr. Gowdy with all the splendor of his first fitting.  Real nice.

Sunday, November 29, 2009

No, Insurance Companies Don't Commit Fraud Do They?

When you throw around the word, fraud, you should be very careful.  Fraud or fraudulent at law is different than saying so-and-so is a fraud, or "that's fraudulent."  If you can easily see that something is fraud, by definition it isn't.  Admittedly, when we think about and talk about fraud we think and talk about precisely the same thing, something phony.

For something phony to be legal fraud there must be:  a material misrepresentation by words or conduct through active holding out or through concealment (of something that should have been revealed), which deceives and is intended to deceive another so that they reasonably rely and act upon the misrepresentation to their legal detriment.  My experience is that when clients have sought my assistance in redressing "fraud" the laying out of the elements has usually deterred further action.  The carnival midway is not a place where fraud is found, . . . fools, but not fraud.  Fraud in a generic sense covers all sorts of human sin where one takes advantage of another without rising to the level of "actionable fraud."  The defrauded in general are usually co-conspirators in their own injury, via the full panoply of psychic impulse including envy, denial, gluttony, pride, you get the picture.  Fraud is an alibi, an excuse when we get burned again.

My Cleveland friend, Patrick Perotti, has created a lucrative law practice out of bringing actions against insurance companies, title companies, banks, and businesses who engage in the real deal.  Real fraud happens all the time and it is often intended to surreptitiously scam nickels on top of legitimate profit margins or genuine cost.  Let me give you an example, Grange Mutual Insurance Company (yes, we name names when it suits us) charged a legitimate premium for a certain type of coverage under family auto insurance policies that they offered; but some bright executive at the company decided that the amount they collecting could be double, triple, and more than the law allowed. While the amounts involved were minuscule per family the net effect was millions and millions of dollars for Grange's bottom line without incurring any commensurate risk.  Patrick Perotti figured out how this scam worked and  brought a lawsuit.   After a two day trial a jury near Cleveland awarded $48 million in compensatory damages.  Punitive damages were pending submission to the same jury when Grange agreed to pay $51 million in settlement.

Mercury Insurance of Illinois just got hit by a demand for punitive damages for courthouse fraud.  According to the news account Steven Thomas Kirk was struck by a truck driven by  Mercury's "insured," Enver Hamiti. Kirk.  Hamiti fled the scene, even though " [Kirk's] leg was detached by the accident." Get this gothic detail, somebody walks by and steals a diamond stud earring from Kirk's earlobe as he lay inert at the scene. Kirk sued Hamiti in Madison County, seeking damages.  Apparently Kirk had been drinking, but Kirk's use of alcohol did not play a role in the accident, the jury found Mercury's insured Hamiti fully responsible for causing the accident awarding $1.37 million to Kirk.  


Attorney Chris Kolker is asking the Court to award an additional $500,000. directly against Mercury Insurance Company because he suspects the Mercury Insurance adjuster, claims people and although it doesn't say so, I suspect the defense attorney invented a eyewitness who at trial testified that Steven Kirk was driving his motorcycle erratically, weaving in and out of traffic.  This testimony was offered and intended by Mercury to be relied upon by the jury to the detriment of Steven Kirk.  The only problem with this eyewitness, she testified to seeing the accident happen from her apartment window--she didn't live in the apartment according to lease documents until six months after the accident.   Hmmmmmmm?  Sure sounds like fraud, or at least attempted fraud.  


Bear with me for a sec, reading between the lines it may be that the fraud claim is about "collecting."  Unless Mr. Hamiti was driving a commercial truck, it'improbable that Hamiti's Mercury Insurance policy carried million dollars worth of insurance.  In fact it's probable that the amount of insurance available to pay the jury verdict awarded to Mr. Kirk is in the tens-of-thousands so the only prayer Mr. Kirk has of collecting against Mercury is if the court imposes a direct sanction for fraud against the insurance company and it's claims people.  Other obstacles make it unlikely that Mr. Kirk and his counsel are going to succeed, including jurisdiction of the court to impose such a sanction.  I've talked about the concept of jurisdiction, before in the purest sense--jurisdiction refers to the power of a court, either geographically defined or over the subject matter of an action.  In the motorcycle-car crash the court's jurisdiction is over the parties, Mr. Stevens and Mr. Hamiti and any company Mr. Hamiti was working for at the time of the accident. It will be a matter of Missouri law whether Mr. Steven's fraud claim against Mercury can be heard as part of the underlying lawsuit.  Typically, Mr. Stevens has no claim against Mercury because he has no contract of insurance with them, his remedy is to sue Mr. Hamiti which he did.  Mercury's liability to Mr. Stevens is only for the amount of coverage purchased by Mr. Hamiti.  If Mercury only covered Mr. Hamiti to the tune of $12,500 which is not unheard of--that's all Stevens and his attorney will collect from Mercury.  The balance of the $1.37 million verdict comes out of Mr. Hamiti's pocket, if Mr. Hamiti is like most folks, Mr. Stevens is out of luck.  


Good luck on that fraud claim.  For more:


http://columbus.bizjournals.com/columbus/stories/2007/09/03/daily12.html


http://www.bnd.com/372/story/1028154.html

Saturday, November 28, 2009

Bad to the Bone? Hell, Yes.

Bad Lawyers are born not made.  Nah.  But we adapt to badness pretty damn quick!

Let's face it the process of getting into law school, law school, getting a job or worse making a living from scratch, swimming with the sharks, processing unending injustice, and trying somehow to pay the bills, the taxes, and dare I say it, stay out of trouble, active and passive--can turn anyone into a Bad Lawyer.  I'm sure the ABA has statistics on this, but impressionistically--that my heart beats in pin stripes nearly 30 years after law school is something of an anomaly.  I don't see members of my law school graduating class anywhere very often.

But I digress, are Bad Lawyers, to use my friend, Gayle's construct, ever ontologically evil.  Bad to the bone?  Born Bad?


I do believe that the the predatory aspect of serial killers and rapists play out among lawyers.  Hell, all you have to do is turn on day time television, there they are hundreds of lawyers advertising like crazy to exploit you or your family member's pain and misery, (no cash settlement, no fee).  Flip through the yellow page ads for lawyers, tell me that a lot of these asshats aren't genetically predisposed to go to hell, and take you with them?    The image is one of series of borderline-porn ads for a Texas law firm that specializes in "aggressive" defense of rapists, family child incest perpetrators and child porn criminals.  The firms media advertising and website have been roundly condemned.  Must work, the firm is proliferating this offensive garbage, not taking it down:  http://www.lindemanfrye.com/Criminal-Defense-Overview/Sex-Crimes.shtml

I think we become who we are through Darwinian natural selection.  The shark will eat you to avoid being eaten and the law is the perfect profession for the shark.  The law, in practice, is disgusting, dispiriting, depressing.  In my opinion Ted Bundy was one slightly damaged chromosome away from who I am and who Geoffrey Fieger is.  Opportunistic, predatory, amoral, we are the survivors of a hostile world.   And my luck ran out.

The Mercy Killer



When Lisa Reardon's beloved cat Godfrey died, she drove over to her parent's house and put a bullet in her Dad, hitting him in the ass instead of a more vital organ according to Ann Arbor.com.


While authorities are not saying why the 48 year old "redneck noir" crime novelist wanted to kill her father, the plot summaries for her three published books at her "home page" are suggestive:

The Mercy Killers1968, McGurk's Tap Room in Ypsilanti, Michigan. Death, drugs, war, child abuse, and plenty of laughs.

Blameless: Lack of accountability leads to a dead child, adultery, alcoholism, nervous breakdowns and insomnia.  

Billy Dead:  Realistic portrayal of family life, murder, abuse, incest, and self-mutilation.

Defense counsel may have some material to work with based on the material at Ms. Reardon's website, but I suspect that in her case writer's block may have carried with it a more dangerous dimension.  More at:  http://www.lisareardon.com/  and http://www.annarbor.com/news/crime-novelist-accused-of-shooting-father-in-butt-ordered-to-stand-trial/

Grandma blew .415


The Blue Ash (Cincinnati-area) Police jailed Maria Krull last Wednesday after she was pulled over for speeding.  She had her 5 year old granddaughter in the car. When administered the Breathalyzer Mrs. Krull blew .415 blood-alcohol content level, or 5 times the legal limit in Ohio.  According to the Cincinnati Enquirer website, this is not Mrs. Krull first DWI, she is currently under suspension for a September drunk driving arrest.  The arresting police officer, Mark Ziegler  says this BAC-level is "crazy high," noting that the level of intoxication is among the top five he has seen in his two decade career.

The police prosecutor suggests that jail is probably the safest place for Mrs. Krull during the holiday season, who remains incarcerated with bail set at $32,000.  I'm pretty sure the prosecutor is right; although I doubt that Mrs. Krull can recognize it, just about now, she's lucky to be alive, she's lucky she didn't kill her granddaughter and herself, she's lucky she didn't kill others.  She's at rock bottom, the only question is how much further does she wish to burrow and is she going to take anyone else with her?

Personally, I've been there.

For more on Grandma, for more about the Bad Lawyer keep reading:
  http://news.cincinnati.com/article/20091125/NEWS0107/311250031/Grandma+didn+t+get+run+over++but+she+did+blow+a+.415

Friday, November 27, 2009

Let's see we Pardon the Turkey, we kill the Retard

Texas is planning to kill a mentally-defective (IQ "hovers" around 70) death row inmate for the holiday season.




This pathetic Texas inmate's attorney blew all of his appellate options and rights; so Bobby Wayne Wood's only prayer is clemency from Gov. Rick Perry.  Good luck, there.  For more:  http://www.texasobserver.org/enterprise/retarded-prisoner-faces-execution

Huh?!

See:  http://www.bostonherald.com/news/regional/view/20091126wife-killing_tranny_denied_electrolysis_for_time_being/

Robert "Michelle" Kosilek murdered his wife.  "Michelle" lives as a woman in an all-male prison.  He's suing the department of corrections in Massachusetts for denying him further electrolysis treatments, and while the Judge upheld the denial of further hair removal procedures (he's already received 7 at $500 a piece, thak you taxpayers of Massachusetts), the Judge criticized the Department of Corrections saying they were dangerously close to engaging in "cruel and unusual" punishment violative of the 8th amendment o fthe U.S. Constitution.

I doubt that anyone thinks of me as being terribly illiberal, but every once in a while something comes across my radar screen that reminds me that there is a reason so-called liberal judges earned a bad name.

Then there is the other side of the coin the Judge who throws the book,  on this occasion let's thank the Judge.  Prentiss R. Fulton earned a trip to the Big House for double murder, robbery, and shooting and stabbing his partners in crime. The Kansas Judge Larry D. Harman felt that two consecutive life terms plus 495 years was just about right..  This is a guy we can only hope never gets out.

http://www.kansascity.com/news/breaking_news/story/1593545.html

Thursday, November 26, 2009

Curtis Flowers


This picture is of Curtis Flowers.  


Flowers is on the verge of facing his 6th murder trial in Mississippi for the "execution-style" slaying of Bertha Tardy, a Montgomery County furniture store owner and three of Mrs. Tardy's workers, thirteen years ago.  Flowers has been sentenced to death three times, four of the convictions have been overturned for blatant prosecutorial misconduct, and the fifth trial declared a mistrial after a black juror refused to convict on the evidence.  That juror, James Bibbs, a Vietnam veteran, retired school teacher, and local volunteer football referee was interviewed by the white Judge, abused in open court, arrested, and jailed for perjury!  The charges against juror Bibbs were "quietly" dropped.


For 13 years, Curtis Flowers has sat in jail.  The evidence against him based on motive, Flowers is a disgruntled former employee with a wage dispute with Mrs. Tardy, he has no alibi, on the other hand the forensic evidence against him is "wafer thin" and the eyewitness testimony is doubtful.


Here is what we know, Winona, Mississippi is one of the most racist places in the United States.  It is a place that made the cover of Time magazine in 1937 for the notorious Duck Hill lynchings and murderous southern racism.  In 1963 civil rights activist, Fannie Lou Hamer (who coined the expression,: "I'm sick and tired of being sick and tired") was arrested after being refused service at the Winona bus station lunch counter; she suffered terrible injuries from jail house beatings arranged by the racist authorities.


In addition to the treatment of the juror, Mr. Bibbs by the white Judge, the prosecutorial approach to the case been until the last trial--exclude blacks from the jury.  The US  Supeme Court has held that this tactic denies black Americans fundamental due process.  You think?


Well, our dear Mississippeans have caught the attention of the BBC and other international media.  Here's a link to the BBC story:  http://news.bbc.co.uk/2/hi/americas/8377236.stm

There's a separate website to support the cause of justice in the Curtis Flowers case:  http://friendsofjustice.wordpress.com/2009/09/08/curtis-flowers-and-the-cruel-legacy-of-montgomery-county/

Thanksgiving 2009

Happy Thanksgiving!

When I started this Blawg, I would not have imagined that I'd be able to genuinely utter those wishes.  Life continues to amaze me, this exploration of what I chose to do professionally, and who I became--and your comments, have given me a great deal to be thankful for.

I wish you a very Happy Thanksgiving!

Wednesday, November 25, 2009

Miley Cyrus Slant-Eyes Lawsuit


The LA Times reports that the lawsuit brought against Miley Cyrus by Lucie J. Kim that sought $4,000 per person for each Asian LA teenager offended by this photo, was tossed by the Superior Court.  The lawsuit argued that the 16 year old entertainer had violated a California statute prohibiting race discrimination by corporations and companies.  The violation?  Letting this picture of her and her friends "mocking" Asian eyes be taken, and letting it get published on celebrity websites.  Really.

The only question is why didn't the Judge presiding over this bullshit lawsuit award sanctions against Ms. Kim's attorney, Henry Lee?

http://latimesblogs.latimes.com/lanow/2009/11/judge-dismisses-lawsuit-claiming-miley-cyrus-pic-discriminated-against-asians.html

Lawyers Who Need a Smack

The legal tabloid, abovethelaw.com alerts us to this item at the Texas Lawyer Blog:  http://texaslawyer.typepad.com/texas_lawyer_blog/2009/11/lawyer-sues-church-homeless-day-center-in-houston.html

Yes, a Texas personal injury lawyer is suing a local church that operates a day care center for the homeless near his office.  Attorney Harry C. Arthur "seeks a minimum of $250,000 in damages from defendants Christ Church Cathedral and The Beacon to compensate him for the loss of rentals in his building and the loss of its market value. Arthur alleges The Beacon, which is operated by Cathedral Health & Outreach Ministries, has created a 'health hazard' in the area." 


Mr. Arthur's website notes that he "specializes in soft tissue injuries"--translation:  this is a bottom feeder, folks.  I recognize that I'm pretty hard on the cops, but generally speaking the police, professionally, have it all over lawyers.


Why I hate cops! Let me count the ways...

In Oakland, California, a Bay-Area Regional Transit (BART) cop was filmed beating the snot out of some poor schizophrenic schmuck, running the guy's head into a plate glass window, shattering the window. The victim was charged with assault and battery for the lacerations to the cop.  The video is at CNN.  http://www.cnn.com/video/  

BART is the same department that employed Johannes Mehserle, a cop that murdered Oscar Grant, III,  also caught on video.  The Oakland Tribune is covering the ongoing prosecution of Officer Mehserle see: http://www.insidebayarea.com/  and the full coverage is at:  http://www.insidebayarea.com/oakland-bart-shooting


But the story that really caught my attention is the slaying of wheelchair-bound Canadian singer/songwriter Thomas Reid (of the folk rock group Rehab Mama) by the Texas Rangers in Fort Stockton, Texas last Friday.  Get this, the Texas Rangers say Mr. Reid somehow wrestled a gun away from an able-bodied Texas Ranger and turned the gun on them.  Uh, huh. Right.  For more on this story:
http://www.torontosun.com/news/canada/2009/11/23/11892266-qmi.html

Let me assure you, I could fill this blawg with examples of the police abuse of power, trivial abuses of police authority to fatal failures, every week, week-in and week-out.

Are there good police, you bet.  I know many terrific policemen and women.  Do the police feel under attack by lawyers, the community, and the media?  Undoubtedly. But, when the police stand behind the officers who commit these acts, and rationalize the abuse of power they deserve our contempt and more.

Now, explain something to me, why is one of the BIG STORIES, in heavy headline-rotation, that annoying southern chef, Paula Deen getting boinked in the nose?

Mouthpiece Hall of Infamy: Geoffrey Fieger


Let's see, I think Geoffrey Fieger is the first living honoree in the Mouthpiece Hall of Infamy.

In some ways Michigan trial lawyer Geoffrey Fieger is a hero of mine. He is a sometimes "cause" attorney and beyond-category trial lawyer, sometimes; Fieger is also the guy who, -- among all the shit he says, sometimes says:  what needs to be said to those who need to have it said to them.  He is a verbal flame-thrower.  He is a royal pain in the ass.  In other ways I'm totally repulsed by what he says and does, and more importantly how he says it.  Fieger is most famous for representing Jack Kevorkian, and yet in legal circles he is probably best known as a spectacularly successful personal injury attorney who gets whacked by the legal authorities for outrageous courtroom conduct and language.

Fieger ran unsuccessfully as a democrat for Govenor of Michigan.  Subsequently he and a law partner were criminally prosecuted for illegally funneling money to the John Edwars campaign.  The great Gerry Spence represented Fieger and his law partner obtaining acquittals on all counts.  Recently Fieger settled civil election law charges stemming from the same allegations by agreeing to pay fines of approximately $120,000.

Fieger's best momenst as a "cause" advocate has been his advocacy on behalf of children;  although, I really do admire Fieger's success on behalf of Kevorkian. In all the criminal matters where Fieger represented Kevorkian, Kevorkain was acquitted. Kevorkian's conviction for manslaughter followed a trial where Kevorkian insisted on representing himself.  Self-representation as I've noted before,  is always a bad idea.

Fieger's problem, in my opinion,  is that his courtroom advocacy skills frequently crossover into outrageous, sanctionable, and reversible error--thereby costing his clients.  This is his Achilles' heel, he ends up screwing  the client.   Twice (that I know about, there may be other unreported examples) enormous verdicts:  in Ohio a $30 million dollar jury verdict was vacated due to Fieger's discourtesy; and, alleged trial misconduct in Michigan resulted in the striking of a $15 million jury verdict by appellate courts.  The focus in each case has been on Fieger's discourtesy and flagrant dissembling in court.  Fieger has this tendency according to both Ohio and Michigan of mischaracterizing testimony given on the stand to frame follow up questions that contain grossly false and insulting material. In the Michigan case Fiegere claimed that the defendant doctor was screwing the nurse when he should have been taking care of the patient who had a bad medical outcome. The problem with this "inflammatory" claim was that it was  not supported by a shred of evidence in the record--this at least according to the Michigan Supreme Court, whose opinion is attached via link at the bottom of this post.  The Ohio Supreme Court justice who would have sustained some of the verdict for Fieger's client (that is a Justice who was sympathetic to the plaintiff) suggested that a future a trial court not permit pro hac vice admission (limited admission to practice law in a state where an attorney has not obtained licensure) of Fieger.

After the Michigan Court of Appeals reversed the $15 million dollar award, Fieger who broadcasts legal commentary from his offices in Michigan, made remarks which were so over the top that in 2006 the Michigan Supreme Court publicly reprimanded him (the link to the Supremes Order is at the bottom of this post, the order itself and the personalities and narratives inherent in the order could support a treatise.)

There is very little doubt in my mind that the disciplinary authorities of most other states would have permanently disbarred Fieger based on quoted language detailed in the Michigan opinion the essence of Fiegere's remarks involved sticking objects up the rectums of the appellate court judges and doing various harm to them.  These broadcast remarks coincided with a period in which the court case while no longer pending was in a "reconsideration" period meaning it "could" have gone back to the judges Fieger disparaged.

Fieger is arrogant, rude, obnoxious, abrasive, and according to the courts that have reversed him, a liar.  On the other hand many of these same folks, the Judges who are the beneficiaries of the largesse of insurance companies, chambers of commerce, medical-industrial complex that Fieger is a sworn warrior intent upon opposing.  Fieger is a deeply flawed, but important voice in the wilderness.

It is not a uncommon experience of mine that I've sit in the elegant, marbled mansions of the lucky ones, at the firms with silver service, payroll, and accounts payable departments where the hallways are lined with expensive bri-a-brac, antique furniture, Persian rugs--frequently you will see Hogarth prints.  Which is an ironic thing to find in their offices, Hogarth's object of contempt being precisely these pompous asses. An example of Hogarth on the Justices:

Leaving aside the failure to of Fieger to his client's best interests, (and don't get me wrong, this is my criticism of Fieger), what Fieger is doing is not one whit of difference from what Hogarth did visually and what so many other flamethrowers of other generations have done is total exasperation with Judge Irishname, Judge Italianname, Justice Retardo, Judge AreThereNotPorrHouses, Judge Weirdname and so forth.  A government of and by and for the people is . . . supposed to be FOR THE PEOPLE.

I've been reading Fieger's blog, and maybe I'm projecting, but I sense regret, anxiety, and questioning.  While I disagree with a lot of his message, his manners, and his methods, I recognize Fieger to be at bottom a Bad Lawyer par excellence!

http://www.michbar.org/opinions/supreme/2006/073106/32684.pd

also, Geoffrey Fieger has a blawg:  http://fiegertime.wordpress.com/

a website:  http://www.fiegerlaw.com/about.php

Tuesday, November 24, 2009

Guns in Bars!



The Tennessean is reporting that the Guns-In-Bars law enacted over Governor Bredesen's veto and the nearly unanimous objection of Tennessee's Bar and Restaurant lobby, was struck down by Davidson County (Nashville) Judge Chancellor Claudia Bonnyman.

According to the Tennessean,   "The legislation, passed by the Tennessee General Assembly earlier this year, allowed people with handgun carrying permits to bring guns into bars and restaurants, so long as they were not drinking. Establishments were allowed to 'opt out' of the bill, by posting a no-handguns sign on the front door.

"Nothing says 'family-friendly vacation' like a sign assuring Mom that no shots would be fired while Junior eats his chicken fingers.

"'It was almost worse than the law allowing it,' Spyridon said. 'It compounded the problem. I am a supporter of the Second Amendment, but guns and alcohol don't mix. For an industry like us, you want and have to convey a safe environment.'"

The Tennessean, reports that nearly a quarter million Hillb..., er, Tennesseans have handgun permits.  

Insurance Companies are Douche Bags!

http://www.law.com/jsp/article.jsp?id=1202435726187&Insurer_Must_Defend_Douche_Defamation_Suit__Judge_Says&hbxlogin=1


The link is to Law.com, (one of the great law blawgs), which reports this AM, about the insurance company that sought to avoid providing a defense to an insured, a business man who had called a rival businessman a "douche bag." 


The Court in holding that the insurer was on the hook for a "defense and coverage," held the expression, "douche" or "douche bag" to be an opinion not subject to being proved false and therefore actually not defamatory;  thus the remark is not an "intentional tort" excluded under the businessman's liability insurance policy. 


 See:  http://www.nylj.com/nylawyer/adgifs/decisions/112009gische.pdf

Actual Innocence or Actual Death

One of the first posts to this Blawg was prompted by the remarks of Supreme Asshat 'Nino Scalia, to the effect:  that,  "[the Supreme] court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”



This stunning statement came in dissent to the Supreme Court order remanding the case of Georgia prisoner, Troy Davis who was awaiting imminent execution despite compelling evidence of "actual innocence."   Yesterday, The New York Times reported on the declaration in the State Supreme Court of New York for Manhattan that Justice John Cataldo declared Fernando Bermudez "actually innocent" in overturning a conviction for murder.  Mr. Cataldo spent 18 years in prison for a crime he in fact did not commit.   The judgment of Justice Cataldo hastens the day that jurisprudence in this country will take cognizance of actual innocence as a substantive defense to being put to death; imagine that...actual innocence!  Wake up 'Nino!



On a separate track, the Ohio's official killers think they have figured out how to deal with killing people without the "3-drug cocktail" problem that screwed up the September scheduled killing of Romell Broom (pictured at with the next guy Ohio intends to kill.)  The new 1-drug method is how they kill dogs and cats, and is "more humane" according to the official killers for Ohio.


For more on our "humanity" see:  http://blog.cleveland.com/metro/2009/11/new_lethal_injection_policies.html
and http://www.nytimes.com/2009/11/23/nyregion/23innocence.html?_r=1&ref=nyregion


Oh, and in Iran, the official killers, cut to the chase--your politics will suffice to get you the death penalty; and, in both Iran and Somalia, your alleged sexual activity.  Oh they don't care about actual innocence either. Nice company we keep.

See:  http://www.nytimes.com/2009/11/23/world/middleeast/23iran.html?scp=1&sq=iran%20executions%20&st=cse and ://www.nytimes.com/2009/10/24/world/africa/24somalia.html?scp=1&sq=somalia%20stoning&st=cse

Monday, November 23, 2009

Running a Homeless Shelter, that'll a Get You Jail!

San Obispo Rancher, Dan de Vaul is going to jail because he runs a homeless shelter for 60;  that just irritates the shit out of the local authorities.  After being convicted of the code violations, De Vaul was offered probation, but he knew that he would  and could not comply with the conditions of probation that included orders to correct numerous building and housing code violations.  De Vaul knew that if he took the probation option he'd be back in court, in no time, on probation violations so he decided to skip that step and go straight to jail.  Superior Court Judge John Trice said deVaul's an arrogant SOB.  No doubt.  No word on what the California Judge Trice thinks of Ghandi, Jesus, or Mandela.  For more:
http://latimesblogs.latimes.com/lanow/2009/11/san-luis-obispo-rancher-sentenced-to-jail-for-housing-the-homeless.html  and a link to Sunny Acres, de Vaul's ranch:  http://www.sunnyacresca.com/index.htm

Scared to Death

The Charlotte Observer reported on Saturday that 21 year old Larry Whitfield will spend the rest of his life behind bars for the kidnapping that resulted in the death of Mary Parnell, a 79 year old Grandmother.  Apparently this Brainiac invaded Mrs. Parnell's house in an effort to flee following a failed armed robbery. Whitfield did not touch Mrs. Parnell, but she had a heart attack and died.  For more:  http://www.charlotteobserver.com/nation/story/1068754.html  A Charlotte jury acquitted Whitfield of murder but convicted him on the manslaughter count.

Style Diktats for Lawyers--Shirt's, Ties, and more


If it's Jimmy T, it must be time for Fashion for Lawyers!  Former Congressman Traficant so nailed the whole fashion thing that adding words seems superfluous. 

The photo really does not do justice to the sheer awfulness of what's going on with Traficant-style.  Let's begin with the fact that the only natural fiber in the whole ensemble are his eyebrows and maybe some of the sideburn action.  That he was able to get his customary double-knit in a dark color is surprising to me.  But I'm not here to praise Jimmy's suits or his toupee, but instead I'm here to bury the shirt and the 70s wedding singer ties.


As your Bad Lawyer and fashion guide, I will grant great latitude to shirt and tie choices.  But there must be some standards--the shirt at left is an excellent choice, Hathaway, Arrow, this happens to be a Perry Ellis, it does not matter.  It is traditional.  It is clean and pressed.  As a rule I believe with a classic suit your collar should not be button down, I personally believe that while button down shirts are acceptable, they should only be worn with a blazer and slacks.  I like French cuffs, but they are extra work on those bleary mornings following a late night in the coal mines, and an expense for young lawyers on a budget.  Likewise, I have many custom made shirts all monogrammed BAD--these are magnificent but expensive. In reality there is one absolute rule:  Men: wear a goddamn t-shirt underneath, noone wants to see your torso, noone wants to think about your manboobies, noone wants to smell your manly musk.

Your shirts and blouses do not have to be white, and far too often I see lawyers whose shirts were once white and should have long since been consigned to the dustbins of history.   Respect yourself, folks, when the shirt cuffs and collar begin to fray toss it.  Oh, one word of advice on care:  wear it once, launder, wear it again, launder, repeat...your shirts will last infinitely longer if you launder it.  You will smell so much better if you launder it.  A shirt looks better in my opinion if you have it professionally done, with light starch.   Find a good dry cleaner, make the investment in keeping yourself well groomed.

Ties are a philosophical inquiry unto itself.  The Tie is a gift to mankind from the muses, how can you screw it up?  Look at Jimbo, (above).  In this day and age there is no excuse for not learning how to tie a Tie.  Do not cry to Bad Lawyer, "Bad Lawyer, I was an orphan...I had no Daddy to teach me how to tie my tie, bbbwwwaaaaahhhhhh!"  Suck it up, young lawyer.  In this day and age instruction is a click away:




I leave it to you to screw up tie selection. I myself like traditional tie patterns, stripes, and colors. I won't wear yellow ties after labor day, or before memorial day as I consider that a spring, summer look and I personally avoid faddish ties...can you say, Jerry Garcia? I don't wear light colored ties on dark shirts (in fact I don't wear dark dress shirts.) I love striped shirts but matching a ties with stripes and a suit should not be done by the colored-impaired.


There is much more to be said on this topic. We shall return to lawyer fashions, dos and don'ts, often.

Industrial Death and Injury


Denise Ford, 57, was killed at the Pittsburgh Glass Works factory when a lift she was using triggered the collapse of stacked glass plate.  She was crushed to death.  the preliminary cause of death was blunt force trauma.

Being a Bad Lawyer has it benefits, for one thing my work environment rarely puts me at risk of sudden death from industrial machinery.  I don't risk an amputation loss or other types of maiming from using this laptop.

Over the last 30 years I've handled thousands and thousands of industrial injury claims including injuries involving sudden death.  Trust me, while disgrace, depression, is bad, I would not trade my position with most of the men and women I've known over time who still labor in the factories and foundries, who drive the trucks and fight the fires, and who abate the asbestos.   And as I've discussed, here, I've defended the employers, factories, foundries, power plants, and trucking companies on meritorious and bullshit workers' compensation claims.  I've seen both sides.

I intend to talk about this system some more over the next few weeks.  But for now, thank your lucky stars that you don't spend your work day trying to lift plate glass on warehouse stacks with a tow-motor lift.

See:  http://www.dispatch.com/live/content/local_news/stories/2009/11/22/WORKER21_ART_11-22-09_B3_J0FOQBG.html?sid=101

Sunday, November 22, 2009

Cy-Pres Doctrine

One of my legal heroes is Cleveland attorney Pat Perotti who has pioneered the use of Cy-Pres, an equity doctrine, in the area of charitable giving.


Perotti, a plaintiff's attorney is a highly successful class action attorney, was troubled that large class action settlements and verdicts would go back to "wrongdoer" corporations when persons entitled to class action money failed to file for it.  He and others borrowed the concept of Cy-Pres (pronounced sigh-pray) a doctrine that allows equity courts to do the "closest thing" to what someone who set up an estate, trust or fund of money would have wanted done with their money when the original conception or plan becomes impossible, no longer relevant, or illegal.

Now according to Perotti, corporations and insurance companies are fighting to keep the money they were ordered or agreed to pay for doing legal wrongs.  Perotti and his allies are asking States to enact legislation allowing them to use this money for charitable giving in local communities.  Sounds like a no-brainer.

for more:  http://www.cleveland.com/opinion/index.ssf/2009/11/ohio_lawmakers_should_pass_bil.html

Saturday, November 21, 2009

Guitars, Cadillacs & Hillbilly Music

http://www.tennessean.com/article/20091119/BUSINESS01/911190358/Gibson+Guitar+CEO+leaves+rainforest+group+after+Nashville+raid  and see:  http://artsbeat.blogs.nytimes.com/2009/11/20/gibson-guitars-plant-is-raided/?scp=1&sq=gibson%20guitars&st=cse


Bummer, the NYT "scooped" me on this tale of potential environmental crime.  I caught this a few days ago at the Tennessean website and was prepping a blawg post on the item.   Gibson Guitar's Nashville-area plant was raided by the feds looking for illegal supplies of exotic woods, particularly "rosewood" from the rain forests of Brazil and Madagascar.

I love Nashville and I am a passionate fan of hardcore hillbilly and bluegrass music.  Years ago a friend and I were in George Gruhin Guitars in Nashville playing the vintage Martins.  I get goose bumps thinking about the sound of some of the "pre-war" Martins and Gibsons that I played at Gruhin's, comparing them to newly minted versions of the same guitars.  Guitars, mandolins, and other string instruments are no less sublime than their classical string instrument equivalents.  The pre-WWII instruments are most prized because acoustically these guitars are astonishing.  There are a number of popular pornographic publications devoted to the beauty and desirability of these objects, for instance Fretboard Journal.

A whole lot of years ago I represented a couple of classical guitar teachers and performers and a sound engineer with the world famous Hometown Symphony Orchestra.  These guys started a classical/jazz label and I did the early corporate and contract work for the label and its early artist roster.  These are world class musicians.  Twenty-some years ago my friend Don, one of the guitarist/record label entrepreneurs acquainted me with the whole "exotic woods" problem and it's connection to fine instruments.  The clear cutting of rain forests is an environmental tragedy that implicates artisans of fine musical instruments, furniture makers, and builders.  That the Gibson guitar factory gets raided by the feds tells me that the injunction of Yehuda Berg: we need to choose to be aware--implicates every corner of my life including leisure and entertainment.

If your a business man in, say, Malaysia, Viet Nam, Honduras, the Phillipines, you can buy a child for $12 dollars to work in your third world sweat shop manufacturing jeans sold to Wal-Mart for $2, sold to me the consumer for $15.  Or I can choose to purchase products that meet certain fair trade standards that cost more that may or may not directly effect this human traffic business model.  Likewise I can make choices that affect the pace of the depletion of environmental resources--trust me Hillbilly music isn't going to disappear, thank God!

Friday, November 20, 2009

It's Academic! Keep Your Hands Off the Student Body


Here we have two teachers from Hell; the first a teachers aide, Rebecca O'Malley-Tietz of River Falls, Wisconsin--who had sex with a 12 year old boy then stuck a gun in his face, threatening both him and his family if he were to mention the extra-curricular activity to anyone.

And let's not forget Melissa Koehn of Kenosha, Wisconsin who was all over the love that dare say its name, with a 17 year old student.  The jury went out---hmmmmm, ok, they're back!

http://www.twincities.com/ci_13830369?source=most_viewed  and,   http://www.twincities.com/ci_13836580?nclick_check=1

Tips

See:  http://www.nbcphiladelphia.com/news/local-beat/Time-In-Prison--70426052.html?yhp=1

I love this story!  A Philadelphia-area couple were arrested and charged with "theft of services" because they refused to pay an 18% gratuity.  Gratuity, what is in a word?  When does a word lose its plain English meaning?


As an undergraduate at Our State College (circa 1975-79) I worked part time in the Univeersity's large  Banquets and Catering operation.  I was a recent former, but very young, US Army NCO I quickly became the college catering operation "head waiter."  We "wait staff" (we weren't called "servers," in that era) were actually trained by professionals from the "hospitality" industry who ran this program.  There were such lessons as how to set the table, fold and place linens, china, glasses; how to serve a dish, where the entree` should be relative to the diner; how to pour beverages, wine and so forth.  None of this was terribly difficult, but it did give me a sense that service of this sort was somewhat more involved than coming to the tableside with a tray of meals and demanding that the customer recite for a second time what they ordered before a hot dish is passed to them like so much cafeteria hash.  Nor would I ever expect my diners to be required to "bus" the dishes and silverware afterwards while they sat digesting the meal I just served them.  The world has changed.

Dining out, like air travel, and many other formerly special experiences has been reduced to a very hit or miss experience.  We all have our war stories; I have hundreds--from the waitress who threw a tantrum and quit  her job in the middle of my order (without the restaurant telling me), to the food with unsavory,  mmmmmmm, shall we say "unexpected additions."

But as to tipping, I've always tipped generously, skewing towards 20% and more for extraordinary service (which is rare.)  I tip at tip jars at the local 'bucks without hesitation.   I figure, servers work hard, and are often expected to tip-out other kids working hard, why screw them because no one bothered to train them in the service protocols I learned.  And in a way I get the service I've reluctantly learned to expect.  There have been rare occasions where service bordered on anti-service and I have left nothing--guess, I need to remember that this sort of protest can result in ridiculous criminal charges at least in the City of Brotherly Love.

Rule 11: Sanctions, Baby!


Rule 11 is the baton with which courts and opposing counsel beat and extort bad lawyers and bold lawyers.

Rule 11 of the federal rules of civil procedure and the state rules of civil procedure, require a lawyer to investigate claims made in legal documents that he or she intends to submit and certify by the lawyer's signature that there is a good basis for the factual and legal claims made in the document.  Good idea, huh?  Screw up, and you the lawyer pay out of your pocket.

In theory this is a great rule,  for instance I handled a case where a lawyer sued my clients on behalf of a crazy little old lady who said that my clients, who were her neighbors on either side of her house, were beaming gamma rays into her house screwing with her radio and television reception and peeling the paint off of ther house.  The lawyer was an old time inner city advocate--and, the threat to impose Rule 11 sanctions on him was enough to make a frivolous claim go away.  But think about, these poor folks, the neighbors who had defend the lawsuit--they had to PAY ME to make a preposterous claim go away.

On the other hand, I've brought cutting edge lawsuits where opposing counsel pursued outrageous motions for Rule 11 sanctions over legitimate arguments about the interpretation of facts or disagreements about the law.  An industrial company asked a Judge to award tens of thousands of dollars vis-a-vis me for suing the wrong corporate entity.  The company operated under multiple corporate identities; opposing counsel contended in a Rule 11 motion that the federal court should sanction me for not choosing the right one.  And, I can't count the times I've been threatened with sanctions.  The last time,-- I recounted here, at the deposition of Big Dennis where counsel actually sought sanctions because I asked a "leading question."   It gets crazy, I could have asked the court to award sanctions because the request to sanction me was frivolous.  But I'm already in the process of paying off major karmic debt, so I can't afford that game.

You see, Rule 11 is too often used to pummel good aggressive attorneys.  And no, I don't mean Orly Taitz.

Now I'm going to link to a case that caught my attention from the Legal Profession Blog, so let me issue a caveat, my experience tells me that opinions with outcomes that are inexplicable, or questionable often leave out context that make the decision seem a great deal more reasonable,  but here's a case that had me scratching my head, once again a lawyer ill-advisedly getting involved in a dispute among warring neighbors, aaarrrrrrggggggghhhhhh!:   http://www.typepad.com/services/trackback/6a00d8341bfae553ef0120a6661869970b


Hell, the West Virginia Supreme Court should have taken this lawyer out and shot him!  

Thursday, November 19, 2009

Sheriff Joe Arpaio--What a Tool!



Arizona's favorite Stalinist Sheriff, Joe Arpaio is at it again.  Arpaio told Superior Court Judge Gary Donahoe to pound salt in response to the Judge's Order to the Sheriff's department to publicly apologize for stealing and copying private privileged legal documents from a Public Defender in the Judge's courtroom.

Here, we go again:  let's be clear, under that inconvenient document, the US Constitution there are something called rights possessed by the people, individually.  Numbering among these rights:  the right to a lawyer, the right of due process, the right to be secure in your property, and papers, and, believe it or not, the presumption of innocence.  When a Sheriff's correctional employee steals the paperwork belonging to a criminal defendant's attorney, these and other rights are implicated.  Imagine for a moment that the suspected criminal is a pretty horrible person, the Sheriff's department theft of a lawyer's papers could trigger the issuance of a (federal) writ of habeas corpus.   Which would result in the horrible bad guy going free to commit even more heinous acts.  Good work, Sheriff Joe!

We can legitimately question the wisdom of ordering a County official to hold a press conference to apologize for violating the civil rights of a prisoner;  but, can we even begin to question the wisdom of granting leave to this out-of-control "lawman" to create and maintain his secessionist fiefdom--where Arpaio pisses all over the rule of law?   Outrageous, you bet.

See:  http://ktar.com/?nid=6&sid=1233512

We Need to Choose to Be Aware!

I struggle with the idea of "duty" since the concept implies legal obligation for which a court may impose a sanction.  The reality is that there are myriad decisions that we make in the course of any given hour, day, week, and year that fall far below any legal conception of duty but which result in outcomes: good and bad and disastrous .  We engage in magical thinking when we we exclaim: "why me," "woe is me," and "what the fuck."  Instead of duty let's talk about choice, the need to choose to be aware.

As a rule, I don't like to comment on the BIG STORY which right now is the Fort Hood massacre allegedly perpetrated by Major Nidal Hasan, but the report by NPRhttp://www.npr.org/templates/story/story.php?storyId=120540125 that Hasan's bosses were sending up flares about this character perfectly encapsulates a couple of ideas that I've been pursuing, here.  Right now, there's a lot of what-the-fuck thinking going on about Major Hasan, when in reality hundreds if not thousands of shitty decisions put Nidal Hasan precisely in the place where with guns blazing.  Major Hasan writes another chapter in that book we edit that marks out America as an obsessively violent place.

On another day I'll talk about some of the cases where I've encountered seemingly inexplicable employment decisions--that ended up costing the employer dearly.  But today, I'll not trivialize the Fort Hood disaster with anecdotes from the Bad Lawyer.  By the way the title of this blawg entry is a direct quote from Yehuda Berg, the Kabbalist Rabbi--who I heard speak at an event last night (and, no the Bad Lawyer is not Jewish or related to Madonna.)

Wednesday, November 18, 2009

The Columbus Dispatch Continues It's Series on Domestic Violence

http://www.dispatch.com/live/content/local_news/stories/2009/11/17/DV_Sentencing.ART0_ART_11-17-09_A1_4IFMTII.html?sid=101

The Columbus Dispatch series on Domestic Violence is at the level of Pulitzer Prize quality.  It is filled with facts, statistics and compelling stories and examples.  It continues at the link.

Stop Ignoring Evidence of Crimes Against Women and Children

Yesterday, I talked about several situations where the evidence suggested that something wasn't right, too often that evidence, the evidence of something wrong, something fishy--is ignored.   I was talking to my friend Charlie the other morning and he thinks it's because the evidence of something wrong, often very wrong is not understood and he recounts the apocryphal story of the aboriginal peoples who upon first encountering Christopher Columbus did not see the ships--because as Charlie says they had no neuro pathways for what their eyes were registering, or to put it another way, the native witnesses had no context for the ships that loomed on the horizon.  While this may have been true for the aboriginal islanders who first encountered Columbus--I think this is bullshit on a lot of levels.  We don't see the evidence in front of us because we are lazy--and, evidence of wrong doing means we have a duty to do something that takes us out of our comfort zone.

Once again a town learns that the trusted teacher, volunteer police officer, beloved soccer coach,  is a serial rapist see, http://www.lasvegassun.com/news/2009/nov/15/city-wrestles-its-silence/  The Las Vegas Sun reports that the suburban town of Boulder City Nevada is dealing with revelation that many, many of its children were molested, raped, and filmed in explicit sex acts with Charles "Rick" Rogers.  Rogers who was arrested last April may have been actively molesting boys for 15 years.  Some victims found on explicit films seized by police at the time of Roger's arrest were as young as 10 years of age.

Hundreds of victims?  Undoubtedly.

How does this happen?  Why?

Why?  Goddamnit, why?

I don't mean, Rick Rogers, he is one more pedophile that fell off the pervert tree--how is it that the parents, the aunts and uncles, the teachers, the doctors, the adults in this town ignored what had to have been overwhelming evidence of these crimes being committed against their children?  I want to know where the screw is loose.

I saw it with the priests, but with the priests you could say well, these parishioners were all in Father's thrall.   Or Father was inadvertent, or misunderstood, or the poor man.  And it was so much easier to cover up for Father, move him around when people began talking.

But this guy!  A single man, with a passion for being with young boys!  The physical evidence was in your children's clothing.  What aren't you getting, Boulder City?

Elsewhere there is a great deal of agony and outpouring of anger in Cleveland, Ohio right now with the discovery of the serial killing of, at last count, 11 women.    These women were lured from the streets, raped and strangled and left to rot, the stench filling the streets--no response from the adults, the building inspectors, the police.  See:  http://blog.cleveland.com/metro/2009/11/cleveland_woman_says_police_fa.html


Are we not neighbors, are we not brothers and sisters?  Don't we owe something to one another, to our students, our families, to our children.  Are we all so selfish that we can't spare a moment to ask ourselves are my children safe?  Are my children in a safe place?

We need to stop ignoring the evidence of crimes against women and our children.  We need to get out of our comfort zone on so many levels--that abandoned house two doors down, why aren't we recognizing that it presents an obligation to be vigilant that it not be used for criminal activity.  Gee, what would it take to cut its grass, to pick up the circulars, the trash, to report the comings and goings of non-residents? There are so many little things that we can do in the compass of twenty-four hours to make a difference not only in our individual world, but in the larger community without doing a whole lot.

Tuesday, November 17, 2009

Sometimes Something Smells Fishy



As I've said before, I love bicycling and bicycles.  The pictured bicycle is a a very expensive carbon professional road racing bike made by the Pinarello Company of Treviso, Italy.  As equipped, this bicycle and bicycles like it will set you back a least a cool $10,000-plus.  Racing bicycles have special pedals called "clipless" that work with special shoes that ironically clip into the pedals.

So it's surprising to the shop owners when a customer rolls this bicycle into Revo Cycles of Dana Point, wanting the mechanic to install "flat" pedals.  The customer, dressed in shorts, no shirt, and flip flops was not exactly rockin' the "roadie" look either.  The mechanic Mike Mayefske installed the pedals and wrote down the bicycle serial number, suspicious that the purported owner was perhaps pedaling a purloined Pinarello.

A few calls later, bingo!  See:  http://www.bicycleretailer.com/news/newsDetail/3395.html  One other thing about expensive road bicycles, your tires are inflated through a "presta" valve versus the type of valve on most bikes (and cars) called shrader valves.  So the customer unsuccessfully tried to pump air into the tires at a gas station (a bad idea for many reasons) but was unable to, when he returned to the bike shop for an "air job" the stolen bicycle was recovered by the police who were alerted by the Bike Shop.  Get this, the mechanic stalled the hippy dippy customer with the ol'--this type of air compressor needs to warm up routine.

Similarly, the Las Vegas Sun  http://www.lasvegassun.com/news/2009/nov/16/5-arrested-in-attempted-nevada-bank-robbery/ is reporting that 5 men showed up at a Vegas area bank with a search warrant that entitled them to seize all the cash in the local Wells Fargo bank vault.  The dubious bank manager refused to honor the warrant despite being handcuffed--and there are now 5 thwarted would-be bank robbers in custody.

Shortly after I became a lawyer, a distraught family, all adult children, came to the office because their father, a NASA engineer had died in a swimming pool while on his second honeymoon with his new wife who was half his age.  Funny thing was Dad never swam a day in his life.  Dad had never taken a swimming lesson, and except for the shower, Dad had an aversion to water.  Our office was the fifth law office they visited seeking some help, no one listened to them.  Hell I wasn't exactly burning up the legal profession at that point in my life, (or for that matter at this point in my life) so I listened to them.  Turns out, new wife didn't kill Dad as my clients suspected but when we got the records from Florida as part of our investigation, the ambulance report reflected something of tremendous interest. The EMTs reported standing at poolside, unable to make out the body of this African American just below the surface.  Dad who must have been secretly taking swim lessons, or, more likely, emboldened by a sudden shot of testosterone--drowned disoriented in the hotel pool.  The autopsy showed no drugs, no alcohol, no trauma, no evidence of foul play.

Being the sharp-witted intake associate, I received a $1,000 bonus out of the multi-million dollar wrongful death settlement shared between the family, new mom, and the attorneys.

Above The Law--Always a Must Read


The Above The Law Blawg is a must read.  Provocative, hilarious, well-written, and a commentariat worth chuckling over.   One of their continuing items is the "lawsuit of the day/week,"  which features such items (I beat them to this oddity) as the following:  woman sues over headaches allegedly caused by shampoo bottle falling on her damn head.
see:  http://www.press-citizen.com/article/20091116/NEWS01/91116012/1079/

According to the lawsuit Mary Jones was at La' James International College, when a large shampoo bottle was dropped on her head causing her injuries:  to wit, two years of headaches.  Unfortunately, the Des Moines Register article leaves more questions than answers.  I confess that as I go through my day I will suffer intrusive thoughts of poor Mary and falling objects of all sorts that might harm her or others.

Seriously, though haven't personal injury attorneys done enough to undermine respect for the law?  Can you say McDonald's Hot Coffee?  Let me be clear, I fully confess to having played my part in this game.  I've represented some real doozy(s).

I promise, we will continue to explore the absurdities of a legal career built on the pursuit of the ambulance and the suffering of others, pro and con.  Yeah, I concede there are positives, whether the positives balance the insult to our intelligence remains to be seen.  What a noble profession the law is!

The Doctrine of Laches Lives!

The Supremes will not hear the appeal of the native American group that appealed the decision of the Court of Appeals for Wahsington DC upholding the opinion of US District Judge Colleen Kollar-Kotelly that the doctrine of laches barred this 1992 lawsuit seeking to cancel the Washington Redskins' Trademark as "offensive" to native Americans.  The Redskins trademark has been in continuous use  since 1933.

Laches are not potato pancakes.

Laches is the equitable principle that says, in the immortal words of Travis Bickle: "you looking at me?"  It means: if you're going to go to court, GO TO COURT.   Don't wait.    Or as I was saying to a colleague the other day over my epic burrito, Vigilantibus non dormientibus √¶quitas subvenit.  Which means something in Latin.


Back in the good old days, even before I was a young Bad Lawyer, there were courts of equity and courts of law.  Equity courts (Bankruptcy being a vestigial example, at least pre-code) handled requests for writs, injunctions and estate matters.  Decisions from courts of equity were not supposed to have import as precedent, as opposed to law courts.  The distinction does not exist both "courts" being merged under the modern rules of procedure.  


The doctrine of laches operates as the broader principle that persons who may have a claim, or standing to challenge a legal usage in court are not to "sleep on their rights."  You snooze, you lose.


For more :  http://www.washingtonpost.com/wp-dyn/content/article/2009/11/16/AR2009111601298.html?hpid=moreheadlines

Monday, November 16, 2009

What a Dick! Part Deux

When last seen North Carolina Senator Richard Burr was busily stacking crates fulls of money he collected from defense contractors and the Chamber of Commerce for, inter alia, opposing the Franken amendment that barred mandatory arbitration provisions in defense contracts.  You know, those provisions in employment contracts that bar workers from speaking out and going to court for trivial grievances like, getting kidnapped and gang raped.

Now the former lawn equipment sales manager is sponsoring legislation to enable mentally ill veterans to get and keep, and bear arms.  According to the Library of Congress/Thomas Blog Senate Bill 669 would protect the 2d amendment rights of mentally incapacitated veterans.  See:  http://www.thomas.gov/cgi-bin/bdquery/z?d111:SN00669:@@@D&summ2=1&

What a Dick!

What do you tell a woman with two black eyes? Nothing you haven't told her twice before.

It's a shame, but it should come as no surprise that news stories generating moral outrage and reader response usually involve violence against animals, while violence against women and children, nada.  The Columbus Dispatch reports that, the story of the Columbus-area firefighter who shot his dogs to avoid arranging care for the pets while he vacationed,  generated thousands of letters and calls to local media, while the murder of Christine Lyles by the father of her two little babies engendered silence.

The video is of the sentencing of Kelly Juntunen who beat his wife, as the Judge said:  "like a rag doll" for interrupting his game of "guitar hero."  This smirking asshole is one of the few in Ohio to get the maximum sentence, 6 months beating someone half to death.  Domestic violence is the one crime of "attempted murder" that is still only a misdemeanor in Ohio.


I continue to be amazed  that (mostly) men can justify acting out rage in inexplicable acts of violence upon those they claim to love.  As a lawyer and a member of the human community that we value the plight of animals over the plight of our daughters, well I'm ashamed.

For the larger context, the Columbus Dispatch story is terrific: